eLessons

Rule 37: When IT Meets IP

The most important sentence of the court’s opinion in Armstrong Pump, Inc. v. Hartman, contained one word:  “Enough.”  After more than four years since the lawsuit was filed, discovery is far from complete, the case is far from ready for trial and the Court made a point to note “its frustration with the continual and growing animosity between the parties” which has “slowed the progress of the case” and “required repeated judicial intervention.” In February 2005, the parties’ relationship began when defendant Hartman/Optimum entered into a License Agreement with plaintiff Armstrong concerning three patents that defendant owned.  The License Agreement contained several restrictions, including that Armstrong had no rights to “field implementation” of the patented product.  At its essence, the dispute arose when Armstrong allegedly breached the License Agreement by utilizing the “field implementation” when the Agreement explicitly prohibited such use.  Defendant accused Armstrong of exceeding the limited scope of its license rights and therefore breached or threatened to breach the License Agreement. What began as a somewhat typical breach of contract case quickly devolved into a flurry of document production disputes.  Optimum initially served Armstrong with two sets of discovery requests seeking for “all documents” pertaining to the License Agreement, communications between Hartman and Armstrong and the alleged “field implementations.”  Over Armstrong’s protest, Optimum filed a motion to compel, which the court granted.  The court, however, cautioned Armstrong “not to engage in piecemeal production of materials it has located” that are, in fact, responsive.  Because Armstrong never filed a motion for a protective order, Optimum served a second set of discovery requests pertaining to marketing efforts and customers that might provide relevant information regarding the use of “field implementation” technologies.  Again Armstrong protested and again, the court granted a motion to compel. The most recent discovery dispute contains allegations of delays, omissions, and misrepresentations, and “threatens to make this case more about document production than about breach of a contract.  After the second motion to compel, Armstrong made at least nine separate document productions and produced over 34,000 documents before the first deposition was even taken.  In that first deposition, Optimum deposed Thomsen, who was an Armstrong Director, and he revealed to Optimum for the first time that any Armstrong product using the relevant patents went through a five-step development process.  This deposition led Optimum to accuse Armstrong of withholding documents and information related to the development process. Optimum now argues that information recently acquired should have been provided years earlier and that Thomsen and other pertinent employees need to undergo further deposition to reflect the newly acquired information.  Optimum believes that Armstrong is hiding or delaying information about unauthorized sales that violate the License Agreement and that therefore, Armstrong should be sanctioned and ordered to compel further responses. Armstrong counters that it has been sufficiently responding to the discovery requests and accuses Optimum of demanding more information and documentation without reviewing what has already been handed over.  Armstrong also argues that Optimum did not follow Rule 37 of the Federal Rules of Civil Procedure by meeting with Armstrong to discuss its concerns prior to filing the current motion. After taking the time and effort to express its frustration at this exceedingly adversarial case, the court goes on to write that certain requests have “wasted the court’s time.”  The court further notes that “no one, in this history of the case, has objected to any discovery requests enough to make a motion for a protective order” under Rule 26(c).  The court goes as far as to accuse the bickering parties as preferring that “the Court forget what the actual claims are in this case and start obsessing over [frivolous] details.” After explaining the foundational premise of Rule 37, helping to enforce proper conduct, the court hands down an order finalizing once and for all what documents Armstrong must produce.  The court utilizes a refined keyword list, based on certain phrases that appear repeatedly in previous motions, to rule that Armstrong must “search ALL corporate documents, files, communications, and recordings for EACH of the above phrases.” When the search is complete, a representative of Armstrong along with Armstrong’s counsel must file a sworn statement confirming that Armstrong made a good-faith effort to comply with the court’s order of production.  The court concludes by warning that failure to comply will lead to sanctions under Rule 37(b)(2)(A) and puts Optimum on notice that “the Court will not hesitate to apply to the same approach to its document production.” Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts, where she earned her B.A. in English and Political Science.  She will receive her J.D. from Seton Hall University School of Law in 2015.  After graduation, Nicole will serve as a clerk to a trial judge of the Superior Court of New Jersey in the Morris-Sussex Vicinage. 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When Is “Discovery On Discovery” Improper?, Part 2

In Freedman v. Weatherford Int’l, Ltd., Weatherford hired law firm Latham & Watkins to review allegations of security fraud made to Weatherford’s whistleblower hotline. Latham found no evidence of fraud. However, a second investigation was conducted by Davis Polk & Wardwell, LLP. Plaintiff’s alleged that Davis’s second investigation reveal that Latham actually discovered evidence of wrongdoing. Plaintiffs sought reports comparing the results of Weatherford’s production with search terms and productions related to the two investigations and search terms proposed by the plaintiff, in order to test the adequacy and reasonableness of Weatherford’s initial production. Weatherford objected, noting that Plaintiff had no legal basis for its request and its requested production was “hugely burdensome.” The District Court for the Southern District of New York held that the plaintiff’s request was “outside the bounds of Rule 26 of the Federal Rules of Civil Procedure . . . [because they did] . . . not proffer an adequate factual basis for their belief that the production [was] deficient.” Plaintiff’s claim that Weatherford’s production was deficient because 85% of the pages produced related to different case was too conclusory. Furthermore, the Court was not surprised that Weatherford used dramatically different search terms here compared to search terms used in the two investigations and a related action, because of the differing class periods and varying false statements. The court also addresses arguments related to Subject matter waiver and the crime-fraud exception of the attorney-client privilege, but these arguments were not related to e-discovery. Aaron Cohen, a Seton Hall University School of Law student (Class of 2015), focused his studies in the area of Family Law. He participated in the Seton Hall Center for Social Justice’s Family Law Clinic. After graduation, he will clerk for a judge in the Superior Court of New Jersey, Family Division. Prior to law school, he was a 2011 cum laude graduate of The George Washington University Columbian College of Arts and Sciences, where he earned a B.A. in Psychology. Want to read more articles like this?  Sign up for our post notification newsletter, here.

To Preserve or Not to Preserve? THAT Is the Question

This dispute stems from Plaintiff Linda Riley’s slip and fall at a Marriott hotel in Hawaii (her husband, James, is another named plaintiff).  As a result of this fall, in simple terms, Riley broke her right leg and sustained permanent nerve damage including sensory motor loss and weakness in her right foot.  Riley contends Marriott was negligent for failing to remove accumulated water (it had been raining that day), provide a non-slip surface, or provide warning signs. The entire accident was recorded on Marriott’s security cameras, and according to the loss prevention manager, the footage is maintained for 30 days.  However, during discovery, instead of being provided with several hours of footage, Riley was only provided with about 7 minutes; the rest was destroyed.  The footage released began about one minute before Riley’s accident, and ended before Riley was even lifted off of the ground! Plaintiff rightfully believed she was prejudiced because:  (1) she is unable to determine how much water was removed from the location and how long it took hotel staff to remove it, and (2) that the loss prevention manager’s testimony regarding the footage cannot be meaningfully challenged because the footage was gone.  This recording was apparently turned over to the Marriott’s liability insurance carrier, but neither Marriott’s investigation into its destruction (if one occurred) nor the results of any such investigation were ever disclosed.  Even maintenance logs—that might have also denoted any water that was removed from the floor or the placement of any signs—were also allegedly destroyed. From this, the court “easily” found Marriott had a duty to preserve both the sweep logs and the video footage from the day of the accident.  Further, the court recognized Marriott’s failure to offer any justification for its failure to preserve the evidence.  For these actions, the court found “at a minimum, gross negligence.”  The question then turned to imposing sanctions. Fortunately for Marriott, their answer was not stricken.  Nonetheless, their failure to preserve evidence still resulted in an adverse inference instruction regarding the video footage, or lack thereof.  This means the absence of a recording can, at trial, corroborate Plaintiffs’ statements that there were no warning signs at the time of the accident and that water had also accumulated on the floor.  Of note here, the jury would not be required to make such an inference.  However, Marriott might not be eager to take that chance.          Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Should a Party Inform its Adversary that it has Inadvertently Disclosed Privileged Information During Discovery in Order to maintain that Information’s Privileged Status? Certainly in Less Time than Three Months!

Please be very careful when turning over discovery to adversaries! Every reasonable precaution should be made to ensure that privileged information is not being turned over. Obviously, accidents do happen and no matter how careful a party may be, sometimes privileged information will slip by and be disclosed to the opposing party. However, in such an instance, do not wait three months to inform the opposing party about the error. Well, only if the disclosing party wants to keep the information privileged, of course! Franklin Square Associates has provided a blueprint for what not to do when privileged information has been inadvertently turned over. Suit has been brought against them by the Gloucester Township Housing Authority in a dispute over the availability of subsidized residential housing. Among the thousands of documents that Franklin Square turned over in discovery were two letters (amounting to three of the thirty-five hundred pages produced) between the Managing Agent of Franklin Square and his attorney. Defendant Shaun Donovan of the U.S. Department of Housing and Urban Development (HUD) brought a motion asking judge to declare that the letters were not covered by the attorney-client privilege, but that even if they were, the privilege has been waived due to their disclosure in discovery. Without question, the court said, the letters contained privileged information. They were communications between a lawyer and her client, in which legal advice was sought and offered. They represented the quintessential example of what is covered by the attorney-client privilege. So the issue here, then, was whether the privilege had been waived. To make this determination, the court analyzed the facts of the case through five factors the Third Circuit uses to decide whether a party’s disclosure has waived privilege: (1) the precautions taken to prevent inadvertent disclosure; (2) the quantity of inadvertent disclosures; (3) the extent of the disclosure; (4) the extent of any delay and the measures taken to rectify the disclosure; and (5) any overriding interests of justice. Regarding the first factor, the court noted that Franklin Square failed to set forth any precautions taken to avoid this inadvertent disclosure! They failed to produce a privilege log and failed to mark any documents as “confidential” or “privileged.” Franklin Square instead said that there were just too many documents to go through. If a party has resorted to using that as an excuse, it is very difficult to feel sympathy for them and the predicament they find themselves in. Parties must be more careful than this! The court found that this factor favored a finding of waiver. Regarding the second factor, the court noted that this current motion to declare the letters unprivileged concerns just three out of thirty-five hundred documents. Therefore, the inadvertent disclosure was de minimis in the grand scheme of things. This was another factor favoring waiver. Regarding the third factor, the court did not feel badly for Franklin Square in this situation because the production of these letters concerned clearly privileged information and yet Franklin Square did nothing to mark the documents as confidential or as communications between an attorney and her client. These letters warranted more scrutiny than that, and so due to the carelessness at play here, the court found this factor to be yet another in favor of a finding of waiver. Regarding the fourth factor, the court found that Franklin Square did not attempt to rectify the situation until more than three months after the inadvertent disclosure! Not only that, these same letters had been produced in a prior state court hearing, meaning these documents had now been disclosed twice! Clearly this favored a finding of waiver. Finally, regarding the fifth factor, the court did not find any overriding interests of justice here to warrant maintaining the privileged status of the documents despite the multiple errors committed by Franklin Square in this case. Therefore, the court held in favor of HUD, and declared that attorney-client privilege had been waived in regards to the letters. The takeaway here? Always, always, always take all reasonable precautions to ensure that privileged information is not being produced in discovery. Even if this information is somehow turned over, notify the opposing party right away to avoid waiving the privileged nature of those documents. Do not wait more than three months to do something about it! Logan Teisch received his B.A. in Government and Politics from the University of Maryland, College Park in 2012. He is now a student at Seton Hall University School of Law (Class of 2015), focusing his studies in the area of Criminal Law. Logan’s prior experiences include interning with the Honorable Verna G. Leath in Essex County Superior Court as well as interning with the Essex County Prosecutor’s Office. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Can Attorney-Client Privilege Be Used As Both A Sword And A Shield? No, Not When Attorney-Client Privilege Is Being Used As A Litigation Strategy

Attorney-client privilege is a complex and often misunderstood aspect of discovery. This privilege generally protects a party from being compelled to disclose confidential correspondence between the party and the party’s attorney. The traditional purpose of attorney-client privilege is to serve as a shield to prevent a party from being forced to turn over the strategies, opinions, and work product of an attorney. However, it is possible, under the right circumstances, for a party to waive the privilege in order to prove a fact vital to the party’s case. Such was the circumstances in Cormack v. United States. In this case, the plaintiff claimed that a mail-sorting system used by the United States Postal Service (USPS) is infringing on his patent for the device. The USPS and the manufacturer of the mail-sorting system, Northrop Grumman, claimed that the mail-sorting system utilized by the USPS is an independent creation. The issue in the case became the date on which the plaintiff conceived the invention and whether that date was earlier than the date on which the USPS’s manufacturer conceived the invention. The defendant was able to prove conception of the idea in July 2004. The plaintiff proceeded to waive attorney-client privilege and disclose correspondence with his attorney regarding applying for a patent for the mail-sorting device dated November 2003. After the disclosure by the plaintiff, the defendant submitted a motion to compel the plaintiff to turn over all other documents being withheld under the guise of attorney-client privilege. The court stated that the proper standard for compelling privileged information is “all other communications relating to the same subject matter.” The court was particularly concerned with the concept of fairness stating, “the aim is to prevent a party from disclosing communications supporting its position while simultaneously withholding communications that do not.” In this case, the subject matter was determined to be all documents regarding the date of plaintiff’s conception of his mail-sorter idea. The plaintiff sought to maintain privilege for numerous communications between himself and his attorney both before and after the date a patent was filed for. The court stated that the plaintiff must disclose any documents regarding conception of the mail-sorter regardless of the date on which the communications were created. The court specifically stated, “[the plaintiff’s] privilege waiver to apply to communications related to the date of conception, date of reduction to practice, and due diligence, generated both before and after the filing of the patent application.” The court did however create a distinction between communications regarding applying for the patent and emails regarding defending the patent. The court also held that the plaintiff has no obligation to produce documents and communications attendant to patent prosecutions relating to the other topics. Emails between the plaintiff and his attorney leading up to the prosecution of the patent were also deemed to be protected by privilege. It is imperative to consider the evidentiary value of all documents relating to the same subject matter before waiving attorney-client privilege. If you seek to admit certain documents regarding a certain subject matter covered by attorney-client privilege, all documents relating to the same subject matter must also be turned over to your opponent. Courts are concerned with notions of fairness and will generally not allow a party to selectively waive privilege in order to use it as a sword and a shield. Before waiving privilege, separate documents into distinctions of subject matter, do not make arbitrary distinctions between documents. Then weigh the potentially beneficial and potentially harmful value of all the documents relating to the subject matter in question. Once the value has been determined, only waive the privilege if, on the whole, the documents are clearly beneficial. Daniel received a B.A. in Criminology and Criminal Justice from The University of Maryland. He will receive his J.D. from Seton Hall University School of Law in 2015. Presently Daniel is serving as a legal intern in the Juvenile Justice Clinic. After graduation Daniel will clerk for a trial judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here

What Happens When the Smoking Gun is Thrown in the Recycling Bin?

In January 2014, the Hon. Lawrence E. Kahn in the U.S. District Court for the Northern District of New York granted plaintiff Dataflow, Inc.’s motion for sanctions in a case regarding deleted email correspondence.  Sanctions took the form of the often-case-ending adverse inference, with the judge reserving on the specific language of the adverse inference jury instruction until trial.  Defendant Peerless Insurance Co. might not wait that long, as even the neophyte lawyer can tell when blood is in the water. Dataflow’s claim arose out of a discovery request for production of documents that “targeted, inter alia internal communications and investigations regarding Plaintiffs’ claim.” Dataflow, Inc., v. Peerless Ins. Co., No. 3:11-cv-1127 (LEK/DEP), 2014 WL 148685, *2 (N.D.N.Y. Jan. 13, 2014).   When the defendant failed to produce any internal communications responsive to the document request, the plaintiffs tried again.  After the plaintiffs submitted an even narrower request for production, the defendants still didn’t produce anything responsive. Perhaps smelling something fishy, Dataflow started taking depositions and asking questions about the internal communications at Peerless.  The plaintiffs quickly learned that email was routinely used to communicate about claims.  The emails that Dataflow already asked for.  The emails that Dataflow was told didn’t exist.  The plot thickens. Hon. David E. Peebles, the Magistrate Judge handling discovery in this matter filed a Report and Recommendation urging sanctions be granted and fees shifted.  The District Court, reviewing Judge Peebles’s ruling de novo determined that the Magistrate got it right—and that sanctions are appropriate. The court analyzed the facts of the case under the spoliation framework set forth in Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002): On a motion for sanctions due to spoliation, the moving party must show that: (1) the party having control of the evidence had an obligation to preserve it at the time it was destroyed; (2) that party had a culpable state of mind; and (3) the destroyed evidence was of a nature that a reasonable trier of fact could find that it would support the moving party’s claim or defense. Dataflow, at *2 (citing Residential Funding Corp, at 107). Here, the duty to preserve for an insurance party was triggered when a claim was submitted.  As such, any internal communication regarding that claim is obviously supposed to be preserved.  The culpable state of mind can be inferred by the gross negligence displayed by email deletion resulting from a “system change.”  A “system change” that also conveniently “changed” the methods of preservation of documents related to paid and unpaid claims.  Finally, since the plaintiff was able to prove that the contents of the internal email conversations likely would have supported the plaintiffs’ theory of the case, sanctions in the form of an adverse inference just make sense. Perhaps it’s time for Peerless to have a “system change” with regards to their general counsel. Kevin received a B.S. in Political Science from the University of Scranton (2009), and will receive his J.D. from Seton Hall University School of Law in 2015.  Prior to joining the Seton Hall community, Kevin worked as an eDiscovery professional at two large “white-shoe” law firms in Manhattan. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Recycling—Helps the Earth, Saves Lives, and Destroys Electronic Evidence

“Recycle,” “conserve,” “waste,” and “pollution” are terms that were implanted into the minds of each of us at a young age and are now they are being instilled into companies worldwide as a measure to reduce operational costs. Companies such as JPC Equestrian, Inc. have begun recycling and reusing “cleaned” electronic devices from former employees, which would normally not be an issue if companies had a company-wide server or cloud-based software that held all of the information stored within the device. However, since JPC Equestrian, Inc. does not have a company-wide server, once an employee leaves, the company has a procedure in place to “scub” the computer and reassign it to another without care for the electronic information within the device. In Kearney v. JPC Equestrian, Inc., Mark Kearney, a former employee, sued JPC Equestrian, Inc. (“JPC”) for the failure to produce emails relevant to the claim he is asserting. Kearney commenced this lawsuit against JPC when they wrongfully terminated his employment, and breached his sales agreements by either failing to pay him sales commissions or by paying reduced commissions that did not satisfy contractual obligations. Kearney through the discovery process received email documentation from numerous employees and executives dating back to 2005. The discovery submission included JPS turning over 250 pages of documents relevant to the parties and situations involved. However, Kearney requested information for "all relevant emails," which in his original discovery requests, were defined as "[a]ll emails that mention, or refer to the Plaintiff, however, marginally, in any way shape or form from 2002 through 2010." Kearney v. JPC Equestrian, Inc., 2014 U.S. Dist. LEXIS 153975, *5 (M.D. Pa. Oct. 30, 2014). Kearney was missing three years of discovery. Kearney only received documentation dating back to 2005 because the information dating back to 2002 did not exist or does not exist anymore and cannot be recovered. JPS claims that the information cannot be recovered because the computers that would have held that data were wiped clean and erased before the device was transitioned to another employee. JPS has found loopholes around document retention and the court agreed. The court held that JPS’ procedure of document retention was acceptable and the court has, “no basis to conclude that the defendants have withheld responsive documents, or that there is any basis to compel a further response regarding potentially relevant email communication.” Id. at *7. Unfortunately, this holding allows companies an avenue to discard potential and relevant information pertaining to potential litigation that otherwise would have been saved if not for the guise of recycling and employee cost saving. This holding should be reversed and JPS should be penalized for its failure to maintain adequate records for an appropriate period of time. The court should not excuse a company, no matter the size or market capitalization, for not maintaining the electronic information of employees who work within the company. Not only is that bad preservation practice, its poor business practice. Recycling and the protection of our planet is important but those ideals should not give rise to loopholes of common electronic document preservation practices, which are becoming as worldwide and important as protecting the planet itself. Timothy received his B.A. from Rutgers University in 2011. He began his post-college life working in Trenton, New Jersey, at a lobbying and non-profit management organization before attending law school in the fall of 2012. He will receive his J.D. from Seton Hall University School of Law in 2015. Timothy has had a diverse set of experiences during his time in law school and has found his calling in Tax Law. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Will There Be a Presumption that ESI Is Inaccessible?

Parties requesting e-discovery speak up or forever be subject to possible cost-shifting.  Generally, the responding party bears its own costs of complying with discovery requests; however, the rules of discovery allow a trial judge to shift the cost to the requesting party in certain circumstances.  Cost-shifting does not even become a possibility unless there is first a showing that the electronically stored information (“ESI”) is inaccessible.  However, if neither party submits to the Court that the ESI is accessible, then courts can presume it to be inaccessible.  This should be especially concerning to the requesting party, who typically does not bear the burden to pay for such costs. In Zeller v. South Central Emergency Medical Services, Inc., Richard Zeller (“Employee”) filed an action against his former employer, South Central Emergency Medical Services (“Employer”) alleging an unlawful and retaliatory discharge under the Family Medical Leave Act (“FMLA”).  The Employee was out of work pursuant to the FMLA for approximately a month.  He alleged that, upon his return to work, the Employer did not restore him to his previous position and retaliated against him for using the FMLA.  The Employer claimed that the Employee was fired for excessive absenteeism. The e-discovery issue in this case involved the allocation of costs to recover e-mails between the Employee and his doctors.  In this matter, there was no formal motion for a cost-shifting protective order, rather the issue was raised by both parties in their submissions to the court on outstanding discovery issues.  Typically, the rule is for cost-shifting to be possible, there must first be a showing of inaccessibility.  Here, the court presumed that the parties agreed the information sought was inaccessible because neither party submitted that the ESI was accessible.  Once the court presumed that the ESI was inaccessible, the court then analyzed whether discovery costs should be shifted by applying the seven-factor test from the Zubulake Court.  In Zeller, the court held that some cost-shifting to the Employer, the requesting party, was appropriate. Although the ESI in Zeller was most likely inaccessible, parties requesting e-discovery can still learn a valuable lesson from this case.  The requesting party should submit to the court that the ESI sought is accessible to avoid both a presumption of inaccessibility and the possibility of cost-shifting.  Requesting parties should not leave it up to the producing party to bear the burden of showing that the ESI is inaccessible because the courts are now willing to presume this finding if neither party contends otherwise.         Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University.  He will receive his J.D. from Seton Hall University School of Law in 2015.  After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here.

How Generous Can a Court Be in Rewarding Legal Fees As a Result of Violation of Discovery Rules?

When a party’s violation of discovery rules causes added legal expenses to its adversarial, courts appear to be very generous in approving fee applications. An application only needs to provide itemized ledger entries of attorney/paralegal hours with simple explanation of the relation of the corresponding work to the discovery violation. Courts are going to exercise broad discretion and place the burden on the violating party to show with particularity why each logged hour is unreasonable. It appears that courts will only disprove hours that are obviously excessive or clearly redundant on the face of the ledger. In Tangible Value v. Town Sports International, Inc., Tangible Value (“TV”) sued the defendants for not paying for services provided according to an oral contract, which the defendants denied. The bulk of its claim was reflected in an invoice stating an unpaid balance of about $800,000. Upon discovery request by the defendant, TV, refused to produce metadata and other documents related to the invoice. The court then ordered such production. During the course of the discovery, TV repeatedly provided insufficient documentation as requested and the defendant had to examine the documents and determine their sufficiency, converse with counsels of TV, and initiate court conferences multiple times to compel additional documents. It was later discovered that the invoice was not real but was created by TV after the fact to justify a damage claim. At that point, the defendant filed a motion for contempt and sanction. The court granted the motion. The defendants then filed their fee application seeking to recoup legal expenses as a result of TV’s discovery violation, which  totaled 423.2 hours at rates varying between $180-$562 for attorneys (associates and partners) and $95-$153 for paralegals. The Magistrate Judge of the District Court for the District of New Jersey generously awarded the defendants 384 hours. Several observations can be made on how the court dealt with various legal charges. First, court deemed all charging rates reasonable by comparing the proposed rates to the rates approved previously by the court in other matters. Second, the court automatically approved any hours that were not objected to by TV. Third, once specific objections of hours were made, the court used a great deal of discretion and required particular showing why the hours objected were unreasonable. Fourth, the court approved internal attorney conferences without much hesitation. Fifth, hours logged for preparation for court conference were approved 100%. Sixth, the court was only willing to consider obviously excessive or unnecessarily redundant work as unreasonable. Seventh and most astonishingly, the court was extremely generous in allowing hours associated with legal research and drafting of Motion for Sanction and Fee application, approving a whopping 250 hours, or over 6 weeks’ worth of work for a single attorney! For my fellow law students, that is half of one entire law school semester. Thus, for executives and legal counsels in similar situations, make a good faith effort to obey the discovery request. Otherwise, the other side will surely take full advantage of the generosity of the court and obtain a humongous reimbursement in legal fees. For easy reference, the table below summarizes the court’s disposition of all hours included in defendants’ fee application in the Tangible Value case. Note: DP stands for Document Production. Fee Items Hours Applied Court Comments Reduction of Hours by Court Assessment of deficiencies in initial DP 8.3 none Communications with TV Re deficiencies in initial DP 9.8 2 Court conference/preparation Re deficiencies in initial DP 1.8 none Communications with TV Re deficiencies in its 2nd DP 5.8 none Court conference/preparation Re deficiencies in 2nd DP 3.1 none Investigation of the invoice and assessment of documents related to the derivation of the invoice 19.2 Multiple paralegals on same task. 4.9 Communications with TV Re deficiencies in its DP concerning the invoice 10.7 Two entries on similar work. 4.4 Court conference Re the deficiencies in DP concerning the invoice 0.8 none Assessment of deficiencies in the 3rd DP 2.2 none Communications with TV Re the deficiencies in 3rd DP 2.4 none Assessment of the 4th DP 1.5 none Assessment of the 5th DP 7 Ledger is unclear. 0.5 Communications with TV Re deficiencies in the 5th DP 1 none Assessment of 6th DP and accuracy of TV certifications 5.9 none Communications Re deficiencies in 6th DP and accuracy of certifications 7.7 none Communication with TV Re deficiencies in 7th DP 1.3 none Communication with TV Re deficiencies in 8th DP 0.5 none Letter to Court summarizing DP deficiencies and seeking permission to move to compel 3.9 none Motion to Compel, including drafting, legal research. 23.5 none Oral argument Re Motion to Compel and Status Conference with court. 4.4 none Revision of Scheduling Orders throughout litigation due to discovery delays 4.2 none Letter request for permission to move for sanction, including review and legal research 9.8 Two attorneys repeated same task. 2 Review of TV response to the letter above 8.2 none Motion for Sanction, including legal research and drafting 80.8 none Review of TV response for the Motion for Sanction, preparation of reply, and review of Magistrate Report and Recommendations. 28.1 The 4 hours for reviewing Court Report excessive. 1 Fee application including review of records and case law research 89.9 Excessive only by 12.2 hours 12.2 Review of TV’s opposition to the Fee Application and draft reply 77.7 Excessive  only  by 12.2 hours 12.2 Gang Chen is a Senior Segment Manager in the Intellectual Property Business Group of Alcatel-Lucent, and a4th year evening student at Seton Hall University School of Law focusing on patent law. 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eLessons Learned EXCLUSIVE: Laura Zubulake Interview & Book Signing During Seton Hall Law School eDiscovery Course Zubulake’s eDiscovery: The Untold Story of My Quest for Justice

Following the recent ten year anniversary of the verdict in the Zubulake case (and the series of published court opinions preceding the verdict) that laid the groundwork for future eDiscovery cases, Ms. Zubulake took time from her busy schedule to meet with Seton Hall Law students.  Ms. Zubulake discussed her book that presents a first-hand account of her harrowing experience that culminated in a historic outcome—and in the process forever changed the United States litigation landscape. Ms. Zubulake imparted her knowledge and experience from her three year lawsuit with a group of Seton Hall Law School students enrolled in Adjunct Law Professor Fernando M. Pinguelo’s eDiscovery: Where Technology Meets the Law course. Each student asked thoughtful and pointed questions concerning many of the experiences Ms. Zubulake revealed in her book. One of the central points Ms. Zubulake focused on was the importance of organization. She described the daunting task of reviewing, organizing, and searching through massive amounts of data, including emails and other evidence produced to her and her legal team as searching for the proverbial “needle in the haystack.”  This was during a time when technology assisted review and other advancements in data review platforms were virtually nonexistent. To overcome this challenge, Ms. Zubulake believed organizing the evidence, including paper and electronic documents, was critical to preparing for depositions, drafting motion papers, preparing for trial, and presenting a clear timeline and sequence of events to the jury. Ms. Zubulake shared both her experiences that led to her decision to file suit alleging gender discrimination and retaliation and the fallout of her litigation, which carried over to her personal life. Ms. Zubulake confessed that she had been aware of allegations of gender discrimination in the financial industry early on in her career and acknowledged that she often felt that she had to work twice as hard as her male counterparts.  However, that position never bothered Ms. Zubulake until the situation became uniquely personal, leading her to conclude that something needed to be done. Once she felt her personal career was being compromised, Ms. Zubulake admited that she “couldn’t in good faith walk away from it.” While her decision to act was not an easy one to make at the time, she thought it was the right one—particularly because she raised her concerns through internal corporate channels that she had been led to believe were designed to address delicate, intra-personnel matters discretely and effectively. Ms. Zubulake’s book is a personal account of a long, grueling litigation process that resulted in her finally getting vindication and justice. She speaks of the process and admits that it was not easy. Ms. Zubulake knew that she served as a good, strong candidate to not only take a stand against what had happened to her personally, but also to challenge what had been in many respects an institutional problem. Ms. Zubulake’s case did not serve merely to right a perceived wrong in the context of gender discrimination in the work place, but it also sparked the establishment of several groundbreaking precedents regarding electronic discovery. Her book is not only an account of her determination, but also her acknowledgement that she never imagined her case would have had such an impact on a legal process that was virtually nonexistent at the time. Ten years later, we continue to see the impact and the relevancy of the Zubulake decisions. To learn more about Laura Zubulake and Zubulake’s eDiscovery: The Untold Story of My Quest for Justice, visit: http://www.laurazubulake.com/. Fernando M. Pinguelo, Esq., is a U.S.-based trial lawyer and devotes his practice to complex lawsuits with an emphasis on business disputes, cyber security, media and employment matters. Kristen Tierney, a Chief Blog Correspondent for eLessons Learned, is a History and Political Science double-major at at Rutgers University in New Brunswick (Class of 2016). Do you have any feedback, thoughts, reactions or comments concerning this topic? Feel free to leave a comment below and follow the twitter accounts @ellblog_dot_com, @CyberPinguelo, and @eWHW_Blog. To learn more about electronic discovery and technology’s impact on lawsuits and corporate governance, visit eLessons Learned – Where Law, Technology, and Human Error Collide and register to receive timely updates.  If you’re also interested in data privacy and security, visit eLLblog’s companion blog – eWhiteHouse Watch – Where Technology, Politics, and Privacy Collide (http://ewhwblog.com).

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    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg


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