Production of Data

Deleted Documents? Improper Withholding of Evidence?

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.

Protection For Blogs Can Stop Discovery On Personal Blogger Information!

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

What Sanctions May a Court Impose On a Party That Fails to Comply With a Discovery Order?

The plaintiff and the defendants both sold Belly Bands, the plaintiff alleged that both Belly Bands were maternity band used to hold up pants. The plaintiff previously filed cases against the defendants for trademark infringement, patent infringement and unfair competition in 2006 and 2008, but those cases were later resolved by settlement agreements. In 2013, the plaintiff filed the recent action alleging that the defendants breached both settlement agreements by selling and advertising Belly Bands. During discovery, the defendants produced some electronically stored information (ESI). The parties contested the sufficiency of the defendants’ ESI production. On December 20, 2013, the court ordered the the defendant to produce all documents referring to customer comments or complaints regarding the defendants’ Belly Band and disclose its search methods within thirty days. On January 21, 2014, the defendants issued a declaration stating that they were in Europe when the court issued this order, and could not immediately comply. They also stated that they would need a computer expert to help them retrieve deleted customer e-mails. On January 3, 2014, the defendants retained a computer expert. On February 4, 2014, the defendant told the plaintiff that they found additional ESI, but did not produce the ESI at that time. The plaintiff filed a motion on February 10, 2014, for sanctions against the defendants for failure to comply with the court order within the thirty day timeframe, seeking: attorneys fees and costs associated with the defendants failure to comply; an order that the defendants disclose all hard drives and provide the plaintiff with access to all email accounts; and an order precluding the defendants “from opposing the plaintiff’s claim that the defendants’ Belly Bands were used to hold up [pants,] from opposing the plaintiff’s damage calculations, and from introducing any opposing evidence wit respect to the damages calculation.” At the time the motion was filed, the defendants still had not produced any additional ESI. Within two weeks after the motion was filed, the defendants produced over 1,000 new electronic documents. The court began its analysis by noting that courts may sanction a party for discovery abuses pursuant to the Federal Rules of Civil Procedure and the court’s inherent powers. Rule 37(b)(2)(C) states a court must order a party who failed to comply with a discovery order to pay the opposing party’s reasonable expenses associated with failure to comply, including attorney’s fees, “unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Sanctions are permissible regardless of the reason for the party’s noncompliance. Moreover, willfulness, fault, or bad faith are not required to impose Rule 37 sanctions, unless the sanction is dismissal. “However, in order for the sanction to comport with due process, the sanction imposed under Rule 37 must be specifically related to the particular claim which was at issue in the order to provide discovery.” Rule 37 sanctions should only be imposed when the party’s failure to comply prejudiced the nonoffending party. Furthermore, the court may impose three types of sanctions pursuant to its inherent powers specifically when there has been spoliation of evidence, including: “1) the court may instruct the jury that it may infer that evidence made unavailable by a party was unfavorable to that party; 2) a court can exclude witness testimony based on the spoliated evidence; and 3) the court can dismiss the claim of the party responsible for the spoliation.” “In determining what sanctions are appropriate in cases of spoliation, courts consider: 1) the degree of fault of the party who altered or destroyed the evidence; 2) the degree of prejudice suffered by the opposing party; and 3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party.” The chosen sanction should be “determined on a case-by-case- basis, and . . .commensurate to the spoliating party’s motive or degree of fault in destroying the evidence. First, the court held that the plaintiff was entitled to an award of monetary sanctions under Rule 37. the defendants failed to substantially justify why they couldn’t produce all responsive documents within the court ordered thirty day timeframe. The fact that the defendants were in Europe when the court issued the Order did constitute substantial justification to excuse their noncompliance. the defendant did not alert the court of their travel plans, request an extension, instruct their office manager to comply with the Order, or offer a reason as to why they did not immediately retain a computer expert to assist them in complying with the Order. Further, even once additional ESI was discovered, the defendants failed to produce said ESI for almost a month. Thus, the defendants’ actions prejudiced the plaintiff by forcing the plaintiffs to subpoena third parties for responsive documents, by preventing the completion of necessary depositions, and by having to file the instant motion. Moreover, the court held that the defendant must disclose its hard drives and provide the plaintiff with access to all its email accounts, subject to the defendants’ privileges or privacy interests. The court found that there was real danger that evidence on the the defendants’ hard drive had been destroyed. Further, the defendants made an array of false statements, such as claiming they produced all responsive documents when they in fact had not, and claiming that no documents had been deleted during the time of litigation when overwhelming evidence indicated otherwise. The court found that the plaintiff needed access to the defendants hard drive to prevent any more documents from being destroyed and ensure all responsive documents were produced. Additionally, based upon the same reasoning, the court granted the plaintiff access to all of the defendants’ email accounts, including Amazon, Facebook, Twitter and eBay accounts. However, the court held that the plaintiff failed to prove that the court should prohibit the defendants “from opposing the plaintiff’s claim that the defendants’ Belly Bands were used to hold up [pants,] from opposing the plaintiff’s damage calculations, and from introducing any opposing evidence wit respect to the damages calculation.” The court stated “preclusion remedies are a harsh remedy that should be imposed only in extreme circumstances.” Here, given that the plaintiff obtained documents from third parties and that the plaintiff may recover additional responsive ESI from the defendants’ harddrives and email accounts, the plaintiff cannot—at this time—demonstrate that the defendants’ conduct “impaired the plaintiff’s ability to go to trial or threatened to interfere with the rightful decision of the case.” However, the court denied the plaintiff’s request for preclusion sanctions without prejudice, thereby allowing the plaintiff to request preclusion sanctions should the plaintiff’s search of the defendants’ harddrives and email accounts reveal that the defendants knowingly destroyed evidence and that destruction threatened the plaintiff’s ability to secure a just outcome. Thus, when a court orders ESI production, parties would be wise to immediately comply with the order, or immediately inform the court of substantial reasons as to why compliance will be delayed.   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.

Take Discovery Seriously

The court first directed the defendant to produce the file of the plaintiff’s insurance claim in 2007, and needless to say, even in 2014 the defendant still had not produced everything.  Over one year later, the court granted the plaintiff’s first motion to compel.  When a flood of documents appeared at a deposition in 2011, discovery was reopened and the defendant was sanctioned.  Another motion to compel was granted in 2012, and this time it was for the deposition of a representative of the defendant who could testify about the efforts the defendant had taken to respond to discovery requests.  Yet another flood of documents appeared, and the representative deposed was unable to describe any of the defendant’s discovery efforts.  The plaintiff moved again for sanctions, which were granted in 2013.  At that time, the court also granted the plaintiff the costs and legal fees due to the late production of documents.  As relevant here, before the court in this motion was the assessment of legal fees and another production request.  The defendant did not want to produce more documents because by this time the defendant said the emails were on backup tapes that were purportedly not reasonably accessible because of undue burden or cost.  Can you guess what the court thought of that argument?  We’ll get to that in a moment. Without delving into specifics, the court painstakingly analyzed the plaintiff’s legal bill for the various motions, filings, etc. and awarded $81,997.60 in attorney’s fees.  Some of these costs were attributable to an IT specialist hired by the plaintiff that was to help the attorneys ask proper questions at the defendant’s representative’s deposition so they could ensure protocols were followed during discovery and that sufficient documentation was recovered (and if discovery was delayed because of an honest mistake, the explanation for that could be ascertained).  Even though the individual deposed actually had no knowledge of the defendant’s discovery practices, the defendants couldn’t escape paying for the IT specialist’s and attorney preparation time. On top of the nearly $82,000 awarded in legal fees, the defendant said it would cost $200,000 to recover the backup tapes containing emails.  While the actual cost is unclear, the defendant was ordered to turn over eight weeks of tapes, at its expense, of the thirteen individuals the plaintiff identified.  The judge even left the door open for the the plaintiff to get additional discovery if further exploration is necessary.  However, this isn’t the end. Sometimes, a single well-placed footnote can be unbelievably powerful.  This case illustrates just that, as the judge cleverly observed the defendant’s conduct as such: [c]onsistent with Hartford’s approach to discovery in this case, it has spent more time and resources challenging two entries totaling 1 hour than the amount requested by the plaintiff for those entries.  The court trusts that Hartford’s attorneys will notify their client how much they incurred in attorneys fees on these two entries. So please, take discovery seriously. 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.

What Should a Party Not Do When Compelled to Turn Over Computers after Having Already Admitted How Much Activity Took Place on Those Computers? Turn Over Computers That Show No Record of Activity

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.

When Responding to Document Requests, What Format Must the Documents Be Produced In? If the Requesting Party Specifies a Format, Documents Must Be Produced In the Format Specified

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

When Does A Party Have to Produce ESI In Native Format?

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.

Denial of Discovery Request: Can One Refuse to Produce Documents?

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.

Prophylactics Do Not Protect Pharmaceutical Companies From Data and Document Discovery Laws!

In this case, the plaintiff Nicole Baker sued Bayer Healthcare Pharmaceutical Inc., complaining that the Bayer product Mirena was not adequately accompanied by warnings of its side effects. Baker asked Bayer to produce databases that contains sales calls made by the marketing and sales department to physician’s offices. The sales calls notes also contained conversations between sales representatives and healthcare providers. Bayer argued that only the sales calls notes concerning Baker’s treating physician are relevant. Bayer also argued that producing all the sales calls notes are unduly burdensome and excessive in light of the needs of the case. Ultimately, the court found in favor of the plaintiff, and finds that the databases containing all sales calls must be produced due to their relevance to the current case. Federal Rule of Civil Procedure 26(b)(1) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” The information sought “need not be admissible at the trial” so long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” The crux of the plaintiff’s argument is that all the sales call notes, not just limited to those related to her physician, are relevant to her case because they would ascertain whether the pharmaceutical company is overpromoting the product Mirena. Overproduction would mean that there could be dilution or nullification of any warnings, thereby rendering the warnings inadequate. The plaintiff argued that the volume and substance of the sales calls notes establish whether there was a vigorous, aggressive sales campaign to the medical profession, leading to failure to heed written warnings. While this argument appears to be attenuated, it does fall under the standard of being reasonably calculated to lead to the discovery of admissible evidence. The court thought although it was a burden to the defendant, all of the sales calls notes are relevant to establishing if Bayer’s Mirena campaign was so pervasive that any doctor, including the plaintiff’s, would fail to pay attention to warnings about the product’s side effects.   Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of patent law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc.  Prior to law school, she graduated cum laude from UCLA and completed graduate work in biomedical science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this?  Sign up for our post notification newsletter, here

Consumer Credit Reporting Leads to Flurry of Discovery-Based Motion Practice

After requesting and receiving a consumer credit disclosure from defendant Experian, plaintiff Edward Dixon noticed that Experian was not reporting his payment history concerning his mortgage account held by Green Tree Servicing, LLC.  While Dixon admits that his mortgage account was previously held by GMAC Mortgage until the account was discharged in bankruptcy, he argued that his payment history with Green Tree should nevertheless have been reported by Experian because he continued to make mortgage payments to Green Tree post-bankruptcy. After filing suit against Experian alleging violations of the Fair Credit Reporting Act, Dixon served seventy Requests for Production and 40 topics for Experian’s Rule 30(b)(6) corporate witness.  While Experian asserts it has already produced 966 pages of discovery, Dixon asked the court to compel Experian to provide supplemental responses, specifically, in their native format as originally requested. After discussing Rule 34 and Rule 26 in explaining the dynamics of ESI-related discovery, the court noted that Dixon explicitly requested that Experian produce electronically stored information in the electronic form in which it is normally kept.  Dixon's request further defined the applicable terms of “electronically stored information” and “native format” so there would no confusion as to the nature of his discovery request.  In response, Experian produced the information in unsearchable PDF format but did not address ESI or object to Dixon’s ESI specifications.  Thus, the court ruled, “Experian waived any objection to the ESI format requested by Dixon pursuant to Rule 34(b)(1)(C).” This waiver by failure to object was perhaps Experian’s greatest oversight.  Not only did the court subsequently grant Dixon’s motion to compel as to his requests for discovery in native format, but the court made clear that “[i]t is not Dixon’s burden to now explain why the native format…would be more useful to him than the .pdfs.”  Even though Experian was not ordered to export the documents into a readable format such as Microsoft Word or Excel, Experian was still ordered to produce the documents in their requested native format. In addition to compelling documents in their native format, Dixon also asked the court to compel internal and external communications and written policies pertaining to how mortgage accounts of bankrupt consumers are and should be reported.  Experian argued that it has already produced a complete, text-searchable version of the 2012 Credit Reporting Resource Guide and argues that no further information need be produced.  Agreeing with Dixon, the court found that internal and external communications, “including those pertaining to how mortgage accounts of bankrupt consumers are and should be reported” are relevant to the policies included in the Guide and help established whether Experian’s procedures were reasonable.  Further, the court ordered Experian to, at least, conduct a search as to whether any communications or emails with Green Tree regarding Dixon’s dispute exist because such communications are relevant to Dixon’s claims.  In the event Experian found no communications exist, the court advised Experian to “state so in its amended responses.” The court then examined several of Dixon’s specific discovery requests.  Dixon requested that Experian produce “any and all name scans, snap shots, or other periodic backups of Plaintiff’s file,” presumably in an attempt to demonstrate the content of his credit file at various points in time.  Dixon argued such request went to the reasonableness of Experian’s policy that post-bankruptcy payments not be reported.  Experian countered, stating that such request is unduly burdensome, overly broad, neither relevant to the litigation, nor reasonably calculated to lead to the discovery of admissible evidence and vague and ambiguous as to the meaning of its terms.  The court ultimately agreed with Experian and held that “even if the discovery were relevant . . . the burden on Experian in compiling such ‘periodic backups’ that do not already exist outweigh Dixon’s need for the information” especially since the court ordered Experian to provide Dixon with documentation in native format.  The motion to compel this periodic backup information was denied. In ruling on Dixon’s motion to compel documents Dixon believes Experian is withholding, the court found little support that Experian was actually withholding documents and ruled that “Dixon’s suspicion that additional documents may exist is an insufficient basis on which to compel discovery.”  The court additionally declined to award any expenses to Dixon related to this motion. The court then concluded by reviewing Experian’s motion for a protective order based on Experian’s assertion that Dixon’s Rule 30(b)(6) deposition notice exceeds the scope of discovery permitted by Rule 26(b).  Experian requested protection from six of the thirty-one topics identified by Dixon that Experian believes are not relevant to this case.  The court granted protection for five of these six topics: protection from depositions on Experian’s periodic backups; protection from depositions on the exportation of consumer credit files into a readable format; protection from depositions regarding e-mail records; protection from depositions regarding a confidential, one-page document that produced in another lawsuit, and; protection from depositions concerning the identities of Experian representatives most knowledgeable regarding searching and positing queries to an internal database.  Many of these protections were granted on the basis that the court had already compelled Experian to produce documents in their native format, thus eliminating the need for excessive depositions aimed at acquiring the same or similar information. The court, however, denied the motion for protective order as to communications between Experian and Consumer Data Industry Association, the organization responsible for producing the 2012 Guide relied on by Experian for guidelines on credit reporting.  The court held that should Experian produce responsive communications, then “Dixon is entitled to pursue this topic in Rule 30(b)(6) deposition.” Based on the foregoing, the court granted in part and denied in part Dixon’s motion to compel.  Similarly, the court granted in part and denied in part Experian’s motion for a protective order and ordered Experian to make a Rule 30(b)(6) witness available to Dixon for deposition on the single topic if circumstances so demand.  The court concluded by extending the discovery deadline to allow the parties to comply with the court order. 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. Want to read more articles like this?  Sign up for our post notification newsletter, here.

  • Find an eLesson

  • Register for Post Notifications

    Subscribe to receive updates whenever a new eLesson is published.

    Manage Subscriptions
  • Let Us Blog Your Event!

    eLessons Learned is fast becoming the site of choice for employers, employees, judges, lawyers, and journalists who are interested in learning more about these areas without being intimidated by the complexity of the topic. In fact, organizations and event coordinators often feature eLessons Learned as their official eDiscovery blog. Fill out our simple registration form to have eLessons Learned be the official blog of your organization or event.

    Register Now
  • Recent Praise

    The blog takes a clever approach to [e-discovery]. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its ‘e-lesson’ — a suggestion on how to learn from the mistake and avoid it happening to you.

    Robert Ambrogi

    Legal Tech Blogger and creator of LawSites

    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg

    Click here to see more.
View in: Mobile | Standard