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Larry Klayman sued six separate journalist defendants for defamation. This case is about Klayman wanting more discovery from the defendants. Specifically, Klayman’s motion is to compel the production of documents and to hire a computer expert. In this case, Klayman has conceded the fact that he is a public figure. So, in order to win in a defamation suit, he must prove by clear and convincing evidence that the journalists published the statements about him with actual malice. Thus, Klayman made this discovery motion to try to obtain “any and all documents, discussions and/or publications that refer or relate in any way to Plaintiff Larry Klayman within the past five years,” as well as several other document requests. Klayman contends this information is relevant to state of mind of the journalists. However, the defendants represent that they have already provided Klayman with all relevant information. Based on this representation, the court denied Klayman’s request to compel document production. Klayman also petitioned for a computer retrieval expert to be hired to go through each defendant’s computer files. Klayman claimed that the defendants had improperly withheld documents. However, the court ruled that the plaintiff must show good cause in order to compel a forensic expert, and here he has failed to do so. The court further stated that his assertions were “conclusory and unpersuasive.” 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.
This case involves ACT, a career guidance service firm that assists job seekers throughout their job search, suing Daniel Drasin, the administrator of a blog known as Random Convergence. According to ACT, Drasin exercises editorial control over the blog. ACT complains that the blog disparage ACT's services and damages ACT's business and reputation. On March 11, 2013, Magistrate Judge Kristin Mix granted ACT's motion to serve third party subpoenas on Drasin, demanding that he produce the name and contact information for each of the people who posted disparaging remarks on Drasin’s blog. On April 18, 2013, Drasin, then self-represented, filed a third-party motion to quash the subpoenas, stating that they violated the bloggers’ rights to First Amendment right to anonymous speech. He also argued that most individuals who posted comments on the Blog did so anonymously, and he explained that he had no records of those who chose to remain anonymous. The court sided with Drasin and quashed the subpoena. The court found that the Subpoena imposes two types of burden on Drasin. First, in order to comply with the subpoena, Drasin must surrender his personal hard drives to ACT for up to thirty days. Personal computers generally cannot function without their hard drives, so this requirement would force Drasin to spend up to thirty days without the use of his personal computer. Second, forcing Drasin to surrender his hard drives to ACT would give ACT access to Drasin's personal files. Moreover, ACT has alternative means to obtain the information it seeks, such as serving a subpoena on Google. The court also found persuasive that the benefits of the Subpoena appear to be minimal, as there is no indication in the record that Drasin possesses any information that would be relevant in the Colorado Action beyond that which he has already provided. The takeaway message is that subpoenas can be quashed if discovery imposes an undue burden, if the information is irrelevant to the action, and if there are other avenues from which the information can be obtained. 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
It is never a good idea to raise the suspicions of the court. If a party is going to try to cover its tracks, it has to do so subtly and discretely. It certainly has to do a better job than Dr. O did in the above case. She revealed too much information about herself in the early stages of the case, and it came back to hurt her when it was time to produce discovery. MetLife has brought suit against Dr. O, after the doctor tried to make an insurance claim based on an alleged disability. First of all, Dr. O delayed her responses to initial discovery requests, which is just never a good idea! But not only that, it was subsequently discovered that she had email accounts containing relevant documents that she had not even previously disclosed! Needless to say, Dr. O has already lost all benefit of the doubt in this case. Dr. O was ordered to turn over the computers she used during the relevant period so that MetLife could perform a key word search. Instead of turning over all computers that she used, she turned over only the two computers that she owned. She claimed that she did not have access to all the computers she used anymore, because some were in Internet cafes she used while traveling. OK, fine, but even still, the computers she did turn over, the two computers she owned and presumably used most often, reflected very little activity! Her hard drives showed no evidence of her sending or receiving any emails during a five-year period. In addition, the hard drives reflected a minimal amount of Web browsing. Well that certainly piques the Court’s interest, especially in light of Dr. O’s earlier testimony in which she admitted to searching the Internet on a daily basis! So she searches the Web every single day, and yet there is no record of it on either of her personal computers? Suspicions have been officially raised! But it does not end there. Dr. O specifically testified at her deposition that she used her personal computer (one of the two she handed over) to type up a twenty two-page letter complaining about MetLife. Well, lo and behold, there is no record of this letter reflected in the personal documents on the computers she turned over. So now Dr. O has been caught in a direct lie! But wait, there’s more! Dr. O testified that she engaged in online banking…but the computers show no record of that, either. She also admitted to doing a lot of online shopping as a symptom of her depression and PTSD. And yet, there is nothing on her computers that is consistent with even a single purchase! Dr. O was not subtle and discrete in covering her tracks, and the court saw right through it. It explained that in light of earlier testimony that the doctor is an avid computer user, the lack of use on the computers she turned over demonstrates that she did not provide all of her principal computers. The court found that Dr. O willfully failed to comply with the court’s orders compelling production, and that this refusal was done in bad faith, prejudicing MetLife’s ability to present its case. Therefore, due to the extent and continued nature of non-compliance on the part of Dr. O, the court imposed an adverse inference instruction against the doctor. Again, this just goes to show that a party has to be more careful than Dr. O was in this case. It cannot claim to use computers all day, every day, and then respond to an order of production of these computers by turning over computers that reflect very little, if any, use. Dr. O was too obvious about what she was doing, and the court sanctioned her for it. Do not be like Dr. O! Logan Teisch received his B.A. in Government and Politics from the University of Maryland, College Park in 2012. He is now a student at Seton Hall University School of Law (Class of 2015), focusing his studies in the area of criminal law. Logan’s prior experiences include interning with the Honorable Verna G. Leath in Essex County Superior Court as well as interning with the Essex County Prosecutor’s Office. Want to read more articles like this? Sign up for our post notification newsletter, here.
In this case, a non-profit corporation, National Jewish Health, is suing WebMD. A very important sub-issue arose in this case regarding electronically stored information requested by the plaintiff during discovery. The plaintiff issued very broad discovery and interrogatory requests regarding emails between employees of the defendant. Because of the complexity of the electronic discovery at issue, the presiding judge, Daniel Y. Wiley, appointed Ronald J. Hedges as a special master to give a recommendation regarding electronic discovery. WebMD uses Enterprise Vault to maintain its email. This system is very useful because it preserves all emails sent by employees to prevent the emails from being altered or destroyed. This system also allowed the IT department of WebMD to search and sort the emails received and sent by specific employees. Using an eDiscovery tool in Enterprise Vault, the IT department of WebMD produced emails generated by the search criteria provided by WebMD’s legal team. WebMD’s counsel produced the emails in one of the following formats: Individual native files with attachments extracted; .DAT file using standard concordance delimiters and containing metadata (standard fields) for the above mentioned native files; and Text files/OCR for each native file provided as individual text files with a text path provided in the .DAT file. Additionally, all the emails produced are fully text searchable, sortable, and paired with all metadata. National Jewish Health (NJH) submitted a motion for sanctions against WebMD because they received roughly 280,000 documents as a result of their document request. NJH viewed this as a data dump and claimed there were over 100,000 duplicate files produced. But as it turned out, WebMD had already filtered the documents for duplicates and NJH could not prove that it had even conducted searches of the documents. Additionally, all documents produced by WebMD were in their native format, or an otherwise usable format. As a result, NJH’s motion for sanctions was denied. Another notable issue in this case is regarding WebMD’s storage of employee emails because an individual must serve as the custodian of the emails. Judge Wiley stated that, “a company, through its IT department, can serve as the custodian of electric files stored on company servers.” Since WebMD saved its emails on the Enterprise Vault, NJH has no argument as to custodianship. The final issue raised in this case is regarding NJH interrogatories. WebMD objected to the interrogatories as being overbroad and burdensome because the interrogatories requested the sorting and labeling of documents. Instead of answering the interrogatories, WebMD instead turned over their business records, which is acceptable under the rules. The purpose of this option to produce documents in the usual course of business is to place the burden of research on the party seeking the information, instead of requiring the responding party to conduct a burdensome or expensive search of its own records. Judge Wiley stated that the interrogatory requests were in fact overly burdensome as WebMD is not required to sort and label 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 Seton Hall’s 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
Last summer the District Court for the Northern District of Illinois decided a case that allows your old boss into your home. Well . . . not literally. Magistrate Judge Geraldine Soat Brown granted a motion to compel discovery for a plaintiff-employer over objection of defendant-employee. The plaintiff, Network Cargo Systems U.S.A., Inc. claimed that its former employee, Caroline Pappas, stole proprietary technology and destroyed other electronic data upon termination. Plaintiff denied the request, and consented to limited discovery. After expedited discovery took place, plaintiff returned to the court requesting that an independent technology investigator be granted access to all of Ms. Pappas’s electronic devices. The court ordered defendant’s counsel to “determine what electronic devices [Pappas] used between 4/1/13 [2 months before termination] and 2/14/14 [the hearing date].” Network Cargo Sys. U.S.A., Inc. v. Pappas, No. 2014 WL 1856773 *2 (N.D. Ill. May 7, 2014). A week later, counsel indicated six devices: two personal computers, an iPad, an iPhone, a Blackberry (which was returned to Network), and a work laptop provided by defendant’s new employer. After the court’s order, the parties agreed to split the cost of imaging three personal devices: the personal computers and the iPad. Once the imaging was performed by the independent consultant, it was determined that three previously undisclosed flash drives had been connected to defendant’s personal computers during the relevant time frame. Id. The plaintiff demanded immediate access to those flash drives, as they may contain relevant evidence. The court agreed, even though the initial connection of the flash drives to the personal computers happened months after the employee was terminated from Network. The court insisted that plaintiff pay the full cost of imaging the additional devices, though, stating “[t]he likelihood that Pappas was using these flash drives to transfer Network’s confidential information would seem to become more remote with the passage of time.” Id. at *3. Defendant Pappas was forced to turn over flash drives and personal computers. While the target of the investigation is possible stolen proprietary material, through forensic imaging the independent consultant had access to each and every file on the device. Perhaps Pappas can take solace in the fact that her iPhone wasn’t subject to discovery, as the device likely contains more sensitive data than just high scores to Candy Crush. 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.
Communication is key to any joint status report! Parties should not risk annoying the court by refusing to withdraw a motion when both sides are essentially in agreement. The court will find a protective order unnecessary when the defendants completely understand their preservation duties, acknowledge their duties, and have made substantial efforts to preserve discoverable evidence. Under such circumstances, the plaintiff or moving party will both lose the motion and risk wasting the court’s valued time. In McDaniel v. Loyola University Medical Center, McDaniel, the plaintiff, filed a motion seeking a document preservation order after learning that the Loyola University Medical Center, the defendant, planned to change its e-mail system provider. The defendant was transitioning from GroupWise to Microsoft Office, and the plaintiff feared that relevant e-mails would be erased or lost. In response, the court directed the parties to confer in an effort to resolve the preservation issue in a mutually agreeable way. In the submitted joint status report, the defendant demonstrated its belief that it had adequately assured the plaintiff of his spoliation concerns; however the plaintiff was still unwilling to withdraw the motion. As a starting proposition, a party has a duty to preserve evidence if it reasonably knew or could reasonably foresee was material to a potential legal action. Almost a year before the plaintiff filed his initial complaint in this case, the defendant issued litigation holds and constant reminders to 71 employees who may have information relevant to the litigation. Furthermore, the defendant took similar precautions with the additional 20 custodians identified by the plaintiff. Despite the defendant continually recognizing that it was under an obligation to preserve evidence, the plaintiff needlessly insisted that a preservation order was a necessary additional precaution. The court disagreed with the plaintiff and held that a preservation order was unnecessary. When deciding whether to enter the preservation order, the court considered (1) whether the plaintiff demonstrated that the defendant would destroy evidence, (2) whether the plaintiff would suffer irreparable harm without a preservation order, and (3) the burden that likely would result from granting the protective order. Here, the defendant was fully apprised of the scope and gravity of its preservation duties, and the plaintiff failed to demonstrate that the defendant would destroy evidence without a preservation order. The court found that a protective order would be superfluous and needlessly burdensome in this case. Moreover, the court noted in its decision that the parties appeared to be talking past each other and, in actuality, were in complete agreement regarding the defendant’s preservation duties. Lawyers must avoid submitting superfluous and needlessly burdensome motions to the court. Do not waste the court’s valuable time with unnecessary motions on issues that have already been mutually agreed on by both parties. The last thing any lawyer should want to do is to get on a judge’s bad side during the discovery stage of the litigation. 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.
The form of ESI production is specified in Rule 34, subject to court-approved agreement between the parties. If a particular format is important to a requesting party, it is critical to stipulate it unambiguously early on. If the party fails to make that stipulation, it will most likely be too late to ask for reproduction of documents that have already been produced although not in the format the requesting party expects, unless the producing party is in violation of the very flexible Rule 34. In Melian Labs v. Triology LLC., the parties filed a case management conference statement (referred as the “Joint Rule 26(f) Report”), and informed the district court that: With respect to the production of electronic data and information, the parties agree that the production of metadata beyond the following fields [is] not necessary in this lawsuit absent a showing of a compelling need: Date sent, Time Sent, Date Received, Time Received, To, From, CC, BCC, and Email Subject. The parties agree to produce documents electronic form in paper, PDF, or TIFF format, and spreadsheet and certain other electronic files in native format when it is more practicable to do so. During a 2-month period following the conference, Melian produced 1,218 pages of documents in PDF format. Triology complained about the format, claiming that these PDFs were stripped of all metadata in violation of the agreement of the parties and that the spreadsheets were not produced in their native format. Melian disagreed and the parties filed joint letters to the court to address the sufficiency of Melian’s ESI production. As with the e-mail production, Triology contended that Melian’s production of large PDF image documents was violative of FRCR 34(b)(2)(E) because they were not produced in their native format and were not reasonably usable. The court pointed out that Rule 34(b) only requires that the parties produce documents as they are kept in the usual course of business or in the form ordinarily maintained unless otherwise stipulated. The Joint Rule 26(f) Report was a stipulation. But the Report did not require that all ESI be produced electronically. Instead, it stated that ESI may be produced in paper, PDF or TIFF. Production in electronically searchable format certainly would ease Triology’s review, but that was not required by the Report. E-mails produced by Melian in paper or PDF contained text fields prescribed by the Report and the e-mail production was thus not deficient. To the extent that some e-mails had these fields cut off or it was not apparent from the face of the e-mail, the court instructed Triology to serve a request to Melian for further providing the missing information. As for the spreadsheets, Triology contended that Melian had failed to comply with the Joint Rule 26(f) Report by refusing to produce all spreadsheets in their native format. The court again held against Triology, stating that the Report did not require the production of ESI in their native format. In this case, when some of the spreadsheet printouts were difficult to read, it produced them in native format (Excel) upon request by Triology. The court approved of this remedial procedure and held that Melian did not need to produce all spreadsheets electronically in native format according to the stipulation of the Report. The court was noticeably agitated by this kind of complaint asking for the court’s involvement. The court believed that these disputes could have been easily resolved by the parties without seeking court intervention. Here is a quote from the last sentence of the opinion: “the parties are ordered to meet and confer in good faith before seeking further court intervention.” The bottom line is that if a requesting party wants to have documents produced in their native format, it should make a clear and unambiguous stipulation as to the form of production in order to override the choices afforded to the producing party by Rule 34. Of course, the stipulation, usually reached at some case management conference, must be agreed upon by both parties and approved by the court after the burden and proportionality issues are considered by the court. And very importantly, stay on the good side of the court by trying to resolve these discovery issues without going to the Court for intervention. 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.
There is nothing more daunting then receiving a request for a backup drive with 1 or more gigabytes of data on it. The good news is that the courts have recently allowed the use of a new tool that can save business owners time and money: predictive coding. In the case of Dynamo Holdings v. Commissioner of Internal Revenue, the court allowed the use of predictive coding in order to identify relevant and confidential information stored on a company backup drive. This was one step in the course of court technology efficiency, but a giant step in the world of electronic discovery! Whether or not the parties were allowed to use predictive coding became a central issue because the back up drive in question held approximately one gigabyte of electronic data. Just to give you a frame of reference, this equates to approximately 200,000 to 400,000 individual documents. The producing party estimated that is would cost them about $450,000 just to review all the data before giving it to the opposing party. The producing party and the client paying for the discovery was daunted with the idea or spending that much time and money just reviewing documents. Also, the alternative of giving up the data without reviewing it could be detrimental to their case. In the end, the cost effective, technological answer was predictive coding. This opinion was highly influenced by the article written by Magistrate Judge Andrew Peck’ who describes predictive coding. Predictive coding is a process that essentially can predict the relevance of documents and identify which documents are not responsive. Judge Peck’s article explains that the computer identifies properties of documents and uses those properties to code other documents. As more sample documents are coded, the computer actually predicts the future coding. In a way, predictive coding is a reviewer teaching the computer what types of documents are relevant and what is confidential. Judge Peck states in his article that it usually takes only a few thousand documents to train the computer, which, compared to one gigabyte of data, is a drop in the bucket. In other words, predictive coding is a tool that uses algorithms to search rather than manually reinventing the wheel every time a labor-intensive discovery request is made. The algorithms use keywords, dates, custodians, and documents types in order to filter through hundreds of thousands of documents in a drastically shortened period of time. Now, some may be thinking, “how do you know that coding is producing the correct results?” Senior reviewers take samples throughout the process in order to determine the accuracy of the results. Additionally, a log can be produced detailing the records that were withheld and the reasons for doing so. This process may not be as simple as implementing a “claw back” provision (aka. a party can recall a document that was not supposed to be produced); however, it presents an accurate and efficient way to move along a trial and discovery process while mitigating harm to the party producing the information. Judge Buch weighed the interest of both parties: receiving party wanted as many documents as could be produced, and producing party wanted to protect the client from producing irrelevant or confidential documents. The predictive coding process was considered: (1) restore some or all of the date from the tapes; (2) Qualify the restored date; (3) Index and load the qualified restored date into a review environment; (5) use predictive coding to review the remaining data using search criteria that the parties agree upon; and (6) produce the relevant non-privileged information and privilege log that sets forth claimed privileged documents. In the end, Judge Buch’s conclusion was very clear. Predictive coding is an acceptable electronic search tool that can be used during the discovery process. 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.  For information about predictive coding, see Magistrate Judge Andrew Peck’s published article: Search, Forward: Will Manual Document Review and Keyboard Searches be Replaced by Computer-Assisted Coding?, L. Tech. News (Oct. 2011).
Executive Mgmt. Services, Inc. v. Fifth Third Bank is not a riveting case to read. It involves a rather mundane breach of contract claim by the plaintiff alleging wrongdoing by the defendant. Namely, Executive Management Services brought suit against Fifth Third Bank alleging that the bank had made misleading statements regarding interest-rate swaps. While the subject matter of the claim would fail to interest anyone, the procedural elements and motion practice offer a far more interesting and educational prospect. In building their defense, Fifth Third Bank sent Executive Management Services multiple discovery requests, which included tax returns, financial statements, and documents referring or relating to their (EMS) loan applications. However, Executive Management Services refused to produce the requested discovery on three grounds. First, EMS argued that the requested as they have "not claimed to be unsophisticated regarding standard commercial banking," only that they "did not understand the risks of the swap transactions." Second, the EMS argued that the defendant’s discovery requests were "overly board and unduly burdensome." Third, EMS claimed privilege regarding the requested documents under both attorney-client privilege and the work product doctrine. The court rejected EMS’s first argument right out of the gate. EMS claimed that the documents sought were not relevant to the issue at bar and therefore did not need to be turned over to their adversary. EMS claimed these documents were irrelevant because they had "not claimed to be unsophisticated regarding standard commercial banking," but rather that "did not understand the risks of the swap transactions." However, the court was not persuaded by this argument because even though this was a new area of investment banking, it remained the same procedure and protocol as any form of investment banking. Therefore, EMS’s past actions in commercial banking provided them with a foundation by which to understand this new field of investment and thus the documents proving this foundation were relevant. The court also rejected EMS’s argument that the documents were privileged under attorney-client privilege and the work product doctrine. While there may have been concerns regarding the confidentiality of these documents the court stated that the protective order in place addressed and negated all of the concerns posed by this argument. EMS’s second argument seems like it could have had the most impact out of the three; however, hardly any effort at all was put forth in crafting it. The plaintiffs simply stated that the production of such documents was unduly burdensome and overbroad and left it at that. There was no further development of this argument and therefore the court rejected it on its face. If the plaintiffs had put forth any evidence regarding why the request was overbroad or unduly burdensome the court may have limited the requested discovery. The plaintiffs should have offered evidence regarding why this request was unduly burdensome and overbroad; their failure to do so resulted in the court rejecting this argument on its face. 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.
Were the defendants at fault for providing to the plaintiffs a CD containing information confusing to the plaintiffs? A court found that, no, the parties should have communicated with each other in order to facilitate the discovery process. The issue arose when the defendants provided a CD to the plaintiffs containing information the plaintiffs had requested. However, the plaintiffs did not know how the defendants collected the information on the CD, nor did the plaintiffs know how the contents were responsive to their discovery requests. Based on this incident, the plaintiffs filed this motion to appoint a neutral discovery master to oversee the discovery process. The plaintiffs also argued that the defendants had not been timely with their discovery submissions. However, as the court pointed out, the plaintiffs had not been timely. Ultimately, the court found that if the parties had merely taken the time to communicate with each other that this motion likely could have been avoided. The court further stated that the parties must, “meet and confer in good faith in order to communicate about issues of untimely or confusing production and resolve them without judicial intervention.” Thus, the court dismissed the motion. 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.