Privilege

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.

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

The court began its opinion by reciting the quote that “[d]iscovery relevance is minimal relevance,” leading most readers to presume the court was going to rule in favor of Plaintiff’s motion to compel.  However, after learning that Plaintiff sought “the entire claims file” of Defendant, that presumption slowly dissipates. The motion before the court involved Plaintiff’s request for an order compelling Defendant to produce documents that are responsive to certain of Plaintiff’s second, third and fourth sets of Requests for Production of Documents.  The Plaintiff alleged that Defendant’s objections are premised on unsupported claims of privilege and that the documents Defendant did turn over were excessively redacted.  After a back and forth regarding the concept of “privileged” the court rules that the real crux of the issue is the “point at which Defendant was reasonably anticipating litigation.” It is at this point that a privilege is created for the documents at issue based on the work product doctrine as outlined in Fed. R. Civ. P. 26(b)(3)(A) at which point a privilege for the documents at issue based on the work product doctrine. Because insurance claims are of such sensitive and proprietary nature, the court holds that the question of whether insurer documents were created in anticipation of litigation “depends on whether the party seeking protection can point to a definite shift made by the insurer from acting in its ordinary course of business to acting in anticipating of litigation.”  Colloquially known as a “trigger” for document preservation, the burden is on the Defendant to establish the existence of such privilege in the face of litigation.  The court ultimately held that the relevant date was December 28, 2012, when Defendant sent a letter regarding a settlement check.  Thus, the court ordered that any information withheld on the basis of work product doctrine after that time must be produced. After serving its second set of discovery requests, the Plaintiff subsequently asked for the documents to be produced in native electronic format.  However, the Defendant had already produced documents in paper and PDF form, which Plaintiff alleged was not the form maintained by the Defendant “or in any reasonably usable form.”  Citing Fed. R. Civ. P. 34(b)(2)(D) and (E), the court noted that the rule allows, but does not require, the requesting party to specify the form in which it is requesting electronic data.  The court also noted there is nothing in the rule that prohibits a party from requesting different formats from one set of discovery requests to the next. Ruling in favor of the objecting Defendant, however, the court considered the “proprietary nature of certain software used by Defendant” and “Defendant’s right to withhold privileged information” as well as the “added costs of re-producing information already submitted to Plaintiff.”  Because the Defendant endured the time, effort, and expense of producing documents in PDF form as initially requested by Plaintiff, the court denied Plaintiff’s request to compel the native electronic forms of such documents. The Plaintiff’s motion to compel also sought all files containing “similar” claims.  While disregarding the Plaintiff’s motivations for requesting such documents, the court opined that the effect of requiring this production would be to “subject [Defendant] to undue burden in light of topics which, at best, have limited evidentiary value in this case given the broadly worded nature of the information requested.” Adding insult to injury, the court makes it a point to criticize Plaintiff’s complaint.  The cause of action was premised on a breach of the covenant of good faith and fair dealing yet Plaintiff’s motion “continually” refers to this as a claim for “bad faith.”  Succinctly and sharply, the court imparts some legal education by bluntly stating that the two are not interchangeable.  After making its criticism of Plaintiff’s mischaracterization, the court writes that “even if such information were to be considered relevant, the requests, as written, are facially over broad.” The court broadly cites a “lack of specificity” before denying more than 25 of Plaintiff’s discovery requests.  Because Plaintiff “failed to provide a sufficient, substantive limitation,” the court ruled that these “generalized discovery requests” were “facially over broad as well as irrelevant.” Lastly, seemingly as a concession to the largely defeated Plaintiff, the court partially grants Plaintiff’s final discovery request.  Plaintiff sought the “complete personnel files” for certain claims handling supervising personnel involved in the claim.  As with the other requests, Defendant objected citing the “personal, confidential, private information” that these files held.  Significantly, the court recited that “‘confidential’ does not equate to ‘nondiscoverable’ or privileged.”  Thus, the court granted Plaintiff’s motion to compel such personnel files, although it concluded this grant by limiting it to information from the files that specifically pertains to the employees’ “background, qualifications, training and job performance” and explicitly excluded any “sensitive personal or medical information” regarding these individuals. By the end of its succinct seven-page opinion, the District Court for the District of Kansas handed down many valuable lessons for future parties engaged in discovery-based litigation.  Among them:  (1) The work product doctrine will not prevent production if litigation is reasonably anticipated; (2) Request documents in the form desired or risk a landslide of “unusable” documents; (3) Be careful, diligent, and precise in your word choice – both in your pleadings and your document requests; (4) Private/Confidential does not mean Privileged/Nondiscoverable. Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts where she earned her B.A. in English and Political Science.  She will receive her J.D. from Seton Hall University School of Law in 2015.  After graduation, Nicole will serve as a clerk to a trial judge of the Superior court of New Jersey in the Morris-Sussex Vicinage. 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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 Can Inadvertent Disclosure Constitute Waiver of Privilege? Factors To Ensure The Maintenance of Privilege

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

When Should a Party Inform its Adversary that it has Inadvertently Disclosed Privileged Information During Discovery in Order to maintain that Information’s Privileged Status? Certainly in Less Time than Three Months!

Please be very careful when turning over discovery to adversaries! Every reasonable precaution should be made to ensure that privileged information is not being turned over. Obviously, accidents do happen and no matter how careful a party may be, sometimes privileged information will slip by and be disclosed to the opposing party. However, in such an instance, do not wait three months to inform the opposing party about the error. Well, only if the disclosing party wants to keep the information privileged, of course! Franklin Square Associates has provided a blueprint for what not to do when privileged information has been inadvertently turned over. Suit has been brought against them by the Gloucester Township Housing Authority in a dispute over the availability of subsidized residential housing. Among the thousands of documents that Franklin Square turned over in discovery were two letters (amounting to three of the thirty-five hundred pages produced) between the Managing Agent of Franklin Square and his attorney. Defendant Shaun Donovan of the U.S. Department of Housing and Urban Development (HUD) brought a motion asking judge to declare that the letters were not covered by the attorney-client privilege, but that even if they were, the privilege has been waived due to their disclosure in discovery. Without question, the court said, the letters contained privileged information. They were communications between a lawyer and her client, in which legal advice was sought and offered. They represented the quintessential example of what is covered by the attorney-client privilege. So the issue here, then, was whether the privilege had been waived. To make this determination, the court analyzed the facts of the case through five factors the Third Circuit uses to decide whether a party’s disclosure has waived privilege: (1) the precautions taken to prevent inadvertent disclosure; (2) the quantity of inadvertent disclosures; (3) the extent of the disclosure; (4) the extent of any delay and the measures taken to rectify the disclosure; and (5) any overriding interests of justice. Regarding the first factor, the court noted that Franklin Square failed to set forth any precautions taken to avoid this inadvertent disclosure! They failed to produce a privilege log and failed to mark any documents as “confidential” or “privileged.” Franklin Square instead said that there were just too many documents to go through. If a party has resorted to using that as an excuse, it is very difficult to feel sympathy for them and the predicament they find themselves in. Parties must be more careful than this! The court found that this factor favored a finding of waiver. Regarding the second factor, the court noted that this current motion to declare the letters unprivileged concerns just three out of thirty-five hundred documents. Therefore, the inadvertent disclosure was de minimis in the grand scheme of things. This was another factor favoring waiver. Regarding the third factor, the court did not feel badly for Franklin Square in this situation because the production of these letters concerned clearly privileged information and yet Franklin Square did nothing to mark the documents as confidential or as communications between an attorney and her client. These letters warranted more scrutiny than that, and so due to the carelessness at play here, the court found this factor to be yet another in favor of a finding of waiver. Regarding the fourth factor, the court found that Franklin Square did not attempt to rectify the situation until more than three months after the inadvertent disclosure! Not only that, these same letters had been produced in a prior state court hearing, meaning these documents had now been disclosed twice! Clearly this favored a finding of waiver. Finally, regarding the fifth factor, the court did not find any overriding interests of justice here to warrant maintaining the privileged status of the documents despite the multiple errors committed by Franklin Square in this case. Therefore, the court held in favor of HUD, and declared that attorney-client privilege had been waived in regards to the letters. The takeaway here? Always, always, always take all reasonable precautions to ensure that privileged information is not being produced in discovery. Even if this information is somehow turned over, notify the opposing party right away to avoid waiving the privileged nature of those documents. Do not wait more than three months to do something about it! 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.

Can Attorney-Client Privilege Be Used As Both A Sword And A Shield? No, Not When Attorney-Client Privilege Is Being Used As A Litigation Strategy

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

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.

Colorado Supreme Court Remands Finding That Trial Court Didn’t Do Their Job By Failing To Actively Manage Discovery

How involved does a district court have to be in discovery issues?  This is the main issue that the Colorado Supreme Court tackled in this case.  The Court drew a firm line and interpretation on one of the state’s discovery rules and remanded to the district dourt so they could follow it. The plaintiff, DCP Midstream, LP brought a case for eleven breach of contract (among other claims) against the defendant, Anadarko Petroleum Corporation.   The two companies transport, gather, and process natural gas in Northeastern Colorado.  DCP Midstream transported the gas from wells and took them to be processed and sold.  DCP Midstream had contractual relationships, known as "gas purchase, gathering, and processing agreements" with a number of companies to carry this out. One of the companies that DCP Midstream did regular business with was Kerr-McGee Oil, which was acquired by Anadarko Petroleum.  It was then, according to the plaintiff, when the relationship soured.   DCP claims that Anadarko told Kerr-McGee to “transport and process natural gas in violation of DCP's contractual rights” and brought suit accordingly. DCP’s claims regarded eleven contracts specifically which covered about 900 wells.  DCP asked for document production using 58 requests.   These requests asked for Anadarko’s “complete contract file” for the thousands of wells that it operates as well as the title opinions for them.  Anadarko objected to many of these requests claiming that they were not relevant to the claims contained in the complaint and as such, outside the scope of discovery under Colorado Rules of Civil Procedure 26(b)(1).  Further, Anadarko claimed that the opinions asked for were privileged attorney-client communications but that claim won’t be addressed here. The trial court did not hear argument regarding Anadarko’s objections and merely granted DCP’s motion to compel.  Their written order read, “DCP was entitled to discovery that is or may become relevant and, because DCP's "breach [of contract] claim may expand and may ultimately encompass thousands of wells," DCP was entitled to discovery that may lead to more specific allegations…”” Anadarko petitioned the Supreme Court of Colorado for review. The Supreme Court found jurisdiction to take the case and discussed extensively the state rules, how the scope of discovery should be determined, and the role of the Court in all of it.  Specifically, the Court talked about the above-cited 26(b)(1) which granted parties as a matter of right, the ability to ask for discovery for anything that is not privileged that is “relevant to the claim or defense of any party.”  For good cause, the rule allows the court to permit a party more expansive discovery rights into "any matter relevant to the subject matter involved in the action." The distinction between the discovery allowed as a matter of right and that to be allowed for good cause was troubling to the Court.  The Court said that there was no easily explainable difference between what a “claim or defense” is versus what is “subject matter.”  Instead, the Court pointed to the advisory committee notes on the rule which advocated looking at the rule more practically.  The notes suggested that the Courts, when there is a discovery objection, determine the scope of discovery and tailor it to the “reasonable needs of the action.”  It is this approach that the Court adopted for the state of Colorado. The Court (and the state rules that it pointed to) also made it inescapably clear how vital the role of the trial court is in the discovery process.  Active judicial management is needed to decide scope of discovery questions in light of the action calls for and what is reasonable.  The trial court, in this case, did not make any findings on that question and instead just put through an order without any tailoring at all. The Supreme Court remanded the case to the trial court so they may make findings pursuant to their approach to the rule. Trial court judges of Colorado beware!  If you don’t take an active role in deciding discovery objections, the Supreme Court will just remand and you will have to look at it again, anyway.  Isn’t it just easier to manage your responsibility the first time? Julie will receive her J.D. from Seton Hall University School of Law, where she is serving as President of the Family Law Society and was a Student Attorney for the Center for Social Justice’s Family Law Clinic, in 2014. Prior to law school, she was a 2008 magna cum laude graduate of Syracuse University, where she earned a B.A. in History and a minor in Religion and Society. After law school, Julie will serve as a law clerk to a judge of the Superior Court of New Jersey.

Court Rules In Favor for Precision in Regards to Limited Search Terms Used for Screening Privileged Documents

Whoever thinks that the legal world does not involve math is proven wrong through the Special Master’s analysis in Dornoch Holdings Int’l, LLC v. Conagra Foods, Lamb Weston, Inc. The heart of the opinion involves a percentage breakdown of search terms and their correlation of precision in regard to privileged documents. In Dornoch, the defendants objected to the privilege log of documents for three reasons: 1) the documents on the privilege log, except for communications between the plaintiffs and their outside litigation counsel dated after March 22, 2010, have not been established by the plaintiffs to be privileged; 2) The privilege log was created using overly broad search terms and has not been substantively reviewed, thus, the log contains numerous non-privileged documents; and 3) Non-correspondence documents listed on the privilege log are not privileged. In response to this objection, the court allowed the Special Master to make a recommendation on these objections, specifically allowing the Special Master to review “a statistically significant number of randomly selected documents to confirm the accuracy of the screening method.” The privilege documents log was assembled using search terms created and limited by plaintiff’s counsels and an eDiscovery technology consulting firm. And so, the Special Master did as the Court requested and took a sampling from the log to determine the effectiveness of the screen’s search terms. The consulting firm determined that “1,740 documents would need to be human reviewed” to determine whether the log was effectively precise. The Special Master decided to review 1,813 documents just to ensure it was an effective review. After explaining that Idaho law regarding attorney-client privilege and work product doctrine apply, the Special Master reviewed the documents and determined that 1,249 were not privileged documents and 564 were privileged. The Special Master also went into much detail about the effectiveness of the specific search terms that were used. Specifically, the Special Master determined that 73 percent of the search terms were highly correlated to actual privileged documents. Additionally, the Special Master determined that “those terms which identified a correlation with actual privilege of 59 percent or greater, showed a strong correlation with privilege.” Once the Special Master completed this analysis, the Special Master recommended that the documents that fall below that 59 percent correlation should be released and not kept private. Then, the plaintiffs could also decide to conduct another review of the remaining privileged documents to figure out if more should be released. Finally, the Special Master noted that it does not matter whether documents are listed as “correspondence” or “non-correspondence” for them to be determined to be privilege or not. These documents should be reviewed just as the others. Overall, the Special Master recommended that the court sustain the first objection, and overrule the third objection. As to the second objection, the court recommended the following: “(1) Concur with the selection of a 59% or greater correlation of search term precision for a document to remain withheld as privileged; (2) Allow Defendants the opportunity to further challenge the assertion of privilege above that 59% threshold, if they so choose, by requesting that the Special Master conduct a further targeted review for privilege and release any non-privileged documents discovered. The Defendants will be responsible for cost of this further analysis, if requested; (3) Release the documents associated with the less precise terms that fall beneath the 59% correlation threshold and remove them from the privilege log; (4) Prior to that release, allow Plaintiffs the opportunity to conduct a privilege review of all or a portion of the population to be released and create a supplemental privilege log. The Plaintiffs will be responsible for cost of this further analysis, if Plaintiffs chose to conduct it.”

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