Does Allowing Opposing Counsel to Refine and Overwrite their Existing Notes Narrow the Scope of What Documents can be Attained?

Document Refinement and its Apparent Prejudices

On December 16, 2015, the Honorable Susan D. Wingenton granted GDC’s Motion to Quash Defendants William Baroni and Bridget Kelly’s subpoena duces tecum, which asked the GDC to produce “Any and all handwritten or typed notes, stenographic transcripts and audio and/or video recordings of witness interviews conducted by Gibson Dunn during its representation of the Office of the Governor of New Jersey from on or about January 16, 2014 to the present.”  Defendants also included a request to produce any and all metadata and document properties for all typed notes and interviews as well.  In her Opinion, Judge Wingeton took certain issue with the ethically questionable document preparation methods of the GDC, yet ultimately decided to grant the Motion to Quash. 

The GDC had a somewhat perplexing response to Defendant’s first requests as to notes, transcripts and recordings of witness interviews conducted by the GDC during its representation of the OGNJ.  They claimed that no such materials currently existed.  Here, the GDC deviated from normative interview information collecting techniques; here witness interviews were summarized electronically by one attorney while the interviews were being conducted and then edited electronically into a single, final version.  This differed greatly from their former methods of practice, where contemporaneous notes were taken by GDC interviewers and that those notes were preserved after the summaries were completed.  By contrast, the GDC clearly intended that contemporaneous notes of the witness interviews and draft summaries would not be preserved, as they were overwritten during revisions and in preparing the final summary.  The Court found this to be “unorthodox” at the least, and noted its disapproval of their actions, likening them to have the same effect as deleting or shredding documents.  Unfortunately, however, the Court had no reason to doubt the GDC’s honesty with respect to their methods or their responses to Defendant’s request for documents.  The Court did sympathize with the both Baroni and Kelly, but granted the motion anyway.

It is clear to see that the GDC’s actions, though ultimately condoned by the Court, were not done with the intent to deliver a full and honest discovery of the requested materials.  While the Court may have deemed such actions as legal, GDC’s document preparation methods raise many ethical implications, and could have clearly been used to destroy important information that Defendants here were entitled to.  Indeed, this method of refining interview summaries and information could have easily omitted details the defense may have found useful.  Doing so did not provide the defense with the transparent information they should have received by request; instead they had to make due with the GDC’s white-washing of the information.  In all, the GDC should have been more responsible and fair with the way it conducted and kept record of it’s interviews. This method of refining information can only seek to unfairly hurt their opposing counsel. 

Garrett Keating received his Bachelor’s degree from Trinity College (2011) and majored in both Political Science and Public Policy and Law; he will receive his J.D. from Seton Hall University School of Law in 2016.  He has worked primarily in the legal fields of Medical Malpractice, Personal Injury, and Class Action law

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