Welcome to the new eLessons Learned

eDiscovery Written by Law Students

eDiscovery Written by Law Students

eLessons Learned features insightful content authored primarily by law students from throughout the country. The posts are written to appeal to a broad spectrum of readers, including those with little eDiscovery knowledge.

Law + Technology + Human Error

Law + Technology + Human Error

Each blog post: (a) identifies cases that address technology mishaps; (b) exposes the specific conduct that caused a problem; (c) explains how and why the conduct was improper; and (d) offers suggestions on how to learn from these mistakes and prevent similar ones from reoccurring.

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New to the eDiscovery world?

Visit our signature feature, e-Discovery Origins: Zubulake, designed to give readers a primer on the e-discovery movement through blog posts about the Zubulake series of court opinions which helped form the foundation for e-discovery. Go There

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Contribute to eLessons Learned

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Does Inadvertent Disclosure Destroy the Safe-Haven Afforded by Attorney-Client Privilege?

Last spring the District Court for the District of Colorado heard argument on Galena St. Fund, LP v. Wells Fargo Bank, N.A. Plaintiff Galena specifically appealed to the court to compel discovery with respect to 8,327 documents that defendant Wells Fargo claimed were privileged. Magistrate Judge Boyd N. Boland was asked to consider whether Wells Fargo was allowed to claim privilege from trust beneficiaries, or in the alternative, if Wells Fargo waived the attorney-client privilege in its entirety. Plaintiff’s motion consisted of the kitchen-sink brief: first, Wells Fargo could claim no privilege exists to prevent disclosure of records to a beneficiary of a trust; second, when Wells Fargo named a non-party at fault, they effectively waived privilege by making the documents at-issue in the case; third, Wells Fargo waived privilege by having an overbroad privilege log; and fourth, Wells Fargo waived simply by inadvertently disclosing during the course of discovery. In short, Judge Boland was not convinced. Only one exhibit in the universe of disclosure was deemed to be a waiver of privilege, based on the at-issue waiver rule. That document was an email chain discussing defendant’s non-party claim and deciding how to remit proceeds from federally insured RMBS loans.   The court recognized that Wells Fargo “cannot use the attorney-client privilege as a shield to hide communications that indicate that Wells Fargo directed [the non-party] on how to remit those proceeds.” Galena, 2014 WL 943115 at *12-13. Unfortunately for Galena, that was the only point for plaintiffs on the scoreboard. The court went on to explain that Wells Fargo’s contact with outside counsel did not waive privilege for Galena as a beneficiary of the trust, essentially because Wells Fargo’s reaching out to outside counsel was inspired by Galena’s threat of litigation. Furthermore, Judge Boland did not find defendants assertion of privilege to be overbroad, and recognized that inadvertent disclosure does not waive privilege in any meaningful sense. Rule 26 of the Federal Rules of Civil Procedure works in conjunction with Rule 502 of the Federal Rules of Evidence to provide a solution to this very situation. So long as the disclosure was truly inadvertent and the holder of the privilege took reasonable steps to remedy the problem, privilege is still maintained. In this situation, the “burden of showing that the privilege has not been waived remains with the party claiming the privilege.” Silverstein v. Federal Bureau of Prisons, 2009 WL 4949959 *10 (D. Colo. Dec. 14, 2009). In the other situations in which the court analyzed potential waiver here, the burden of establishing a waiver of the attorney-client privilege “rests with the party seeking to overcome the privilege.” People v. Madera, 112 P.3d 688, 690 (Colo. 2005). Galena couldn’t possibly meet that burden, for all 8,327 documents. Hopefully, Galena’s counsel can make some hay with the one record in which privilege was waived. 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.

Sorry, I Forgot I Was Supposed To Do YOUR Job For YOU

In this technological age, people have gotten very lazy. Jobs once done by hand evolved to being done with tools. Jobs once done with tools evolved to being done by machines. Jobs once done by machines evolved to being automatically done by machine. The same is true with electronic discovery. It is no longer sufficient for me to present you with the files you requested and the entire database from which they are derived. Now, I must present them to you in a manner in which you deem acceptable or I must present them to you again. Sorry, I forgot I was supposed to do your job for you too. In FDIC v. Appleton, defendants moved to compel the FDIC to respond to their requests for production of documents claiming that the FDIC did not produce documents in conformity with Federal Rule of Civil Procedure 34, stating that FDIC failed to produce documents organized and labeled to conform with defendants' discovery requests or as they are kept in the ordinary course of business. The FDIC, in response to this motion, claims that it gathered the documents in Relativity from a larger database of ESI based upon search terms mutually agreed to by the defendants and also made the larger database available to search. Here, the defendants have all of the information they requested, both the specific files and the database from which the files were pulled. However, the court held that this was not sufficient. The FDIC believed that it produced the necessary documentation as required by the discovery requests and is not required to organize them according to the defenses specific wishes due to the Relativity software and how it sorts documents. Ultimately, the court granted defendants' Motion to Compel as to the ESI in Relativity requiring the FDIC to search for all documents in its possession responsive to defendants requests, to create a file in Relativity for each of defendants' discovery requests and then to put each document of each request in the corresponding file. This California case creates horrible precedent and should be overruled. The ruling itself creates latent and infinite costs that shift upon the person receiving the discovery request. This ruling also forces any plaintiff, here the FDIC, to neatly wrap the defendant’s requests into a box with Christmas wrapping paper and present the information to the defense with a little bow on top. Long gone are the days and legal strategy of “burying someone in documents” (a strategy used to often pursue a settlement instead of a costly and lengthy trial). Now, a quick search of a hard drive through a folders search bar specified to the defendants’ requests instead of the software’s default settings can determine exactly where the leverage to be used against you in litigation can be found, if there is any at all. Furthermore, the FDIC did completely comply with the discovery requests but not sufficiently enough for the defendants. The defendants filed a motion to compel because they were not happy in which the documentation that they requested was presented by Relativity so they went to a court of law to force the FDIC to present the information in another form. The cost associated with having to comply with a discovery request can be massive but the cost associated with having to do a discovery request over because the first discovery request was unorganized is absurd. Sorry, I forgot I am supposed to do your job for you as well as comply with the discovery request. FDIC gave you the information and it gave you the database upon which the data was derived, FDIC fulfilled its duty per discovery request. 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.

Why Did the United States District Court Find Apple’s Proposed Protective Order Unduly Restrictive, Unreasonable, and Arbitrary?

Even Apple’s extremely valuable source code is not entitled to an arbitrary, unreasonable, and unduly restrictive protective order. Instead of adopting Apple’s proposed protective order, the United States District Court approved Farstone’s provision in its entirety. Farstone’s “reasonably necessary” standard was determined to be sufficient enough to protect Apple’s source code. In Farstone Tech., Inc. v. Apple, Inc., despite agreeing to a majority of the proposed protective order’s terms, Farstone and Apple disagreed on the terms relating to the production of Apple’s source code. Specifically, Apple and Farstone could not agree on the limitations that should apply to Farstone’s ability to print Apple’s source code. Apple proposed that the printing must be “necessary” to prepare court filings and pleadings, while Farstone proposed that it should be allowed to print source code that is “reasonably necessary” for those purposes. Additionally, Apple wanted to establish two other limitations in the protective order, including a thirty page threshold and a two hundred and fifty page total cap. The thirty page threshold limitation would presume any printing of thirty sequential pages of source code to be excessive. The court found that Apple’s proposed “necessary” term was unduly restrictive because Farstone will not likely be able to know what specific source code is necessary to prepare its case. Furthermore, the court found that Farstone’s “reasonably necessary” standard has a solid foundation in the Northern District of California’s Model Protective Order. Additionally, the court found Apple’s numerical limitations unreasonable because they appeared to be arbitrary. Apple failed to indicate how the thirty page threshold and the two hundred and fifty page cap “bear any actual relationship to the total source code available.” The court held that the “reasonably necessary” standard provided some guide and limit on the printing of source code and thus, approved Farstone’s source code printing provision. It is imperative that Apple protects its trade secrets, such as its extremely valuable source coding. However, Apple must avoid proposing arbitrary, unreasonable, and unduly restrictive provisions in its protective orders to avoid courts from adopting its adversaries’ proposed terms. If Apple wishes to include numerical limitations in the future, it should justify why the numerical limits are necessary for the protective order to be sufficient.            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.

What Responsibility Does An ESI Producing Party Have in Reviewing the Documents for Responsiveness?

ESI is usually massive and its discovery burdensome. The proportionality consideration is thus often a deciding factor for courts to impose a particular document production protocol. The rules of ESI request and production do not offer a clear line as to the form of production and the obligation of a producing party in further culling for responsiveness by reviewing search hits produced by computers. That allows courts to order production procedures with considerable flexibility. ESI production is governed by Rule 34 of FRCP, which states that a request of ESI production “may specify the form or forms in which electronically stored information is to be produced” (emphasis added). However, rule 34(b)(2)(E) specifies that: (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. As to the responsiveness review, nowhere in Rule 34 is it expressly stipulated how the review should be carried out and how the electronic search should be conducted, particularly in the context of ESI. The court in FDIC v. Bowden, by referencing other cases, developed some practical guide in applying the ESI production rules as to production forms and responsiveness review responsibility. In FDIC v. Bowden, the court, in the spirit of balancing discovery burdens and applying proportionality restriction, provided a reasonable ESI production procedure to follow in the particular context of the case. That context, involving a suit by FDIC who took over a failed bank for mismanagement against some prior executives of the bank, may not be as uncommon as it appears, particularly in the aftermath of the 2008 financial crisis resulting from broad adoption of ruthless practices by the financial industry. The position of the court is thus illuminating and offers much guidance to parties facing similar situations. Specifically in FDIC v. Bowden, a bank insured by the FDIC failed and the FDIC formed a separate legal entity, the FDIC-R, to act as a receiver and took over the bank. The FDIC-R then brought a bank mismanagement case against sixteen former directors and officers. The parties disputed as to the ESI document production protocol. Like many other mismanagement cases, the defendant had been running the bank and thus had some reasonable understanding of majority the bank’s (or the plaintiff’s) ESI and knew reasonably well what needed to be searched. This point seems to have carried much weight for the court to determine a suitable document production protocol. First, it is interesting to note that the court treated acceptable ESI production protocol by FDIC for defendants’ request for documents related to FDIC’s claims separately from defendants’ request for documents responsive to defendant’s defenses. As to the production of ESI related to the claims, the court first noted that since this type of case generally involves the bank’s takeover by the FDIC and thus the ESI has usually been modified in the course of FDIC’s running of the bank. Thus, irrespective of whether the defendants specified any document production form, FDIC cannot really satisfy the “course of business” option of Rule 34(b)(2)(E)(i) by simply providing ESI as kept by FDIC because the “course of business” was held by the court to mean the business of the bank, not of the FDIC. Under Rule 34, the FDIC thus needed to produce categorized documents according to defendant’s request. But there is no obligation for the responding party to examine every scrap of paper in its potentially voluminous files in order to comply with its discovery obligations. Rather, the court approved a two-stage scheme. In the first stage, FDIC only needs to conduct a diligent search, which involves developing a reasonably comprehensive electronic search strategy, categorize the resulting files according to the request, and produce the documents. However, the obligation (if there is one) for FDIC to review the responsiveness of the documents resulting from these initial searches may be obviated through a cooperative search query formulation on an equal access document database in a second stage document production. Specifically for the second stage, parties would agree to a set of search terms to apply to the Bank’s database maintained by FDIC-R. FDIC-R would then export the results into some review tool, called “Relativity” in this case. FDIC-R would provide full accessibility of “Relativity” to defendants. That way, the defendants can be afforded the opportunity to review the documents identified through the second round searches and select for production only the documents that the defendants desire. As for the defendant’s interest in corralling documents in support of their defense, the court held that FDIC-R must confer with defendants and run whatever reasonable searches they wish to run on the electronic records and make those hits available for review and refinement. This seems to be a natural way of dealing with request for document helping with defense since the defensive strategy is mostly with the defendants themselves. From this case, it appears that as long as a responding party conducts a reasonable and diligent electronic search according to the document request and produces hits, it does not immediately have the obligation to further review these hits for responsiveness. However, the court may ask the responding party to make their ESI database available for a collaborative search between the parties. The responding party can always produce these hits in a format kept in ordinary course of business irrespective of whether the requesting party has specified any form of production. Of course, the responding party can also produce the document by categorizing the document according to the request if it chooses to do so or if the ESI has been altered and becomes too burdensome to reverse to the form kept in ordinary course of business. Gang Chen is a Senior Segment Manager in the Intellectual Property Business Group of Alcatel-Lucent, and a fourth-year evening student at Seton Hall University School of Law focusing on Patent Law. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Clawing Back Digital Data is Risky Business

Why is clawing back digital data any more dangerous than clawing back physical documents?  Imagine making physical copies of one thousand documents.  That would take a long time, right?  Now, imagine making digital copies of the same one thousand documents. This takes a fraction of the time.  Giving up too much information in a digital form is incredibly dangerous because duplicating the data is as simple as “copy” and “paste.” In the case of Crissen v. Gupta, the party producing documents gave the receiving party a CD with all the documents requested; however, they mistakenly included over 600 pages of documents that were not supposed to be produced.  Thankfully, for the producing party, a protective order was in place which mandated that documents could be “clawed back” if they had been mistakenly produced. A claw back provision essentially will undo a document production.  In theory, this is a great way to increase the flow of information between opposing parties, decrease discovery costs, and limit the amount of time spent combing through documents before they are produced. See 2006 Advisory Committee Note to Fed.R.Civ.P. 26(f).  However, this only works if opposing counsel plays by the rules of the “claw back” game. Here, instead of just returning the CD as requested by the producing party, the receiving party copied and pasted all the documents from the CD onto the law firm’s server.  The CD was eventually returned to the producing party, but the damage had already been done.  The receiving party had an unblemished, unrestricted view of all the documents saved right on their servers. The producing party promptly asked the court to interject and enforce the claw back protection order; however, the receiving party had already reviewed the recalled documents via the copies on their servers.  The court ordered that the recalled documents be deleted, forbade the use of the documents unless they were properly produced, and required the receiving party to submit confirmation of the same.  However, as the saying goes, the cat was already out of the bag. Judge Magnus-Stinson admitted in his opinion that he could not bar the receiving party from using the recalled documents because the documents still may be properly requested and produced.  In other words, the receiving party now had the upper hand because they knew what documents to specifically request based upon their review of the recalled documents. The moral of the story in this case is do not rely solely upon claw back protective orders when going through the discovery process, especially when producing digital information.  Even if the protective order is enforced and a party is able to claw back specific data, there is some damage that just cannot be undone.  Victoria O’Connor Blazeski (formerly Victoria L. O’Connor) received her B.S. form Stevens Institute of Technology, and she will receive her J.D. from Seton Hall University School of Law in 2015.  Prior to law school, she worked as an account manager in the Corporate Tax Provision department of Thomson Reuters, Tax & Accounting.  Victoria is a former D3 college basketball player, and she has an interest in tax law and civil litigation.  After graduating, she will clerk for the Hon. Joseph M. Andresini, J.T.C. in the Tax Courts of New Jersey.   Want to read more articles like this?  Sign up for our post notification newsletter, here.

Spoliation By Plaintiff? Deleting Text Messages Can Result In Court Sanctions

This case provides an important lesson for any person involved in a lawsuit involving text messages as evidence. Here, a group of employees was suing their employer for discrimination under Title VII. When the discovery process began, the defendants requested a number of text messages relating to the conduct of the employees during the relevant time period of the discrimination. These text messages were permitted to be discoverable by the defendant and the plaintiff was ordered to turn over the relevant text messages. The plaintiffs’ lawyer then gave the plaintiffs instructions to preserve all data relevant to the case; otherwise they could face sanctions by the court, which could negatively impact their suit. Spoliation is the legal term for deleting or destroying information sought by the opposing party. This is precisely what occurred here. Apparently the plaintiffs felt that if they simply deleted a portion of the requested text messages that the defendant would have no way to access that information and thus the problem would be solved; if there even was a problem to begin with. When the defendant discovered that these texts had not been turned over with the rest of the discovery they inquired about their whereabouts. The plaintiffs responded that the texts had been deleted. Obviously perturbed, the defendant then subpoenaed the mobile carrier, T-Mobile, and recovered the deleted texts. However, now the plaintiffs had a problem; they had deliberately attempted to conceal and destroy relevant information. The defendant then filed a motion to dismiss based on the actions of the plaintiff. The court granted the motion in part but denied the dismissal of all charges.  Though, the court did impose sanctions upon the plaintiff, which carried the potential to seriously harm their case even if everything else went well. The simple lesson here is that you should never conceal, delete, or destroy any relevant information sought by the opposing party. Ultimately the content of the text messages remains unimportant in light of the plaintiffs’ spoliation. The plaintiffs should have followed their lawyer’s instruction to preserve the information. Had they turned over the information, their lawyer would have been able to combat the text messages in court in front of the jury. However, due to their actions, they were sanctioned and essentially handcuffed their counselor from undercutting any information contained within the text messages. Spoliation is never the answer even if you are required to turn over information that does not weigh in your favor. These plaintiffs learned the hard way; do not make the same mistake and follow your lawyer’s instructions.  A.S. Mitchell received his B.A. in Political Science from the University of Central Florida (2008). He will receive his J.D. from Seton Hall University School of Law in 2015. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Changing Horses Midstream? Court Says “Yes” to plaintiff Switching From Manual Document Review to Predictive Coding

The court entered its usual case management order setting forth a timeline of how this case was going to proceed. One of the first phases of litigation is the discovery phase. This means that both sides get to ask each other for documents and information regarding the issue in the case. The rules are fairly straightforward in this phase and each side will likely be obligated to provide much of what the opposing side asks for. In the instant case, after doing some manual searching, the plaintiff, Bridgestone, requested to use predictive coding to help sort through over two million documents. Predictive coding, to put it simply, is akin to a smarter keyword search. Keywords are put in and the program searches for those words as well as for other relevant words that it has “learned” to associate with the keywords in order to determine if a document is relevant or not. The defendant, International Business Machines Corporation, objected to Bridgestone’s use of predictive coding. The objection being that it would be an unwarranted change in the case management order. However, the court ruled that predictive coding could be used because under the rules discovery should be efficient and as cost-effective as possible. Thus, predictive coding, which is a smart search, was allowed in this case in order to expedite the discovery phase and save money on manual or other document review techniques. Moral of the story: Predictive coding may be implemented as an efficient discovery technique even if a case management order is already in place. Jessie is a third year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick, in 2012 with a B.A. in Philosophy and Political Science.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Should A Company Take What Is Offered At the Meet and Confer and Not Take Any Risks?

A party demands the sun, moon and stars in a document request or interrogatory, refusing to give even a little bit. The meet and confer required by a court in advance of a motion is perfunctory at best, with no compromise whatsoever. But when the parties appear before the court, the recalcitrant party possesses newfound flexibility and a willingness to compromise. - Hon. Paul S. Grewal This case is a demonstration of when a company should be flexible during the meet and confer because a good offer does not make its way back around and it is risky to not accept it. The plaintiff, in this case, issues a subpoena on a third party, seeking the production of a complete forensic image of two laptops utilized by the defendant. The defendant, a former employee of the plaintiff, has since been working with a third party company, a competitor and nonparty to this action. During the meet and confer, the third party company offered “to have an independent vendor review a full forensic image of the first laptop to search for pertinent information, including a review of any deleted files.”  The plaintiff refused. The third party company issued two laptops to the defendant. The first was segregated upon hearing about this case. At which point the third party produced to the plaintiff “forensic information about the contents of the first laptop in the form of file listing reports, which disclose extensive metadata of the files contained on the laptop, USB reports, and web browsing history reports” and a second laptop was issued. Both laptops were utilized by the defendant in the course of his work and contained privileged communications. The third party company argued that the demanded forensic images of the two laptops was unwarranted and risked disclosure of protected information that was not the subject of discovery in this case. The law states that a court may quash a subpoena “in the event the subpoena requires disclosure of a trade secret or other confidential research, development, or commercial information.” Thus, the judge in this case ruled to quash the subpoena. The court reasoned that the second laptop, which was issued after suit was filed, was “not discoverable.” Additionally, as to the first laptop, the court determined that while there was “no doubt” that discoverable information existed on the two laptops, “by demanding nothing less than a complete forensic image of not just one but two laptops belonging to a direct competitor, the plaintiff demands too much.” The court explained that the requested production would “disclose privileged communications . . . as well as irrelevant trade secrets from a nonparty-competitor” and that the subpoena thus sought “discovery of protected matter, something plainly not permitted under Rule 45, rendering the subpoena overbroad and imposing an undue burden.” It is important to note that because this was competitor-competitor ligation, there was a lot more on the line as to confidential information. The judge also declined to allow the plaintiff to accept the non-party’s prior offer from the meet and confer to allow an independent vendor to review the first laptop for pertinent information. The court stated “But to allow Boston Scientific now to seek shelter from a fallback position that Nevro previously tendered in good faith would make a mockery of both parties’ obligation to meet and confer in good faith from the start. The time to tap flexibility and creativity is during meet and confer, not after.” Amanda is a third-year student at Seton Hall University School of Law, where she is pursuing a J.D. with a certificate in Health Law. Prior to law school, she was a 2011 magna cum laude graduate of Seton Hall University, where she earned Bachelor of Arts in Political Science and a minor in Philosophy. Presently, she is a law clerk at a small firm handling real estate and bankruptcy matters. After graduation this native New Yorker hopes to work at a mid-sized firm in the Big Apple.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

Prophylactics Do Not Protect Pharmaceutical Companies From Data and Document Discovery Laws!

In this case, the Plaintiff Nicole Baker sues Bayer Healthcare Pharmaceutical Inc., complaining that the Bayer product Mirena was not adequately accompanied by warnings of its side effects. She asks Bayer to produce databases that contains sales calls made by the marketing and sales department to physician’s offices. The sales calls notes also contain conversations between sales representatives and healthcare providers. Bayer argues that only the sales calls notes concerning Baker’s treating physician are relevant. Bayer also argues that producing all the sales calls notes are unduly burdensome and excessive in light of the needs of the case. Ultimately, the court finds in favor of the Plaintiff, and finds that the databases containing all sales calls must be produced due to their relevance to the current case. Federal Rule of Civil Procedure 26(b)(1) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” The information sought “need not be admissible at the trial” so long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” The crux of the Plaintiff’s argument is that all the sales call notes, not just limited to those related to her physician, are relevant to her case because they would ascertain whether the pharmaceutical company is overpromoting the product Mirena. Overproduction would mean that there could be dilution or nullification of any warnings, thereby rendering the warnings inadequate. The Plaintiff argues that the volume and substance of the sales calls notes can establish whether there was a vigorous, aggressive sales campaign to the medical profession, leading to failure to heed written warnings. While this argument appears to be attenuated, it does fall under the standard of being reasonably calculated to lead to the discovery of admissible evidence. The takeaway message is that the court thought although it was a burden to the Defendant, all of the sales calls notes are relevant to establishing if Bayer’s Mirena campaign was so pervasive that any doctor, including the Plaintiff’s, would fail to pay attention to warnings about the product’s side effects. Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of Patent Law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc.  Prior to law school, she graduated cum laude from UCLA and completed graduate work in biomedical science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this?  Sign up for our post notification newsletter, here

Adding Insult to Injury: Court Criticizes Plaintiff’s Improper Pleading in Process of Largely Denying Motion to Compel

The court began its opinion by reciting the quote that “[d]iscovery relevance is minimal relevance,” leading most readers to presume the court was going to rule in favor of Plaintiff’s motion to compel.  However, after learning that Plaintiff sought “the entire claims file” of Defendant, that presumption slowly dissipates. The motion before the court involved Plaintiff’s request for an order compelling Defendant to produce documents that are responsive to certain of Plaintiff’s second, third and fourth sets of Requests for Production of Documents.  The Plaintiff alleged that Defendant’s objections are premised on unsupported claims of privilege and that the documents Defendant did turn over were excessively redacted.  After a back and forth regarding the concept of “privileged” the court rules that the real crux of the issue is the “point at which Defendant was reasonably anticipating litigation.” It is at this point that a privilege is created for the documents at issue based on the work product doctrine as outlined in Fed. R. Civ. P. 26(b)(3)(A) at which point a privilege for the documents at issue based on the work product doctrine. Because insurance claims are of such sensitive and proprietary nature, the court holds that the question of whether insurer documents were created in anticipation of litigation “depends on whether the party seeking protection can point to a definite shift made by the insurer from acting in its ordinary course of business to acting in anticipating of litigation.”  Colloquially known as a “trigger” for document preservation, the burden is on the Defendant to establish the existence of such privilege in the face of litigation.  The court ultimately held that the relevant date was December 28, 2012, when Defendant sent a letter regarding a settlement check.  Thus, the court ordered that any information withheld on the basis of work product doctrine after that time must be produced. After serving its second set of discovery requests, the Plaintiff subsequently asked for the documents to be produced in native electronic format.  However, the Defendant had already produced documents in paper and PDF form, which Plaintiff alleged was not the form maintained by the Defendant “or in any reasonably usable form.”  Citing Fed. R. Civ. P. 34(b)(2)(D) and (E), the court noted that the rule allows, but does not require, the requesting party to specify the form in which it is requesting electronic data.  The court also noted there is nothing in the rule that prohibits a party from requesting different formats from one set of discovery requests to the next. Ruling in favor of the objecting Defendant, however, the court considered the “proprietary nature of certain software used by Defendant” and “Defendant’s right to withhold privileged information” as well as the “added costs of re-producing information already submitted to Plaintiff.”  Because the Defendant endured the time, effort, and expense of producing documents in PDF form as initially requested by Plaintiff, the court denied Plaintiff’s request to compel the native electronic forms of such documents. The Plaintiff’s motion to compel also sought all files containing “similar” claims.  While disregarding the Plaintiff’s motivations for requesting such documents, the court opined that the effect of requiring this production would be to “subject [Defendant] to undue burden in light of topics which, at best, have limited evidentiary value in this case given the broadly worded nature of the information requested.” Adding insult to injury, the court makes it a point to criticize Plaintiff’s complaint.  The cause of action was premised on a breach of the covenant of good faith and fair dealing yet Plaintiff’s motion “continually” refers to this as a claim for “bad faith.”  Succinctly and sharply, the court imparts some legal education by bluntly stating that the two are not interchangeable.  After making its criticism of Plaintiff’s mischaracterization, the court writes that “even if such information were to be considered relevant, the requests, as written, are facially over broad.” The court broadly cites a “lack of specificity” before denying more than 25 of Plaintiff’s discovery requests.  Because Plaintiff “failed to provide a sufficient, substantive limitation,” the court ruled that these “generalized discovery requests” were “facially over broad as well as irrelevant.” Lastly, seemingly as a concession to the largely defeated Plaintiff, the court partially grants Plaintiff’s final discovery request.  Plaintiff sought the “complete personnel files” for certain claims handling supervising personnel involved in the claim.  As with the other requests, Defendant objected citing the “personal, confidential, private information” that these files held.  Significantly, the court recited that “‘confidential’ does not equate to ‘nondiscoverable’ or privileged.”  Thus, the court granted Plaintiff’s motion to compel such personnel files, although it concluded this grant by limiting it to information from the files that specifically pertains to the employees’ “background, qualifications, training and job performance” and explicitly excluded any “sensitive personal or medical information” regarding these individuals. By the end of its succinct seven-page opinion, the District Court for the District of Kansas handed down many valuable lessons for future parties engaged in discovery-based litigation.  Among them:  (1) The work product doctrine will not prevent production if litigation is reasonably anticipated; (2) Request documents in the form desired or risk a landslide of “unusable” documents; (3) Be careful, diligent, and precise in your word choice – both in your pleadings and your document requests; (4) Private/Confidential does not mean Privileged/Nondiscoverable. 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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