Claw Back

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.

How Can One Secure An Order Protecting One From Producing Certain ESI?

This matter came before the court upon Plaintiff Black & Veatch’s Motion for Protective Order and Request for Discovery Conference. B&V entered into a series of agreements wit American Electric Power Services (“AEP”) and other companies (collectively, the “Owners”) to engineer, procure material, and construct wet flue gas desulfurization systems (also known as JBRs). The Owners claimed the JBRs were defective. B&V paid several millions of dollars to repair and replace the JBRs. To recover some of the incurred costs, B&V filed a claim with its professional liability carriers, filed suit against a subcontractor, and filed a breach of contract and declaratory judgment action against various insurance providers relating to the relevant insurance policies. B&V alleged it maintained Electronically Stored Information (“ESI”) relating to the JBRs on Documentum—an electronic document management program, custodian hard drives, and Accounting and Field Management System. B&V produced 448.7 gigabytes of data to the Defendant. However, B&V withheld additional relevant ESI, arguing that the Defendants’ proposed search terms were too board and producing discovery pursuant to those search terms would be unreasonable and excessively expensive. B&V was unable to estimate the cost of producing the ESI. B&V sought a protection from producing this additional relevant information. In the alternative, B&V proposed to shift some of the cost in producing the ESI to the Defendants. Fed. R. Civ. P. 26(c) states, “a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. The movant bears the burden of establishing good cause by making a particular and specific demonstration of fact. A mere conclusory statement that ESI production would cost a party tens or hundreds of thousands of dollars does satisfy a movants burden to make a specific demonstration of fact in support of a protective order. The court held that B&V’s undue burden and expensive argument to be unsupported and conclusory. B&V failed to provide any hour or cost estimate. Thus, the court denied B&V’s Motion for Protective Order.  Additionally, the court refused to grant the protective order because the Defendants’ search terms were overbroad, noting that Fed. R. Civ. P. 26(c) only allows protective orders when the movant proves the order is necessary to protect the party from annoyance, embarrassment, oppression, or undue burden. Over breadth is not an enumerated category. The court also denied B&V cost shifting proposal. Fed. R. Civ. P. 26(b)(2)(C)(iii) allows the court to impose cost shifting measures when the party from whom discovery is sought demonstrates that the information is reasonably accessible because of undue burden or cost. B&V failed to show that the ESI production was inaccessible because of undue burden or cost because B&V’s only mention of cost to produce ESI was conclusory and unsubstantiated. Furthermore, the court stated that the parties were free to enter into a clawback agreement, which would compel the parties to return inadvertently produced privileged documents. B&V also sought protection from producing ESI from the custodian hard drive, arguing that that data produced pursuant to Defendants’ search terms would be unrelated or duplicative. Moreover, B&V argued that a Defendant’s proposed list of custodians was overly broad. Defendant argues that the proposed list is reasonable on its face given that the case involves a $70 million coverage dispute. The court again denied B&V’s Motion for Protective Order because B&V failed to substantiate its claim that the production of ESI from the custodian hard drives pursuant to proposed search terms will yield unrelated or duplicative data. B&V also failed to substantiate its claim that Defendant’s proposed list of custodian hard drives was unduly burdensome because it was without any information regarding the custodians’ job duties, their involvement with the facts at issue, or whether they had potentially relevant information on their hard drives Finally, B&V sought protection from producing electronic interim accounting reports regarding the cost of the JBR projects, arguing that such production would be wasteful, expensive, and burdensome. B&V stated that only the final accounting costs were necessary to determining damages, and a final cost accounting report was previously produced to the Defendants. The electronic interim accounting reports requested by the Defendants are adjusted monthly, and do not represent final costs needed to determine damages. Defendants argued that the report produced did not include the final cost documents, and the lack of information prevents them from properly assessing damages. The court again denied B&V’s Motion for Protective Order because B&V did not substantiate how producing the electronic interim accounting reports would be unduly burdensome or expensive. B&V’s assertion that monthly-adjusted accounting reports will not provide final cost information was conclusory. Aaron Cohen, a Seton Hall University School of Law student (Class of 2015), focused his studies in the area of Family Law. He participated in the Seton Hall Center for Social Justice’s Family Law Clinic. After graduation, he will clerk for a judge in the Superior Court of New Jersey, Family Division. Prior to law school, he was a 2011 cum laude graduate of The George Washington University Columbian College of Arts and Sciences, where he earned a B.A. in Psychology. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Is An Employer Permitted To Monitor and Review An Employee’s Internet Activity and Usage?

On March 10, 20108, Marc Liebeskind began working at Rutgers Facilities Business Administration Department.  By March 28 of that year, Liebeskind was terminated for lacking the basic skill set needed to perform his job in addition to having a poor attitude while on the job. Liebeskind’s supervisors had suspected he was spending an unreasonable amount of time on non-work related activities on his work computer. Having doubts about Liebeskind’s work performance, his supervisors reviewed the browsing history on Liebeskind’s computer by using an application called IEHistoryView. It is important to note that this search only entailed browsing history, and there is no evidence that Liebeskind’s supervisors were granted any access to his personal or password-protected information and accounts. After his termination, Liebeskind filed suit against Rutgers University and his supervisors, claiming invasion of privacy, among other claims. On appeal, the New Jersey Superior Court Appellate Division affirmed the lower court’s ruling, which ruling struck down all claims that Liebeskind’s privacy was violated as a result of his supervisors’ investigating the browser history on his computer. The appellate court referenced the New Jersey Supreme Court’s Stengart ruling, which had set the precedent for an employer’s right to monitor employee Internet activity and usage. Closely followed in previous eLessons Learned posts, the 2010 Stengart ruling held that an employee’s email communication with her attorney, using a company-issued computer, but via a personal, password-protected email account was held to be protected by the attorney-client privilege. However, the court’s decision to uphold Stengart’s privacy was not intended to forbid employers from monitoring employees’ actions on company-issued computers or devices in the future. In Stengart, New Jersey’s highest court stated: “Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies.” As noted in Liebeskind, Rutgers’ “Acceptable Use Policy for Computing and Information Technology Resources” was in effect during the time of Liebeskind’s employment. This policy expressly stated that an employee’s privacy “may be superseded by the University’s requirement to protect the integrity of information technology resources, the rights of all users and the property of the University.” Additionally, Rutgers University “[r]eserve[d] the right to examine material stored on or transmitted through its facilities.” Unlike the findings in Stengart, the court established that Liebeskind did not have a “reasonable expectation of privacy.” In addition, the court agreed that Rutgers had a “legitimate interest in monitoring and regulating plaintiff’s workplace computer.” All companies can learn from this case and the policies in place at Rutgers that protected its right to monitor and search an employee’s computer. One of the most important lessons to be learned here is the need for a written internet usage policy. At the very least, these written policies should mandate that employees are expected to use the Internet and their work issued computers for work related activities only. Additionally, the possible disciplinary actions for any violation of this policy should be made available to employees. As seen in in this case, the existence of an internet usage policy and the reserved right of a company to monitor its employee’s Internet activity is the key to eliminate an employee’s reasonable expectation of privacy.

When are Details of an Expert Analysis NOT Compelled?

Dover v. British Airways, PLC, involves a class action lawsuit where the plaintiffs alleged the airliner unlawfully imposed fuel surcharges on its frequent flyer program rewards flights.  The plaintiffs supported their claims with a regression analysis.  This statistical study, also known as the r-squared analysis, estimates the relationship between two variables and allegedly shows fuel surcharges were mostly unrelated to the changes of fuel prices.  British Airways served the plaintiffs with a request for all documents relating to the r-squared analysis.  However, that request was denied by Magistrate Judge Go, whose order was affirmed on appeal by District Judge Dearie. While the overarching issue is under what circumstances the details of an expert analysis will not be compelled during discovery, this case brings to light several additional sub-issues.  The defendants argued that the information, produced by a non-testifying expert, was not protectable work product and that any protection that may have attached was forfeited through inadvertent disclosure on two occasions. Tackling the latter issue, the plaintiffs’ first inadvertent disclosure occurred during the course of a 137-page document production.  More notably, the second inadvertent disclosure occurred during the course of the plaintiffs’ documents submission complying with the defendant’s request for metadata.  The plaintiffs inadvertently reproduced the unredacted version of a particular spreadsheet that contained experts’ names and calculations.  As this was the second of the two inadvertent disclosures, the court expressly acknowledged that the “plaintiffs should have been on notice with the first inadvertent disclosure that the spreadsheets contained protected information and should have carefully reviewed the spreadsheets before providing them to their vendor and producing them to defendant.”  But, under the stipulated protective order signed by both parties, a claw back provision recited that the inadvertent disclosure of any material that qualifies as protected information does not waive the privilege on privileged information.  The law with respect to such a protective order invokes the waiver of privilege only if production was completely reckless, and the court did not find completely reckless behavior in this instance.  Rather, the court simply found the plaintiffs were careless in twice disclosing a few rows and columns on two pages of a 34-page spreadsheet. Addressing the issue of the fact that the r-squared analysis was performed at the pre-filing stage by a non-testifying expert, both Magistrate Judge Go and District Judge Dearie paid particularly close attention to the underlying fairness at stake and addressed the issue of whether it was fair for plaintiffs to submit an expert analysis in their complaint—that survived a motion to dismiss—and then disclaim the analysis in the future.  Because the plaintiffs disclaimed future reliance on the analysis conducted by their consulting expert, Federal Rule of Civil Procedure 26(b)(4)(D) is invoked for its protection of the disclosure of information from non-testifying, consulting experts.  Under this rule, discovery is only permitted upon a showing that it is impracticable for the party to obtain facts or opinions on the same subject by other means.  Since extraordinary circumstances were not found, details relating to the analysis were not compelled. Although it may seem unfair, the r-squared analysis was not the reason the complaint survived the motion to dismiss; the court was required to proceed on the assumption that factual allegations are true even if their truth seems doubtful, and consideration of the attacks on the consulting expert’s analysis would not factor into assessing the complaint’s plausibility. Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Federal Judge in Illinois Denies Media Group’s Motion to Intervene Under FRCP 24(b)

Despite the importance of the general right to public access of court proceedings, a federal judge in Illinois ruled that a media group could not intervene in a lawsuit because, although it had standing, intervention would cause undue prejudice.

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Letter, Reassess, Repeat: Avoiding Privilege Waiver After Notice of Inadvertent Production of Documents

Technology today often serves as the crutch upon which students and members of the workforce rely to complete and review assignments.  However, such technology does not always efficiently replace good, old-fashioned human effort.  For instance, the spell-checker in Microsoft Word can alert you to a possible mistake but the decision to continue searching for other mistakes must be made by the user.  Indeed, the existence of even one mistake should alert the reader or provider of a document that other mistakes may be present and prompt that person to reevaluate the rest of work.  The 2009 decision United States v. Sensient Colors, Inc. is a critical example of how damaging the failure to promptly and diligently check for additional mistakes can be for privilege invocations during discovery production.

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Letter, Reassess, Repeat: Avoiding Privilege Waiver After Notice of Inadvertent Production of Documents

Technology today often serves as the crutch upon which students and members of the workforce rely to complete and review assignments; however, such technology does not always efficiently replace good old-fashioned human effort. For instance, the spell-checker in Microsoft Word can alert you to a possible mistake but the decision to continue searching for other mistakes must be made by the user. Indeed, the existence of even one mistake should alert the reader or provider of a document that other mistakes may be present and prompt that person to reevaluate the rest of work. The 2009 decision United States v. Sensient Colors, Inc. is a critical example of how damaging the failure to promptly and diligently check for additional mistakes can be for privilege invocations during discovery production.

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Video eLesson: Stengart v. Loving Care (Decided March 30, 2010)

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Use a Fine-Tooth Comb Before and After Document Production

The document reviewing attorney is charged with an unenviable task: Review thousands of documents to ensure that no privileged information is produced to opposing counsel. Given the fact that document productions may consist of thousands or even millions of pages of documents, it is not surprising that privileged documents will slip by the watchful, often weary, eye of reviewing attorneys – it is inevitable. Not to worry, the Federal Rules of Evidence are sympathetic to those tired eyes. Inadvertently produced privileged documents do not automatically lose their privilege protection. However, it is important to note that although FRE 502 allows some wiggle room for error, the attorney for the producing party must be careful. Failing to take reasonable steps to prevent inadvertent disclosure, or failing to promptly identify privileged documents that had been produced mistakenly can result in the waiver of highly privileged documents, oftentimes a deathblow to an otherwise winnable case.

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