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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
The attorney-client privilege is not as inclusive as some may think. The privilege protects confidential communications between attorney and client in order to “encourage full and frank communication between attorneys and their clients.” The attorney-client privilege only applies if the following conditions are met. The asserted holder of the privilege is or sought to become a client; The person to whom the communication was made is an attorney; The communication relates to a fact of which the attorney was informed; (a) By the client, (b) Without the presence of strangers, (c) For the purpose of securing an opinion of law or legal services; and The privilege has been claimed and not subsequently waived. Commonly, disclosure of confidential information functions as an abdication of attorney-client privilege. Unintentional disclosure, however, does not constitute a waiver of the attorney-client privilege if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error. Courts also look to factors such as the quantity of the disclosure and the overriding interests of justice when determining whether the attorney-client privilege was inadvertently waived. In this case, a discovery dispute arose because the defendant unintentionally disclosed two privileged documents to the plaintiff. The first document was a letter from the defendant to an attorney for the purpose of soliciting legal advice. The second document was a response letter from the attorney providing counsel to the defendant. The court here found that these two documents are clearly covered by attorney-client privilege. So, the issue then became whether or not the defense waived attorney-client privilege when the party unintentionally disclosed the privileged documents. The court first considered the precautions taken by the defense to prevent accidental disclosures and discovered that there were none. For one, the defendant did not maintain a privilege log. Additionally, the defense did not even mark or designate the letters as confidential. For purposes of maintaining privilege, this factor weighed heavily against the defendant. The next factor the court looked to was the number of inadvertently disclosed documents. These documents were a mere three pages among a total of 3,500 pages of discovery documents. This factor weighed in favor of maintaining privilege. The third factor considered was the extent of privileged information disclosed. This factor weighed in favor of waiver because the information contained on the letters was clearly privileged. The court reasoned that the extent of the defendant’s carelessness weighed against maintenance of attorney-client privilege. The fourth factor considered was the extent of any delay in correcting the inadvertent disclosure. Since the defense took more than three months to attempt to rectify their mistake, this factor was found to be in favor of waiver. As to the last factor, the court stated that the defense did not offer any explanation as to why, in the overriding interest of justice, the letters should still be privileged. Since the majority of factors were found to be in favor of the waiver of attorney-client privilege, the court held that the defense has waived attorney-client privilege with respect to the letters. It is imperative to keep in mind that the attorney-client privilege can be waived unintentionally. One of the most effective ways to prevent an inadvertent disclosure is to maintain a preventative mechanism. Mark all privileged documents as privileged, keep a detailed privilege log, and constantly double check all disclosed documents so any mistake can be corrected quickly. If these steps are followed, a party will likely be able to maintain privilege even if the party inadvertently discloses privileged documents. 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
Everyone has some sort of social media account in this day and age. Even my mom has a Facebook and Instagram account. Therefore, an important question exists: How private is this information and could it ever be used against me in a court of law? The short answer is yes, if a court determines that the information’s probative value outweighs its prejudicial effect. In such an instance, private content stored on your password protected social media account must be turned over to the opposing party as discovery. Therefore, you must be wary of the content contained on your social media account; you never know when it could be used to your detriment. When Christopher Ogden sued his employer under Title VII alleging that the employer subjected him to a hostile work environment, disparate treatment based on reverse gender discrimination, and retaliation, he never imagined that his private social media communications and content would be subject to discovery and used to impeach the validity of his claim. However, his employer did exactly that and filed a motion to compel discovery seeking all pictures Ogden posted or was tagged in on “any social networking website.” Furthermore the defendant employer requested “all status updates, messages, both sent and received, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments and applications . . . .” This motion was likely never expected to prevail because of its breadth and lack of specificity; however, the court did not dismiss it altogether. Ultimately, the court granted the motion for discovery in part and denied it in part. Relying on the holding of Mackelprang v. Fid. Nat. Title Agency of Nevada, Inc., the court asserted that the defendant’s motion cast “too wide a net” and therefore requested information that would be in no way discoverable. However, Ogden did not get to keep all of his social media activities secret from the defendant as the court did carve out an area that was fully discoverable by the defense. Ogden was required to turn over all social media content relating to the lawsuit which contained information regarding his workplace conduct and his emotional state of mind before, during, and after he filed the lawsuit along with possible causes for that state of mind. Therefore, while Ogden’s employer did not gain unfettered access to his personal social media accounts, the court nevertheless allowed access to such information as pertaining to the instant suit regarding Ogden’s workplace conduct and emotional state of mind. The lesson here is that you should be ever so careful what you post on your social media sites; you never know when it could come back to haunt you. The fact that you thought it was private and thereby undiscoverable at trial will not help you. User beware. 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. Presently, A.S. clerks for the Monmouth Co. Office of the Public Defender. Want to read more articles like this? Sign up for our post notification newsletter, here.
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
We all have personal social media pages. No matter who you are, you likely have an online presence in the form of a profile on one of the many sites available on the Internet. One who simply forgets about a newly created social profile can be the subject of worldwide scrutiny—the page is available for all to see. Who cares, right? Most likely, you will not have anything important on there. However, what happens when you are facing a criminal charge and the prosecution uses your social media profile in order to prove your guilt? Meet Aliaksandr Zhyltsou, a Ukrainian native living his life in Brooklyn, New York. All was well until Zhyltsou allegedly furnished Vladyslav Timku with a forged birth certificate, which claimed that Timku was the father of a baby daughter. Timku, as a cooperating witness for the government, admitted that he had sought the forged birth certificate in order to skirt his responsibility to military service in his native Ukraine. During the trail, Timku offered testimony that Zhyltsou had sent him the forged document from the gmail account “email@example.com.” However, the prosecution was unable to offer any other evidence other than Timku’s testimony that tied Zhyltsou to this e-mail address. Therefore, more evidence was necessary in order to corroborate Timku’s claim. Special Agent Cline, from the State Department’s Diplomatic Security Service, provided the prosecution with the link between the e-mail address and the VK.com profile (the Russian equivalent of Facebook). Cline asserted that this profile on VK belonged to the defendant and was linked to the very same gmail account used to send the forged document to Timku. To prosecutors, it seemed like a slam-dunk: here was the evidence needed to corroborate Timku’s testimony and sufficiently tie Zhyltsou to the Gmail account in question. Everything seemed in order; the profile contained a picture of the defendant, his work experience, and most importantly the “azmadeuz” Gmail account. Furthermore, the district court agreed that this was the Zhyltsou’s profile page and therefore the prosecution could use it as evidence to establish the link between the defendant and the gmail account. However, one pesky evidence rule could ruin it all in an instant, Federal Rule 901. Simply, Federal Rule 901 requires that in order to “authenticate or identify” a piece of evidence, a proponent asserting any form of evidence “must produce evidence sufficient to support a finding that the evidence is what the proponent claims it is.” Therefore, in the instant case, the prosecution had the duty to prove that this VK profile page belonged to Zhyltsou alone and was not created by any other person. However, in his haste to provide this vital piece of evidence, the prosecutor failed to adhere to this rule and the case was ultimately overturned on appeal. This case is a prime example of the need for all lawyers to have a firm understanding of electronic discovery. While it may be easy to access social media profiles and the like in order to obtain evidence against an opponent, that is only part of the process. It must be proven that the profile actually belongs to your opponent before you may use it against them as evidence in a court of law. In today’s world, it is not difficult to create fake profiles on such sites and therefore the court was correct in overturning this ruling. However, it is not outside of the realm of possibility that the prosecution could have tied Zhyltsou to this VK profile, it would have simply taken a little more digging and investigative work. 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. Presently, A.S. clerks for the Monmouth County Office of the Public Defender. Want to read more articles like this? Sign up for our post notification newsletter, here.
In McCann v. Kennedy Univ. Hosp., Inc., the plaintiff Robert McCann sued Kennedy University Hospital, asking the court to sanction the hospital for intentionally or inadvertently destroying necessary videotapes. The plaintiff contended that the videotapes contained an account of the defendant’s emergency room lobby on the night the plaintiff claims to have been mistreated by the defendant’s staff. The plaintiff argued that the defendant knew or should have known that the video tapes were discoverable material and that there was actual withholding or suppression of the videotapes, which constituted spoliation. On December 21, 2011, the plaintiff was transported to the hospital after suffering extreme rectal pain and trouble breathing. The Plaintiff claims to have been in excruciating pain while he was waiting to be seen by the hospital staff. He states that he was ignored and neglected for at least seven hours. During the time that he was at the hospital, the plaintiff claimed to have collapsed on the floor and was left lying on the floor for over ten minutes, while staff walked over him without offering assistance. McCann also claimed that when he was eventually seen by the hospital staff, they treated him in ways that made him feel humiliated and uncomfortable. The hospital allegedly refused to treat McCann because he did not have insurance. On December 23, 2011, the plaintiff sent an e-mail to Renae Alesczk, the assistant to the Senior Vice President of the Kennedy Health System, complaining about his experience at the hospital while also threatening to sue. A few hours after the email was received, Aron Berman, formerly employed as the defendant’s Director of Guest Relations and Service Improvement, forwarded the McCann’s e-mail to Kim Hoffman, the Corporate Director of Patient Safety. The defendant claimed to have conducted an internal investigation of the complaints at that time, and notified the plaintiff that his complaints were being addressed. The hospital staff then stated that the investigation showed that the hospital staff acted appropriately and managed the patient’s clinical care in a professional manner. So far, so good. However, the plaintiff’s attorneys requested videotapes of the emergency room lobby, which showed the plaintiff waiting without being treated by staff. The defendants claimed that there was no videotape footage because they did not have enough disc drive space to keep all their video footage and had already erased the footage from the night in question. The plaintiff argued that the defendants knew or should have known that the videotapes would be requested in discovery, and that the defendants should not have destroyed the videotapes. The plaintiff claimed such activity as obstruction of justice and an intentional spoliation of evidence. The defendants argued that the tapes only show the time period during which the patient was in the waiting room, and are irrelevant to the plaintiff’s complaints about the treatment by staff when he was seen in the hospital. The Third Circuit has adopted a four-factor test for evaluating spoliation claims, finding that spoliation occurs where: “(1) the evidence was in the party's control; (2) the evidence is relevant to the claims or defenses in the case; (3) there has been actual suppression or withholding of evidence; and (4) the duty to preserve the evidence was reasonably foreseeable to the party.” Here, there is no argument that the tapes were in the party’s control. The court found that the tapes were not relevant to the plaintiff’s claims and that the defendant did not have a duty to preserve the video tapes at issue. Therefore, there had not been actual suppression or withholding of the evidence. The takeaway from this case is that the court found it was reasonable for the hospital to destroy the videotapes because the plaintiff’s claim was specifically in regard to his being treated while at the facility, NOT his experience while waiting in the lobby. However, to be safe, videotapes of the night in question should be preserved to avoid this kind of confusion. 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
This particular dispute revolved around ProconGPS, Inc.’s, the plaintiff, desire to introduce infringement charts or alternatively to amend its infringement contentions pursuant to Patent Local Rule 3–6 so the contentions were consistent with its infringement charts. The Northern District of California issued an opinion without oral argument granting the plaintiff’s motion to compel. These charts were provided as an answer to Skypatrol, LLC’s, the defendant, interrogatories asking for ProconGPS's evidence that the defendant performs, induces, and/or contributes to the infringement of each of the asserted claims of the patents-in-suit. The defendant argued the charts expanded the scope of allegations. Conversely, the plaintiff responded that the charts simply provided in more detail the information it obtained during discovery. The dispute is governed by Patent Local Rule 3-6 which stated: Amendment of the Infringement Contentions or the Invalidity Contentions may be made only by order of the Court upon a timely showing of good cause. Non-exhaustive examples of circumstances that may, absent undue prejudice to the non-moving party, support a finding of good cause include: (a) A claim construction by the Court different from that proposed by the party seeking amendment; (b) Recent discovery of material, prior art despite earlier diligent search; and (c) Recent discovery of nonpublic information about the Accused Instrumentality which was not discovered, despite diligent efforts, before the service of the Infringement Contentions. The court focused on section (c) and determined that the plaintiff had been diligent. The defendant had produced its discovery documents very slowly. Only 2,478 pages of documents were produced by December 7, 2012. About 500,000 more pages were produced in 2013 and the defendant’s source code was not made available until January 30th with paper copies produced in February. Additionally, the plaintiff proved the information was nonpublic because it was almost entirely made up of material that Skypatrol has designated “Highly Confidential–Attorneys' Eyes Only.” The defendant tried to argue the inclusion of the charts would prejudice it. However the defendant could not sway the court as it was not subject to any further discovery requests and no new products were added to the infringement claim. It appears that this is simply a case where Skypatrol could have prevailed had it provided its documents in a more timely fashion. Since the defendant did not produce everything before the Infringement Contentions as described in Patent Local Rule 3-6(c), the plaintiff was able to utilize Patent Local Rule 3-6. George is a graduate of Seton Hall University School of Law (Class of 2014). George complated both the Health and Intellectual Property Concentrations and is especially interested in patent law. He received both a B.E. and M.E. at Stevens Institute of Technology in Biomedical and Systems Engineering, respectively. During his time at Seton Hall, George worked as a law clerk at Stone Law in Colts Neck, NJ, where he assisted in the drafting of litigation documents and Office Actions with the United States Patent and Trademark Office.
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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”?Continue Reading
Litigation involving minors and schools can always be a difficult situation for all parties, and issues of confidentiality will often arise. In order to help the judicial system function effectively, blanket protective orders will often be necessary, but judges must also make sure that they are not harming the plaintiff by issuing these orders.Continue Reading