Production of Data

Want to Produce Documents? Produce Something Else First.

The plaintiff, Torrington Co., sought to challenge a final determination made by the International Trade Administration of the United States Department of Commerce. The case centered upon the discovery requests made by the plaintiff. The plaintiff argued that it was entitled to three things: 1) a computer tape of computer instructions, 2) a computer tape of SAS data sets, and 3) a hard copy for each file transmitted by tape. The plaintiff maintained that it was entitled to this discovery because it was part of the administrative record. The court disagreed. The court found that the computer tape of computer instructions, computer tape of the SAS data sets, and the hard copies were not a part of the administrative record because not only were they not “obtained by” or “presented to” the administrative agency (the International Trade Administration), but they did not even exist. If the materials did not exist (and never existed) they are clearly not part of the administrative record. In fact, the computer tapes and hard copies could only be created after the determination by the agency; they could not possibly be part of the administrative record at all. The defendant agreed to give the plaintiff microfilmed computer printouts which contained both the computer programming instructions and the SAS data sets. Note that these microfilmed computer printouts were not the same as computer tapes (which were requested by the plaintiff.) The court cited previous cases that established two principles. First, the court was not obliged to force a defendant to produce data in a format that was most convenient for a plaintiff. Second, the court should balance the plaintiff’s need for the specific type of information with the hardship placed upon the defendant. The court held that not only had plaintiff failed to show its need for the computer tapes, but that the defendant had shown that it would suffer “extreme hardship” if it were forced to produce the computer tapes. The plaintiff attempted to bolster its position by citing Daewoo v. United States, 10 CIT 754, 650 F. Supp. 1003, in which the court ordered that all computerized data be produced including “all further refined forms of electronic storage of the data involved.” However the court distinguished the case at hand from the facts in Daewoo by pointing out that in that case, the government did not demonstrate any kind of hardship. In the present case, the requested computer tapes did not exist and requiring the defendant to produce them would have been burdensome and expensive. The court notes that according to one source it would take 7,500 hours to create a computer tape containing 15,000 pages of the printout that was already created. By the account of one affidavit, it was estimated that it would take defendant’s department staff no less than a full two weeks to produce the computer tapes. Administrative agencies have many tasks and aim for efficiency – such a discovery request would doubtless be taxing on the agency’s resources. The plaintiff also claims that it would be equally burdened if it had to produce the tapes.] The court held that when the cost, burden, and time of creating the tapes is equal on both parties, then the burden of producing the tapes falls on the party making the request. Accordingly, the court held that the defendant did not have to make the computer tapes and that the parties were obliged to use the “more convenient, less expensive or less burdensome” computer printouts that were already in existence. What should have the plaintiff done in this scenario? It is unclear why the printouts were insufficient such that computer tapes were necessary. The plaintiff should have come prepared to show why production of the computer tapes would be more taxing on itself than on the defendant-agency. Rocco Seminerio is a Seton Hall University School of Law graduate (Class of 2014). Mr. Seminerio focused his studies in the areas of Estate Planning, Elder Law, and Health Law. He graduated from Seton Hall University in 2011 with a degree in Philosophy.

Does the Government Need a Warrant to Access Cell Phone Tracking Information? Third Circuit Says “No.”

Big Brother is always watching and listening.  If there’s one lesson to take away from the recent NSA scandals it’s that the government is not only capable of tracking your every digital move, but also acting on that capability.  Now, according to the Third Circuit, the government can use the broad language of the Stored Communications Act to force cell phone providers to turn over a criminal suspect’s phone’s historical location data. In a lengthy and drawn-out criminal investigation, the Third Circuit became the first federal court of appeals to decide a crucial issue that required balancing a cell phone user's privacy rights with a law enforcement agency’s needs to acquire potentially vital information.  The government attempted to use the Stored Communications Act to force a suspect's cell phone company to turnover cell site location information or CSLI.  Hoping to prevent an unjust and unwarranted intrusion or breach of a citizen's privacy expectations, the Electronic Frontier Foundation (EFF) filed a response in opposition to the government’s efforts.  The Third Circuit was then forced to determine whether or not the government could obtain this information without first establishing probable cause or acquiring a warrant. The information at issue in the matter is commonly kept by all phone companies and service providers as part of their routine business operations.  Every time a call is made via a cell phone, signals are transmitted via nearby cell phone towers.  These towers then collect and store data that can later be used to establish the general area where the individual was located when making the call at issue.  The information would not provide the exact location of the cell phone at the time of the call, but would instead allow the government to infer as to where the party where was located.  Even though this would seem like a minor distinction, in the eyes of the court it is incredibly important because it weakens any argument that the cell phone acts as a tracking device which would raise significant Fourth Amendment concerns under Supreme Court precedent. According to the exact language of the Stored Communications Act, a court can order the disclosure of this information if the government “offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or other records or other information sought, are relevant and material to an ongoing criminal investigation.”  18 U.S.C. § 2703.  The government argued that it met this burden because the information it was seeking was relevant and material to an investigation of narcotics trafficking and other violent crimes.  The EFF attempted to combat these claims by arguing that to obtain the information the government must obtain a warrant by establishing probable cause. Ultimately, however, the court held that the information was in fact obtainable by the government without a warrant or probable cause under the language of the Stored Communications Act.  According to the court, the Act’s language provided a specific test to determine whether an order granting the discovery of such information should be granted.  If Congress wanted to implement a warrant requirement, it could have specifically done so.  Instead, Congress chose the lesser standard of specific and articulable facts. The court, however, also went on to hold that the Act’s language actually granted a magistrate judge discretion as to whether or not to require a warrant showing probable cause.  Because the Act states that an order “may be issued” rather than requiring it, a judge deciding whether or not to allow access to such information could require a showing of probable cause. Additionally, the court established that a cell phone customer does not voluntarily share his or her location information with a service provider because the customer is probably unaware that their providers are in fact collecting and storing this historical information.     Although the Third Circuit’s holding is strictly limited to the collecting of historical cell phone location information, the decision ultimately has far-reaching consequences.  In the field of electronic discovery, privacy is an ongoing topic of debate, especially with the recent revelations of the massive amounts of data the government is in fact already collecting.  Because electronically stored information can provide a bevy of potentially vital information in easily manipulated formats, law enforcement agencies will continue to access it wherever possible.  Courts will continually be asked to balance individual privacy concerns with the broad policies of discovery. Jeffrey, a Seton Hall University School of Law graduate (Class of 2014), focused his studies primarily in the area of civil practice but has also completed significant coursework concerning the interplay between technology and the legal profession.  He was a cum laude graduate of the University of Connecticut in 2011, where he received a B.S. in Business Administration with a concentration in Entrepreneurial Management. 

Proportionality Applies to International Trade Disputes As Well

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

Employers—Got Resumes? Don’t Toss Them Just Yet

Plaintiff Erick Zayas joined with the Equal Employment Opportunity Commission (EEOC) to sue Ventura Corp. for employment discrimination on the basis of sex in 2007. In essence, Zavas complained that Ventura’s long-standing tradition of hiring women for the position he applied to was discriminatory. Furthermore, Zavas alleged that Ventura destroyed relevant evidence. In its answer, Ventura stated that the fact that no men have filed applications or have not met the position requirements did not support the plaintiffs’ assertion of discrimination. However, during limited discovery a list revealed that qualified men did in fact apply and accounted for 34.5 percent of qualified applicants. The central issue involved application materials received by Ventura. These included materials submitted by e-mail and hard copy resumes. The court first notes that spoliation is “the failure to preserve evidence that is relevant to pending or potential litigation.”  The duty to preserve relevant evidence arises once litigation is reasonably anticipated. The court noted that since Ventura was notified in 2007 that it was being charged with sexual discrimination, at that point Ventura should have reasonably anticipated litigation and was thus under the duty to preserve. Ventura attempted to make a statutory argument that resumes did not need to be preserved. The relevant statute, 29 CFR 1602.14 (see http://www.law.cornell.edu/cfr/text/29/1602.14), makes reference to “application forms” and “test papers.” Ventura argued that it required neither application forms nor test papers and that resumes were not mentioned. However, the court rejected this argument. The court noted that the statute also includes the language, “other records having to do with hiring.” The court ultimately held that resumes therefore clearly applied. Ventura’s Human Resource Analyst testified that certain documents were shredded or taken to a warehouse as a result of an office restructuring in 2009. Furthermore, the HR Analyst wasn’t able to find the said documents. The plaintiffs were therefore able to establish that Ventura either lost or destroyed the resumes between 2007 and 2010. Because Ventura was on notice since 2007, the disappearance of these documents constituted a violation of its duty to preserve relevant evidence. Soft copies of resumes delivered by e-mail were also lost in the same time period. In fact, th plaintiffs were able to produce a relevant e-mail to and from Ventura, while Ventura was not able to produce the very same e-mail. This e-mail alone and the fact that other relevant e-mails likely existed in the 2007-2010 period but were nowhere to be found, was sufficient to infer that Ventura likely destroyed them. The court held that sanctions were in order for Ventura’s violation of its duty to preserve. As a result of Ventura’s failure to preserve relevant evidence, the court imposed a “spoliation instruction” or adverse inference instruction. Such an instruction allows the trier of fact to infer that the content of the destroyed relevant evidence was damaging to Ventura’s case. Lesson learned? If you intentionally or unintentionally destroy relevant evidence while under a duty to preserve, an adverse inference instruction will likely bring swift defeat and sway the trier of fact against you. It’s best to preserve evidence and maintain your credibility with the court and trier of fact even with bad facts. Rocco Seminerio is a Seton Hall University School of Law graduate (Class of 2014). Mr. Seminerio focuses in the areas of Estate Planning, Elder Law, and Health Law. He graduated from Seton Hall University in 2011 with a degree in Philosophy. He also has an interest in the life sciences.

Greater Rights in Contract Mean Greater Obligations in Discovery

In Haskins v. First Am. Title Ins. Co., the court was asked whether a title insurance company (the "Insurer") is in "control" of documents that are in not in the Insurer's possession, but where the Insurer has the contractual right to direct those with possession to produce the documents.  The district court found in the affirmative, demonstrating that in some circumstances, the more extensive one's contractual rights, the more extensive its obligations in discovery. The plaintiffs sought class certification, which defined the class as all New Jersey consumers who paid premiums in excess of regulated title insurance refinance rates during the class period.  The plaintiffs alleged that the Insurer had overcharged for title insurance over a period of several years.  During discovery, plaintiffs sought certain documents in the possession of certain independent title agents, who were not employees of the Insurer, but with whom the Insurer had a contractual relationship.  The representative contracts made all documents "available for inspection and examination by [the Insurer] at any reasonable time."  The court inquired as to whether such documents are in the "control" of the Insurer, because pursuant to Fed. R. Civ. P. 34(a), a party may request another party to produce documents within that party's "possession, custody, or control."  Thus, if such documents were in the "control" of the Insurer, the plaintiffs could properly request that they be produced in discovery. The Insurer argued that it should not be required to produce documents in the physical possession of its agents because it does not possess or control the requested documents.  However, the court did not struggle to conclude that the Insurer's agency contracts plainly indicate that it has control over and access to the documents.  It drew this conclusion based on the premise that there is control if a party “has the legal right or ability to obtain the documents from another source upon demand.” Haskins demonstrates the potential for increased discovery obligations for those that have negotiated extensive rights in contract.  That is, the greater rights in contract, the potential for broader obligations in discovery.  While this factor may not drive the decision making for those negotiating contracts, contract parties should at least be aware of this consequence Adam L. Peterson 2014 graduate of Seton Hall University School of Law.  While at Seton Hall, Adam was a member of the Seton Hall Law Review and prior to law school Adam was an Environmental Analyst with the New York State Department of Environmental Conservation. 

Defendant’s “Hands-Off” Approach Insufficient; Sanctions Ordered

In this case, Peerless Industries, Inc.  sued defendants Crimson AV, LLC claiming patent infringement and design patent infringement arising out of defendant’s manufacture and sale of certain TV mounts. While not a defending party, Sycamore Manufacturing Co., Ltd. (“Sycamore”) is plaintiff's former supplier of these TV mounts and played a vital role in the alleged infringement. Sycamore is located in China, while Peerless and Crimson are both located in the United States. Plaintiffs filed two motions: (1) a motion to compel the deposition of the Sycamore’s president, Tony Jin, and (2) a renewed motion for sanctions, both of which were granted. It was also determined in a previous case that Jin exercised managerial control over both Sycamore and Crimson. Therefore, plaintiff satisfied that Mr. Jin is a managing agent of Crimson. The court stated, “Plaintiff must simply show ‘that there is at least a close question as to whether the witness is a managing agent.’ We already found this to be the case. Furthermore, Mr. Jin clearly satisfies the ‘paramount test,’ which is whether the individual identifies with the corporation's interests as opposed to an adversary's.” The court further ordered that without any showing of hardship, Jin’s deposition would have to take place in the United States and not in China. As for the plaintiff’s renewed motion for sanctions, this motion marked the third time the plaintiff filed a motion regarding the same set of documents. The plaintiff argued that at the deposition of Crimson’s managing director, “it became clear that defendant did not conduct a reasonable investigation regarding Sycamore’s document production or Sycamore’s document retention for purposes of this litigation.” The plaintiff then filed a renewed motion for sanctions. The defendant and Sycamore asserted that certain documents in Sycamore’s possession had been produced. The plaintiff noted, that defendants did not represent that all requested documents were produced or that they were searched for but no longer existed. The plaintiff argued that the defendant wanted to rely on the same declarations as opposed to issuing more specific responses. The court stated that since it had determined Jin was principal of both Crimson and Sycamore and that he exercised a considerable amount of control over both corporations, that he was able to obtain all relevant documents from Sycamore. However, the court found that defendant took a “back seat” approach and instead used a third-party vendor to collect the documents. Finding that neither Crimson nor Jin had apart in the process of obtaining the requested discovery, the court granted the plaintiff’s motion for sanctions. The court held that this “hands-off’ approach is insufficient. “Defendants cannot place the burden of compliance on an outside vendor and have no knowledge, or claim no control, over the process. Finally, the court held that defendants must show that they in fact searched for the requested documents and, if those documents no longer exist or cannot be located, they must specifically verify that it is they who cannot produce. Salim received his B.A. in Applied Communications, with a minor in Legal Studies, from Monmouth University. He received his J.D. from Seton Hall University School of Law in 2014. Salim’s past experiences include interning for a personal injury law firm prior to attending law school, as well as judicial internships in the Civil and Family Divisions. Currently, Salim is taking part in the Immigrants’ Rights/International Human Rights Clinic at Seton Hall Law.

Does a Litigation Hold Require the Preservation of Employee Text Messages? Big Problems in Little Packages: Lost Cell Phone Leads to Spoliation Sanctions

Big things can often come in small packages, especially in the field of eDiscovery.  In Christou v. Beatport, LLC, the defendants learned that something as small as a text message on a lost cell phone can lead to a bevy of headache-inducing preservation issues, even without proof that the lost texts actually contained relevant information. Originally, the two parties worked together to create Beatport, an online marketplace dedicated to promoting and selling electronic dance music.  When that relationship eventually fell apart, the plaintiff, a prominent nightclub owner, brought suit against Beatport and his former employee who, as a “talent buyer,” was responsible for attracting DJs to perform at the plaintiff’s venues.  The plaintiff claimed that since the falling-out, the former talent broker had been strong-arming DJs against performing at the plaintiff’s nightclubs by threatening to drop them from his now high-profile website. Soon after the case was filed, the plaintiff issued a litigation hold letter to the defendants seeking the preservation of electronically stored information.  Despite the fact that this letter specifically referenced text messages, the defendants made no effort whatsoever to preserve the text messages on the former employee’s cell phone.  Of course the phone was then lost, about a year and a half after the hold should have been instituted. The plaintiff sought spoliation sanctions in the form of an adverse jury instruction.  The defendants attempted to shelter themselves from punishment behind testimony that the former talent broker did not use texts to contact clients and no proof was offered that there was relevant evidence anywhere in the phone.  Thus, the defendants felt the plaintiff’s motion was entirely speculative. Given the disappearance of the phone, the court recognized that there was simply no way to know whether it contained any relevant evidence.  There was also no evidence that the defense had done their due diligence by reviewing the text messages to determine whether any were responsive to the plaintiff’s discovery requests. The court explained that spoliation sanctions are appropriate when “(1) a party has a duty to preserve evidence because it knew, or should have known that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.”  Here, there was no question that the defendants neglected their duties by failing to make any effort whatsoever to preserve the text messages. Because the loss of the phone was an accident, or at the most the result of negligence, an adverse jury instruction was unwarranted because it would be too harsh a punishment.   Instead, the court permitted the plaintiffs to present evidence at trial about the litigation hold and the defendant’s failure to abide by it.  Despite finding no foul play by the defendants, sanctions were necessary because “[a] commercial party represented by experienced and highly sophisticated counsel cannot disregard the duty to preserve potentially relevant documents when a case like this is filed.” The previous sentence best sums up the defendants’ actions.  They completely shirked all responsibility by failing to turn over the requested text messages or securing the phone itself.  Even though the phone was lost accidentally, spoliation sanctions were warranted because of the defendants’ complete disregard of their preservation duties.  The time and money spent belaboring this eDiscovery dispute could have  been completely avoided if the defendants simply preserved all of its electronically stored information, especially those documents specifically mentioned in a litigation hold.  Instead, the defendants suffered what probably turned out to be significant financial consequences fighting the motion and were left to combat incredibly damaging evidence at trial. Jeffrey, a Seton Hall University School of Law graduate (Class of 2014), focused his studies primarily in the area of civil practice but has also completed significant coursework concerning the interplay between technology and the legal profession.  He was a cum laude graduate of the University of Connecticut in 2011, where he received a B.S. in Business Administration with a concentration in Entrepreneurial Management. 

Movin’ On Over: Shifting Burdens and Costs

The defendants in Conn. Gen. Life Ins. Co. v. Scheib objected to five of the plaintiff’s Requests for Production of Documents (“RFPs”) because they would be unduly burdensome to produce. Thus, the court allowed the defense counsel to come forth with evidence to prove that the production of those documents, which consisted of 219 gigabytes of 19 different e-mail accounts.  The court determined that such production would be unduly burdensome. Counsel for the defendants did indeed file a Supplemental Briefing Regarding Cost of E-Mail Production indicating that it would cost over $121,000 to index, filter, and process the data. In this case the plaintiff’s complete claim totaled $119,515.49. In analyzing the defendants' proof against production, the court used Federal Rule of Civil Procedure 26(b)(1), which states that a court can limit discovery of relevant material if the discovery sought is unreasonably cumulative, obtainable from another source that is more convenient, less burdensome, or less expensive, or the burden or expense of the proposed discovery outweighs the likely benefit. The party objecting to the discovery request has the burden of proving why the requested discovery should not be permitted. But, if the party meets that burden, the burden then shifts to the original requesting party to show that the information is relevant and necessary for the case. The court also goes through the steps of analysis of determining whether a party meets the burden of proof. The first inquiry is to determine the benefits derived from the documents requested, specifically what relevant information will become available and the value of that information in resolving issues in the case. Then, those benefits should be compared against the cost of the production of the documents. Additionally, the court can deny the discovery request if the court finds there is a likelihood that the benefits of the requested discovery would be outweighed by the burden or expenses imposed by the proposed discovery. The court here also noted that cost shifting is a possibility when the documents are found to be burdensome to one party, but the other party feels they are necessary for the case. So a court could determine that parties either need to share the costs of a discovery request, or that a proposing party must take over costs for the request. The court found the defendants provided enough proof that the five RFPs were unduly burdensome to produce. The costs, tasks, and outside firms that would need to hired all combined convinced the court that it outweighed the benefit that the plaintiff would get out of the documents. Additionally, the court noted the lower stake of the litigation and the already provided documents that hit many of the relevant matters at hand in the case. The court also allowed the plaintiff to fund the retrieval of the information requested in those five RFPs if desired: “If Plaintiff believes that this information is important to its case, then Plaintiff can perform its own cost-benefit analysis and determine whether it wants to fund the discovery.” Overall, Scheib teaches us that once a party gets past the heavy burden of proving that production is burdensome, then all burden and costs could easily shift to that original requesting party.

Comply With Discovery, Or Pay The Price

While the practice of law, by nature, involves two parties facing off, there is no reason to make the job more difficult than it needs to be. The rules that govern court proceedings are in place to encourage cooperation between the parties and ensure that things “run smoothly.” When one party fails to abide by these rules, sanctions may be necessary. In Branhaven, the defendant’s counsel sought to prohibit the plaintiffs from using certain documents that were the product of a large last minute “document dump,” and award the defendants attorney’s fees and costs as a result of said production. The defendants also claimed that they were entitled to fees based on a Federal Rule 26(g) violation, in that plaintiff’s counsel had incorrectly certified by signing a response to defendants document requests on March 21 that such responses were “to the best of [his or her] knowledge, information and belief formed after reasonable inquiry.” Id. at 389. The defendants also claimed that counsel for the plaintiffs did not make reasonable efforts to ensure that the client has provided all the information and documents available that are responsive to the discovery demand. Additionally, for each request, the plaintiffs responded by stating that they would make the documents available at a mutually convenient time. In order to understand the egregious nature of the plaintiff’s conduct, we must look at the timeline of events. On January 31, 2012, requests were served on the plaintiffs, at which point its counsel claimed to have sent these requests to the client. On March 16, 2012, the plaintiff’s counsel claimed that the plaintiff had yet to be provided with responses.  The plaintiff’s counsel told the defendant’s counsel that they would be made available at a mutually agreeable time. The record reflects no action was taken until June. On June 14, 2012, the plaintiff’s counsel stated that the client had yet been provided any documents for production. The plaintiff assembled responsive pleadings based on that documents within the firms possession and sent same to the defendants. This amounted to about 388 pages in total. On July 20, merely days before depositions of the client were to begin, the plaintiff produced 112,106 pages apparently from overlooked e-mail servers and laptops. The plaintiff defend this conduct by stating that their servers were purchased as part of an asset sale and that passwords were not readily available, as the preference was to use in house IT staff prior to outsourcing. The court did not buy any of the plaintiff’s arguments stating that the plaintiff waited about five months prior to seeking the assistance of outside IT support. While a one month delay may have been reasonable, five months was not. Before one initiates suit, one should prepare for discovery as they would be subject to demands. The March 21 certification was made prior to any investigation by counsel that eventually turned up over 100,000 pages of documents. Therefore, the lack of access on the defendants stemming from the plaintiff’s conduct was punishable through attorney’s fees for the time spent converting the documents to a reviewable format as well as the time spent drafting and prosecuting for this motion for sanctions.

eDiscovery Expertise: Is Knowing Too Much A Ground For Judicial Recusal?

Just like TNT, the Second Circuit sure knows drama.  After years of protracted litigation, the Second Circuit finally put an end to an attempt to recuse a judge for knowing too much about eDiscovery and predictive coding. On April 10, 2013, in an incredibly brief order most likely meant to send a message deeper than its two sentences, a Second Circuit Judge denied a request for the recusal of Judge Andrew J. Peck from an ongoing employment discrimination case.  According to Judge Jane A. Restani, “Petitioners have not ‘clearly and indisputably demonstrate[d] that [Magistrate Judge Peck] abused [his] discretion’ in denying their court recusal motion… or that the district court erred in overruling their objection to that decision.” The contentious attempts to recuse Judge Peck stemmed from a discovery dispute after Judge Peck ordered the parties to use a method of predictive coding during discovery.  Although the parties seemed to agree that predictive coding should be used, they could not agree on the methods of predictive coding that would be implemented.  The plaintiffs believed that Judge Peck favored the defendants in his order, and therefore they moved to recuse the judge because of his established history with eDiscovery and more specifically, his history of actively advocating predictive coding. Judge Peck has a long history of participating in eDiscovery conferences  and was considered one of the Court’s “experts in e-discovery.”  National Day Laborer Organizing Netwrok v. U.S. Immigration and Customs Enforcement Agency, 2012 WL 2878130, 11 (S.D.N.Y. 2012).  Judge Peck was even involved in one of the first cases to order the discovery of electronic data.  Atlantic-Monopoly, Inc. v. Hasbro, Inc., 958 F.Supp 895 (S.D.N.Y. 1995). Despite the strong undertones of the order’s brevity, the plaintiffs continued to fight this seemingly uphill battle and later filed a cert petition to the Supreme Court. Rather than attacking Judge Peck’s background and connections to the eDiscovery community, the plaintiffs in this case should have instead accepted that judges need to actively participate in conferences and seminars to better understand the technology implicated in eDiscovery.  Just as attorneys can no longer ignore the ramifications of eDiscovery, judges too must enhance their knowledge to further develop this complicated area of law and readily adapt it to continually changing technology.  Judges should not be punished or accused of bias for engaging in programs geared towards teaching them about technology and its implications on eDiscovery.  If this were at all all permitted, judges would be afraid to participate in seminars and review panels, which would stagnate the development of the law, a process that is already far-behind the rapid progress experienced by technology. Jeffrey, a Seton Hall University School of Law graduate (Class of 2014), focused his studies primarily in the area of civil practice but also completed significant coursework concerning the interplay between technology and the legal profession.  He was a cum laude graduate of the University of Connecticut in 2011, where he received a B.S. in Business Administration with a concentration in Entrepreneurial Management.