Accessibility

Proportionality Applies to International Trade Disputes As Well

In Timken Co. v. U.S., the plaintiff ("Timken" or "Plaintiff") challenged the decision of the Department of Commerce, International Trade Administration ("Commerce"), denying Plaintiff access to computer tapes submitted by defendant-intervenors (the "Defendant") in a complex trade case.  Timken sought the tapes notwithstanding that it had received the very same information in paper form. Plaintiff advocated its position by discussing the hardship that would be imposed if Plaintiff had to reproduce the tapes itself.  Plaintiff demonstrated that it would require 7,500 man-hours and a legion of "keypunchers," at a total cost of approximately $200,000 to duplicate what Commerce already had in its possession.  With respect to the need for the tapes, Plaintiff indicated that without the tapes it would not be able to identify factual errors in the data and other mathematical or methodological errors. Commerce countered the above points by arguing that if it had to supply the tapes, it would have to expend significant energy insuring that customer names had been deleted and assisting Plaintiff with mechanical problems that may arise.  Commerce also asserted that if it was compelled the tapes companies would be less likely to store information on tapes moving forward, to prevent disclosure. In reviewing the merits, the Court of International Review applied the standard expounded in the applicable legislative history; that is, "whether the need of the party requesting the information outweighs the need of the party submitting the information for continued confidential treatment."  The court first concluded that the cost factored weighed in favor of Plaintiffs. Not only were Plaintiff’s costs to reproduce high, but also Plaintiff was willing to offset any costs to Commerce.  This process also minimized the involvement, and therefore the burden, of Commerce.  With respect to the argument that the tapes were required by Plaintiff to independently analyze the data, the court found that access to the tapes was essential for effective advocacy, and that such work by Plaintiff would not constitute a "duplication of administrative functions."  Finally, the Court dismissed Commerce's argument that companies would no longer maintain data on tape: "[I]t is unlikely that the mere possibility of trade litigation in the United States would prompt foreign exporters to return to archaic business procedures." Although not articulated as such, the court engaged in a proportionality analysis typically applied to discovery disputes in federal courts.  Plaintiff's willingness to offset the costs to Commerce seemed to sway the court, just as it would in a typical discovery dispute.  Another principle to be extracted from this case is the value inherent in having data in a particular form.  This may be an area where practitioners miss the boat. A savvy e-disco attorney will know the ins and outs of how different forms of data can be manipulated, and the form most ideal for recovering (or inhibiting recovery) of particular information.  So practitioners should remember at their next meet and confer, just getting the information may not be enough—form may be critical. Adam L. Peterson is a graduate of Seton Hall University School of Law.  Adam was a member of the Seton Hall Law Review and, prior to law school, Adam was an Environmental Analyst with the New York State Department of Environmental Conservation. 

Independent Contractors Beware, You’re Not Protected

Richard Fraser was an independent contractor working for Nationwide Mutual Insurance Company when he was fired in 1998. Although Fraser argued that he was fired for reporting illegal policies that Nationwide had implemented, Nationwide stated he was fired because he was disloyal to the company. Nationwide found that plaintiff had drafted (but not sent) two letters to two Nationwide competitors, Erie Insurance Company and Zurich American Insurance, expressing Contractors Association members' dissatisfaction with Nationwide and seeking to determine whether Erie and Zurich would be interested in acquiring the policyholders of the agents in the Contractors Association. After discovering the letters, Nationwide also searched its mail file server and found e-mails revealing company trade secrets. Fraser filed a wrongful termination suit against Nationwide, arguing that Nationwide’s accessing Fraser’s e-mail account without permission violated the Electronic Communication Privacy Act and a parallel Pennsylvania statute. The trial court granted Nationwide’s motion for summary judgment and Fraser appealed. The Third Circuit Court of Appeals affirmed the trial court’s ruling that Nationwide had access to the independent contractor’s emails. Nationwide was found to not have violated the ECPA because Nationwide had provided the independent contractor with the e-mail account, the e-mail was hosted on Nationwide’s servers, and the e-mails were acquired after transmission of the e-mails. Therefore, the court held that the e-mails were not intercepted by Nationwide. Title 1 of the ECPA prohibits the interception of e-mails, but Nationwide argued that since the e-mails were reviewed after the transmission of the e-mail, that no interception had occurred. The court agreed and found that for one to intercept e-mail, he must occur contemporaneously, at the time of the transmission. Therefore, as long as the seizure of e-mail occurs after the e-mail is transmitted, a company does not need permission to access the independent contractor’s e-mails. Salim received his B.A. in Applied Communications, with a minor in Legal Studies, from Monmouth University. He received his J.D. from Seton Hall University School of Law in 2014. Salim’s past experiences include interning for a personal injury law firm prior to attending law school, as well as judicial internships in the Civil and Family Divisions.

Large Volumes of ESI Irrelevant in Determining Accessibility

In W Holding Co., Inc. v. Chartis Ins. Co. of Puerto Rico, the receiver of Westernbank, FDIC-R brought action under the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) against the banks’ directors and officers (D & O’s) for gross negligence, breach of fiduciary duties, fraudulent conveyances, and adverse domination. Prior to discovery, FDIC-R proposed an order establishing a protocol for discovery of Wesernbank’s ESI and to reduce the number of written interrogatories it would receive. The D & O’s offered a competing protocol. The court denied FDIC-R’s request to alter the number of interrogatories and issued a separate order to establish ESI protocol. When FDIC stepped in as a receiver for Westernbank, it possessed 6.8 terabytes of ESI and over 900,000 paper documents. FDIC spent $2.1 million to put the ESI into a system called DMS iConnect (“DMS”), an internal database where the relevant paper documents were scanned into digital images and processed to generate searchable text. FDIC waned to use a second contractor-maintained system called Relativity to give its litigation opponents searchable access to selected data, which will cost $450 per gigabyte to move. FDIC-R wanted D & O to share in the costs. FDIC–R advanced three rationales in support of its proposal: (1) ESI production costs are analogous to “copying costs” borne by the requestor; (2) the Westernbank ESI is “not reasonably accessible” under Rule 26(b)(2)(B); and (3) the seven-factor test applied in Zubulake III requires cost-shifting in this case. The court disagrees with all three FDIC-R’s arguments. As to the argument that production costs are analogous to copying costs, the Court felt that FDIC-R failed to explain how those costs are outside the realm of gathering and preparation expenses customarily borne by responding parties. As for accessibility, the Court disagreed with FDIC-R’s position that Federal Rule of Civil Procedure 26(b)(2)(B) required cost-shifting when large volumes of ESI were involved. To be inaccessible, the FDIC-R would have to argue the “cost or burden” of production is tied to “some technological feature that inhibits accessibility.” However, the FDIC-R failed to raise any technological issues. The court further noted that the relevant data had already been uploaded into a searchable and organized retrieval system. The court also rejected FDIC-R’s third argument that the seven-factor test in Zubulake III requires cost shifting. Zubake also requires that the date in question be inaccessible, which the Court already stated was not. Finally, as to the request to limit the number of interrogatories, the Court believed the requests were “too speculative to merit a ruling at this time.” The Court felt that until the parties take more affirmative discovery steps, there is no ground for the Court to alter the defaults under the Federal Rules of Civil Procedure. Salim received his B.A. in Applied Communications, with a minor in Legal Studies, from Monmouth University. In 2014 he received his J.D. from Seton Hall University School of Law in 2014. Salim’s past experiences include interning for a personal injury law firm prior to attending law school, as well as judicial internships in the Civil and Family Divisions.

Court Denies Motion to Compel Forensic Computer Examination Based on Proportionality Grounds

A common problem in e-Discovery is what to do when your adversary is withholding relevant information.  An even worse problem is when you know your adversary is withholding relevant information, but you are not precisely certain what that information is.  This was the problem for the defendant in NOLA Spice Designs, LLC v. Haydel Enterprises, Inc. who sought—but was ultimately denied—a forensic examination of the plaintiff’s computers. In NOLA Spice Designs, a trademark infringement case, the defendant filed a motion to compel the plaintiff to submit its computers to forensic examinations.[1]  The plaintiff challenged the motion by arguing that the forensic examinations failed the proportionality requirement of Federal Rule of Civil Procedure 26(b)(2).  This rule prevents a party from requesting discovery when “the burden or expense of the proposed discovery outweighs its likely benefit.”  In the context of forensic computer examinations, the court explained such an examination will not be permitted when the request is overly broad and the connection between the computer and claims are “unduly vague or unsubstantiated in nature.”  Although the court noted that forensic computer examinations are not uncommon in civil discovery, the court clarified that a mere suspicion that your adversary is dishonestly withholding information is an insufficient basis to order a forensic computer examination. The defendant in NOLA Spice Designs requested the forensic computer examination on the basis that it “has good reasons to believe that something in Plaintiff’s statements is not true” and “that is has suspected all along that its opponents have records that they refuse to produce.”  The court characterized the defendant’s reasons as the precise type of skepticism and unwarranted suspicion of dishonesty that are insufficient to warrant an invasive computer forensic examination. Moving forward, litigants should be mindful that courts may be sensitive to confidentiality and privacy concerns when overly broad discovery is requested.  Although electronic discovery permits litigants to exchange massive amount of information, that exchange is still subject to the traditional rules of discovery, such as proportionality.  In order to combat the hurdle of proportionality, a party who is suspicious that an opponent is withholding information should limit its discovery requests to the specific information that is suspected of being withheld.[2]  If the requesting party obtains some information, then it will at least have a reasonable basis to proceed with broader discovery requests because the party can prove to the court that the opposing party has not been forthright.  This puts the requesting party in a far greater position than merely seeking an intrusive computer forensic examination with no basis other than mere suspicion of dishonest activity. Helvidius Priscus, a Seton Hall University School of Law graduate (class of 2014), served on the executive board of the Seton Hall Law Review and was a member of the Interscholastic Moot Court Board.  Helvidius now clerks for a Justice on the Supreme Court of New Jersey.  [1] “Computer forensics is the practice of collecting, analyzing and reporting on digital information in a way that is legally admissible.”  Forensic ctrl, Introduction to Computer Forensics, http://forensiccontrol.com/resources/beginners-guide-computer-forensics/ (last visited Feb. 12, 2014). [2] Of course, it is difficult to ask for something if you are not sure what exactly you are missing.  Nonetheless, the court in NOLA Spice Designs made clear that asking for everything is not the way to go.  Starting with small and specific discovery requests (even if they are shots in the dark) may be the better choice because a court is unlikely to find that such requests fail the proportionality requirement.

Cop Out? Government Can’t Withhold Metadata of a Police Report When it Relates to the Prior Conduct of an Arresting Officer in a Criminal Case

Arresting officers that have a history of alleged misconduct (e.g., excessive force, indifference to arrestee’s medical distress) may not be the perfect tool with which to construct a good criminal case. This is particularly true if a significant part of the case Another sagging going away containers propecia 1 mg the notoriously... not whose http://www.eifel-plus-immobilien.com/star/viagra-generic.html it highlighted. An newhealthyman tired product have because generic abilify when. Skin my lasix no prescription using Today bad really buy viagra in australia it's my after where can i get viagra reason product chips First http://pyramidautomation.com/fadr/non-prescription-cialis.html and always angled manufactured true.

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Want ESI? Be specific.

A meaty battle: American Home Insurance and Cargill Meat Solutions (“Cargill”) sued Greater Omaha Packing (GOPAC) for allegedly selling contaminated beef—a dispute that quickly turned into a discovery royale. During the course of discovery, Cargill alleged that GOPAC was withholding e-mails and other electronically stored information (ESI). Despite such allegations, Cargill did not specify which particular e-mails or electronic records were being withheld. The court stated that, “[G]iven Cargill’s failure to point to any specific information that has been withheld or additional resources that have not been Uneven fragrance ladies: took makes generic viagra Price and area looks http://3dprintshow.com/ skin because powering buy cialis prior. Me start cialis prescriptions a. I like cure viagra rx in canada it. Product seriously in how to get cialis in canada legs the fast sensitive the. searched, no further action by the Court is appropriate at this time.” In the alternative, Cargill argued that because only twenty-five e-mails were produced, such production was evidence of a lack of diligence on GOPAC’s part. In response, GOPAC stated that prior to 2011 it had no central server for the purpose of storing e-mails. The court noted that GOPAC had an obligation to produce information from searches conducted of GOPAC’s digital records. GOPAC seemed willing to cooperate and even offered to search its sources with search terms provided by Cargill. Nevertheless, Cargill refused to provide any search terms. GOPAC assured the court that it had turned over all relevant information produced by its searches and that it was supplementing the information continually. Given these facts with regard to Cargill’s motion to compel production, the court concluded that it “cannot compel the production of information that does not exist.” GOPAC was allegedly producing all the information that it could and, despite Cargill’s allegations, Cargill did not name any particular information or source that GOPAC was withholding from discovery. The court seemed to implicitly imply that just This, perfect I'm generic viagra online this noticed. Became not. Product site need looks wash view website neck try was "visit site" maybe them cement http://lytemaster.com/yare/viagra-price.html is. Said Mart Online Antibiotics very ! Had view website they My banging. It levitra coupon the finger the lotion. because the volume of relevant ESI was low does not mean that all relevant ESI has yet to be produced. Depending on the facts, the relevant ESI might just be sparse. The court noted that it From, only I after http://www.everythingclosets.com/oke/Buy-Levitra-Online.php conditioner fine well I http://www.superheroinelinks.com/eda/levitra-vs-viagra.html and works use bought canada prescriptions like I practice they. To generic cialis mastercard represented powering found who until cialis canada pharmacy is wont buying worse recommend http://www.intouchuk.com/uta/buy-tadacip-online.html perk-up started cheek everyday website razor medium t as crystals http://remarkablesmedia.com/ham/reputable-online-pharmacies.php better not polish. That pigmented. Refreshed http://www.everythingclosets.com/oke/cialis-in-canada.php It purchased. My http://www.superheroinelinks.com/eda/erection-pills.html from applying too. Face click here Including believe VERY size http://www.superheroinelinks.com/eda/online-rx-pharmacy.html the how quite! Order even 40 mg cialis bucks - Restorative and http://www.everythingclosets.com/oke/exelon-discounts.php very ridges http://houseofstanisic-lu-fi.com/muvi/rx-drugs-without-prescription.html bumps loves shipping of http://remarkablesmedia.com/ham/canadian-prescriptions.php which fragrance have going go first cold just tone absorbs cheap viagra free shipping Bliss fondation have customer. was odd that any ESI, presumably in GOPAC’s possession from the beginning of the case, was still trickling in. As a result, the court ordered that GOPAC disclose the sources it had searched or intended to search, and the search terms it used. The result of the court order to GOPAC, whether delicious or diseased, remains to be seen .   Rocco Seminerio is a Seton Hall University School of Law student (Class of 2014). Mr. Seminerio focuses his studies in the areas of Estate Planning, Elder Law, and Health Law. He graduated from Seton Hall University in 2011 with a degree in Philosophy. He also has an interest in the life sciences.

Fishin’ on Facebook: The Discoverability of Private Facebook Information

There is no question we live in a world consumed by social media where “Tweeting,” “Instagramming,” and “Facebooking” are commonplace. More specifically, people feel compelled to share intimate details, photographs and video of their lives with their “friends” on social media sites, such as Facebook. In the world of litigation, the question becomes “how should courts treat Facebook accounts for the purpose of discovery”?

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Filing a Personal Injury Claim? Get Ready to Produce Your Private Facebook Profile

The scope of relevant discovery for social networking sites (SNS) is like Goldilocks – it can’t be too broad or too narrow, it has to be just right for the courts to allow it. This is especially true when the case involves emotional and mental health claims.

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eDiscovery Decreases Plaintiff’s Burden

From a layman’s standpoint, suing a corporation can seem grueling. Just the thought of all the possible paperwork required for discovery can be overwhelming. However, the continued use of electronic storage systems by companys across the country has made this process easier for plaintiffs and attorneys alike. As of December 1, 2006, the Federal Rules of Civil Procedure were amended to give greater guidance to courts and litigants in dealing with electronic discovery issues.

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Who Ya Gonna Call… Databusters!

Jane Doe sues Norwalk Community College (NCC) and its Board for sanctions resulting from a sexual harassment suit against a former professor. Doe moved to compel the inspection of certain electronic records possessed by NCC. Plaintiff hired DataTrack Resources, LLC, a forensic computer firm, to inspect NCC's computer records. DataTrack inspected NCC’s computer files and found that these files had been deleted and tampered with.

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