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Does Good Discovery Come to Those Who Wait?

Author: Luke IovineCase Citation: In re Fluoroquinolone Prods. Liab. Litig., 2016 WL 4045414 (D. Minn. 2016)Employer/Personnel Implicated: McKesson Corp; Drug ManufacturerseLesson Learned: Discovery should be proportional to the needs of a case. In considering the importance of the discovery issues at stake, courts should balance the burden or expense of the proposed discovery against its benefit.Tweet This: Discovery Disputes Over Defendant Fact Sheets California citizens (“Plaintiffs”) alleged that they developed peripheral neuropathy after using Cipro and other generic versions of the drug. Cipro was manufactured by many drug manufacturers, especially McKesson Corporation (“Defendant”). All of the complainants allege claims of fraud, negligent misrepresentation, and fraudulent concealment, and strict liability against McKesson for distributing the drug that Plaintiffs ingested. Following a meet-and-confer process, three disputes remained with regard to the proposed pretrial order addressing the Defendant Fact Sheet (“DFS”). The disputes were discussed in July of 2016 at a status conference and now this Court is tasked with ruling on each of the three disputes between the adverse parties. The primary disagreement between the parties was whether McKesson was required to search custodial files for each DFS, or whether they could limit their searches to existing databases and central repositories. Under the Federal Rules of Civil Procedure, “discovery should be proportional to the needs of the case, considering the importance of the issues at stake in the action, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” 26(b)(1). In this instance, the court determined that it would be a “significant burden” for McKesson to search custodial files for each DFS, rather than rely on the existing databases and central repositories. As part of its rationale, this Court emphasized how Plaintiffs needed to show more than “less-than-certain benefits” to require McKesson to undertake such a costly burden. However, McKesson, as well as the court, acknowledged that individual custodial-file searches may likely be warranted for a narrower group of cases at a later stage of the litigation. In addition, the court noted how “Plaintiffs [were] free to seek permission from the Court to engage in further discovery if the information available in these ‘structured databases’ turns out to be insufficient.” Secondarily, both parties disagreed over whether McKesson must provide the information requested by the DFS in “chart form” or whether they could merely provide and refer to documents containing the information. With respect to readability, a party has a duty to turn information over in a readable form. A party can also request information to be turned over in a particular form. Here, this Court determined that because the Plaintiff Fact Sheet (“PFS”) required Plaintiffs to complete “charts” rather than simply relying on attachments, Defendants must also turn over its information pertaining to DFS in “chart form.” Lastly, the parties disagreed whether McKesson was required to provide data pertaining to physician prescribing practices for antibiotics generally, rather than for the specific fluoroquinolones. This Court determined that while general prescribing practices may be relevant to this matter, the benefit for Plaintiffs is not “entirely clear” at this stage of litigation. The court held that the Defendants did not need to provide its prescribing practices beyond their particular fluoroquinolones practices. It seemed unnecessary to have Defendants provide prescribing data for all antibiotics. In conclusion, the Court ordered the parties to submit an updated version of the Pretrial Order on Defendant Fact Sheets within seven days after the conclusion of the hearing. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Is it electronic discovery if the Plaintiff already has what they are asking for?

Author: Rachel SmithCase Citation: Johnson v. Brennan, No. CV 4:16-02612, 2017 WL 5672692 (S.D. Tex. Nov. 27, 2017) Employee/Personnel/Employer Implicated: Employer and EmployeeeLesson Learned: A District Court dismissed the Plaintiff’s case for age discrimination against USPS, while also denying the request for sanctions when the documentation that was not provided by the Defendant was not in fact destroyed, and the Plaintiff was already in possession of those documents. In this case, a case originally about employment discrimination, the District Court dismissed the Plaintiff’s claims against the Defendant, USPS for failure to meet the standards. Plaintiff’s claims included age discrimination in the workplace and hostile work environment. Plaintiff also requested sanctions be issued to the Defendant for failure to produce specific e-mails to the Plaintiff in a timely manner, and for spoliation of evidence. The Court denied the request for sanctions because Rule 37(e) provides for sanctions if electronically stored information “is lost because a part failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery”. Certain sanctions also require a showing of “prejudice… from loss of information”. In this case, the e-mails were not destroyed, because once the Plaintiff requested sanctions, the Defendants produced the documents that were requested. Also important, the e-mails were such that both the Plaintiff and the Defendant were both parties to the e-mails, therefore both parties would have access to all of the e-mails as they were either sending or receiving them. This means that the e-mails that were not produced by the Defendant, were in fact in Plaintiff’s possession the entire time. The Court must follow the intentions of Rule 37(e) when deciding when to sanction a party in a matter. Here, because the e-mails were not material, or destroyed, and because the Plaintiff had them in her possession the entire time, the Court decided that sanctioned would not be issued. Rachel Smith is a Seton Hall University School of Law student, Class of 2018. She received her B.A in Women’s and Gender Studies from Rutgers University in 2010. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Gone but Not Forgotten

Author: Victoria FerenzCase Citation: Organik Kimya, San. ve Tic. A.S. v. ITC, 848 F.3d 994 (Fed. Cir. 2017)Employee/Personnel/Employer Implicated: EmployeeseLesson Learned: Once the investigation began, they had a duty to preserve all evidence relevant to the investigation. Acting in bad faith as it relates to preserving evidence may result in the most severe of sanctions. In Organik Kimya v ITC, Organic Kimya is appealing a decision that imposed sanctions against them for spoliation of evidence and entering a limited exclusion order against them. This case involved trade secrets regarding paint additives that increased the paint’s opacity. Dow, the market leader in supplying opaque polymers to paint manufacturers in the United States, has maintained their position through trade secret and patent protections. They claimed that the Organik Kimya opaque polymer products infringed Dow’s protections. During the investigation, the ITC found multiple counts of trade secret appropriation, spoliation of evidence, and severe bad faith. The characters in question include former Dow employees Dr. Dilip Nene, Dr. Guillermo Perez, and Leonard Strozzi. Dr. Dilip Nene Dr. Nene had engaged in various technical discussions with Organik Kimya, and when the investigation began, Organik Kimya attempted to purge all of their emails back and forth.  Dr. Nene also removed the hard drive from his personal computer, smashed it with a hammer, and threw it in the garbage. He testified that he did this so that the information on the drive could not be recovered. Additionally, he destroyed a bag full of zip drives. The ALJ found that Organik Kimya had the ability to control Dr. Nene’s acts and that they failed to act responsibly to preserve Dr. Nene’s information. This reckless disregard of their duty to preserve led the judge to believe that it was Organik Kimya’s deliberate plan to destroy the evidence. Dr. Guillermo Perez A few days after the investigation began, Organik Kimya began overwriting Dr. Perez’s laptop’s hard drop by copying the Program Files over 108 times. They also backdated the computer’s clock so that the metadata on the copied files would hide the fact that the overwriting had taken place so recently. Additionally, they used a program called WinHex to make sure that no deleted items could be recovered. Although Organik Kimya claimed that this was “simply maintenance,” the ALJ found that these actions made it impossible to know the exact volume and content of any previously recoverable data. Organik Kimya acted in bad faith by undertaking this massive spoliation of evidence on Dr. Perez’s computer. The ALJ found that the evidence was destroyed with the intent to impair Dow’s ability to prove its allegations of trade secret misappropriation. Leonard Strozzi Four days prior to a scheduled forensic examination of Strozzi’s computer, someone logged onto the computer and deleted over 2,000 files and folders. There was also evidence of numerous undisclosed and unproduced USB storage devices used on Strozzi’s computer. However, before any further investigations, Strozzi took his computer bag, with his computer and storage devices inside, and “accidentally” left it in the bathroom of a highway rest stop. The ALJ found that Organik Kimya had control over Strozzi’s laptop and that deletion of files evinces an attempt to cover-up wrongdoing. Additionally, the ALJ determined that this massive spoliation of evidence was done in an effort to prevent Dow from accessing evidence that would support its allegations, and constituted gross bad faith. Conclusion The ALJ determined, “Organik Kimya flouted its obligation to preserve evidence, deliberately destroyed evidence, and then actively attempted to deceive the undersigned as to what it had done. Given: (1) the grave damage Organik Kimya’s deliberate conduct potentially could have on the administration of justice; (2) the need to deter such egregious conduct in the future; and (3) the certain prejudice to Dow, only the strongest remedy is sufficient.” ALJ Order, 2014 WL 5768576 at 2. This willful, bad faith misconduct deprived Dow of its ability to pursue trade secret misappropriation claims. The Commission determined that the evidence demonstrated that it would have taken Organik Kimya 25 years to develop a commercial opaque polymer comparable to Dow’s one without using Dow’s trade secrets, and therefore found that a 25-year period would be an appropriate length for the exclusion order. Organik Kimya sought an opinion that would allow them to import products developed elsewhere without using Dow’s misappropriated trade secrets, and the Commission allowed this limited exclusion as long as they could prove that they developed the polymers without using any of Dow’s secrets. Such a severe penalty was imposed on Organik Kimya because of the severity of their mistakes. Once the investigation began, they had a duty to preserve all evidence relevant to the investigation. Instead, they wiped computers, deleted thousands of documents, and “lost” physical evidence. It was this gross bad faith that created such severe consequences, both for punishment and as a deterrent effect. Victoria Ferenz is a third year at Seton Hall University School of Law, focusing her studies in the area of Patent Law. She received her B.S. in BioMedical Science from Quinnipiac University. After graduation, Victoria will be clerking in the Superior Court of New Jersey. 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Preserve to Protect (Yourself)

Author: Nick Plinio Case Citation: EEOC v. GMRI, Inc., No. 15-20561 (S.D. Fla. Nov. 1, 2017) Implicated Personnel: Document custodian, EEOC, National restaurant chaineLesson Learned: It pays to institute thorough litigation holds early! When documents are lost in connection with a pending investigation, it becomes very difficult to avoid bad faith accusations and worse, a potential adverse inference, when potentially relevant ESI is deleted or lost from a server.Tweet This: A PSA for large corporations and every one utilizing ESI: Air on the side of over-inclusion when facing an investigation and deciding what to include in a litigation hold, it might just save your case. Background EEOC v. GMRI, Inc. stems from an investigation of prominent restaurant chain Seasons 52 (Seasons) for an alleged nationwide practice of intentional age discrimination in hiring procedures.  During the proceedings before the United States District Court for the Southern District of Florida, the EEOC made a motion seeking a series of harsh sanctions under Federal Rule of Civil Procedure 37 against Seasons based on a failure to preserve relevant job applications, interview booklets, and electronically stored information (ESI).  Seasons claimed that these documents were “missing” and unrecoverable, but the EEOC asserted that the information had actually been intentionally destroyed.  With regard to the ESI specifically, the EEOC sought to prevent Seasons from introducing evidence about the content of “lost” emails and other communications/records.  It also sought to introduce evidence that tended to show the intentional destruction of the information, which the EEOC argued, created the presumptive inference that the emails and other documents contained statements that Seasons had a preference for younger applicants. The real factual dispute here was whether Seasons, before the lawsuit against it was filed, ever knew that the scope of the EEOC’s investigation was “national.”  If so, depending on the circumstances of when and how Seasons obtained that knowledge, it could have been obligated to preserve ESI relevant to hiring practices in all of its restaurants nationwide.  Seasons argued that its obligation extended only to the records of the Coral Gables, Florida restaurant implicated in the original complaints giving rise to the EEOC’s investigation. On August 31, 2011, the EEOC claimed it issued a letter to Seasons, which notified the restaurant that the investigation against it had been expanded to consider its hiring practices around the country.  The following day, it requested a large amount of information and documents from a host of restaurants nationwide due to “an expansion of the case.”  Seasons disputed receipt of the first letter but not the second. This was ultimately a persuasive factor in the court holding that Seasons knew or should have known to preserve documents from the other restaurants pending the completion of the investigation.   The EEOC however, could not prevail on its motion for sanctions—and as a result, compel the inference that the missing ESI contained information adverse to Seasons—unless it demonstrated that the information was crucial to the case or that Seasons acted to intentionally deprive the EEOC of the information.  Ultimately, the court determined that the EEOC had not yet clearly established this point.  As such, the EEOC could not prevail on a presumptive inference-type sanction.  It could, however, argue to the jury that it may reach an adverse interest if, after the EEOC presented its evidence, it believed that Seasons intentionally destroyed the relevant ESI and other documents. E-Discovery Takeaway The takeaway here is to be smart about preservation!  And that Seasons faces some serious consequences for failing to do so, even if it disposed of the ESI inadvertently.  Companies today, especially nationwide entities with multiple locations, benefit immensely from the internet and cloud-based storage services.  This allows such companies to remain organized and effectively manage their affairs.  However, when amassing hundreds of documents, including emails, service records and the like, it can become difficult to know what to hold on to, and for how long.  While companies are certainly not expected to preserve every email or record of every transaction, there are some key steps that can be taken to ensure the right information is retained.  First, IMMEDIATELY upon learning that it has become the subject of an investigation a litigation hold should be initiated to preserve any and all even potentially relevant information to the alleged charge.  As it is the ethical obligation of the in-house attorney and the company to ensure that relevant information is not destroyed, action should be taken as promptly and as thoroughly as possible, even if that means preserving more than is necessary.  The general rule here is to “air on the side of caution,” even if the investigating party does not make clear exactly what needs to be preserved. Perhaps more obviously, a second lesson to take from GMRI is that intentional destruction of documents has severe implications.  As the court notes, a finding of bad faith on the part of the company can and certainly will lead to the inference that the information destroyed was harmful to its case.  As such, companies should be on notice that, simply because ESI can be easily erased and made unrecoverable, doesn’t mean its content won’t still come to light.  All that is necessary is that the opposition makes a showing of bad faith, which can then permit the adverse inference against the document custodian/company.  This should act as an even greater deterrent to carelessness and intentional destruction because, even if the content of ESI was irrelevant to the case, the jury might still be allowed to draw an adverse inference.  In other words, it is sometimes impossible to know for certain what the content of the ESI was, but if a showing of bad faith destruction is made, it won’t matter.  This should also prompt companies, especially those with multiple branches/locations whose operations are not directly supervised by company management, to educate personnel on how to comply with litigation holds and the dangers of destroying information. 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A Due Process Violation Does Not Always Occur if a Police Department Loses a Cell Phone’s Contents that Relate to a Criminal Prosecution

Author: Caiti DerenzeCase Citation: United States of America v. Peterson, 2017 WL 5709567 (W.D. Mo. 2017)Employee/Personnel/Employer Implicated: PersonneleLesson Learned: A police department does not have to take every precaution to ensure that an electronic device and its data are maintained in a manner that protects and preserves evidence, unless that evidence is exculpatory and material.Tweet This: An indictment against a defendant can be dismissed if lost electronic evidence was exculpatory and material. A criminal defendant has a high standard to meet to prove that a police department’s loss of electronic evidence amounts to a due process violation. In Joplin, Missouri, a defendant was indicted for using a cellular telephone network to “knowingly persuade, induce, and entice” a fifteen-year-old girl to engage in sexual activity with him. Evidence against the defendant came from the minor’s cellphone, which was handed over to Joplin’s police department by the minor’s parent. The department preserved that evidence by creating a physical image of the phone, which was stored on the department’s network storage device. Before the department returned the phone to the minor’s parent, it wiped the phone’s contents in accordance with the department’s policy at that time. A few months after the evidence was stored, the network storage device crashed accidentally. This crash caused the department to lose the image of the minor’s cell phone and images of other cell phones not involved in the case. Notably, the department had no back-up of the network storage device. The only data the department had after the crash was that which it hand-picked and printed out, including thumbnails of certain images and copies of the text messages between the minor and defendant. The defendant claimed that the loss of the cell phone’s content amounted to a due process violation and therefore, the indictment against him should be dismissed. He argued that the department failed to take “every precaution to ensure that the Device and its data w[ere] acquired and maintained in a manner that protects and preserved the evidence …  constiut[ing] a violation of the Defendant’s right to due process.” The court disagreed.  It explained that a court determines whether an indictment can be dismissed due to spoliation of the evidence through three separate tests. The first test is whether the lost evidence will “clearly exculpate the defendant” and if so whether the destruction of said evidence was done in bad faith. The court determined that the evidence contained on the cell phone did not have any exculpatory value, which meant the defendant failed to meet the first test. The second test is whether the destroyed evidence would have only “potentially exculpate[d] the defendant” and if so, whether the evidence was destroyed in bad faith. Again, the court determined that the evidence was not exculpatory. As to the bad faith, it held that bad faith only occurs when a police department purposefully destroys evidence to deprive the defendant of it. Here, the crashing of the network storage device and the wiping of the cell phone before returning it to the minor’s parents were only considered negligent destruction of evidence and did not meet the bad faith standard. Finally, the third test states, “if the government has destroyed evidence that has no exculpatory value whatsoever, there is no due process violation.” Since the court determined the lost evidence had no exculpatory value, there was no due process violation and the indictment against the defendant could not be dismissed. Caiti Derenze graduated from the College of the Holy Cross located in Worcester, Massachusetts where she earned a B.A. in Political Science in 2013. Prior to attending Seton Hall University School of Law, Caiti taught 5th grade and Kindergarten as a Teach for America corps member in Miami, Florida. After graduating law school in May 2018, Caiti will serve as a clerk to a judge in the Appellate Division of New Jersey.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

How Much Custodial Self-Selection is Too Much?

Author: Rachel SmithCase Citation: Mirmina v. Genpact, LLC, Civil Action No. 3:16-CV-00614 (D. Conn. July 27, 2017)Employee/Personnel/Employer Implicated: Employer and EmployeeeLesson Learned: A District Court denied the Plaintiff’s motion to compel for an additional discovery search, and found that the reliance of an employee’s self-selection of relevant documents was appropriate and sufficient under the circumstances. In this case, originally a case about employment discrimination, the Plaintiff filed a motion to compel additional searches for electronically stored information (ESI) by the Defendant. The basis for this motion was that the Plaintiff had concern that relevant documents were being withheld and were not produced in discovery. The Plaintiff’s counsel had no reason to believe this allegation, other than the fact that an employee was involved in self-selection of her relevant emails for production in discovery. The Defendant defended the validity of its approach by arguing that its in-house counsel: (1) issued a timely and detailed litigation hold to potential custodians of ESI, directing the preservation of any records and documents that might pertain to plaintiff’s claims; (2) gave instructions to the ESI custodians regarding searches and specific search parameters; (3) explained the importance of a thorough search to the ESI custodians; and (4) provided guidance when questions arose during the search. The Court accepted that an employee was involved in the selection of her relevant documents because of the close involvement of both in–house and outside counsel. The defendants also swore that all “materials have been disclosed”. Given that the Plaintiff did not give any supporting case law or evidence for its allegation, the Court dismissed the motion then as “mere speculation.” The Court for many reasons held that an additional search was not required and denied the plaintiff’s motion. This decision provides some protection to litigants who choose to rely on a custodian to retrieve relevant documents, allowing conservative e-discovery and litigation costs. However, parties who rely on self-selection must take appropriate precautions, such as closely working with counsel to ensure a thorough and complete search. This solution to rising litigation and e-discovery costs is not always advisable, particularly in situations where the custodian self-selecting has a strong and known incentive to no produce all relevant information. Rachel Smith is a Seton Hall University School of Law student, Class of 2018. She received her B.A in Women’s and Gender Studies from Rutgers University in 2010. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Make Sure to Salvage Your Salvage

Author: Michael Mondelli IIICase Citation: Below v. Yokohama Tire Corp., No. 15-cv-529-wmc, 2017 U.S. Dist. LEXIS 27280 (W.D. Wis. Feb. 27, 2017)Employee/Personnel/Employer Implicated: Plaintiffs or Plaintiffs’ agents/Plaintiffs’ CounseleLesson Learned: Attorneys should always ensure that clients are aware of the duty to preserve evidence in the wake of trial, and that attorneys must ensure, to the best of their abilities, that they keep track of the evidence.Tweet This: Make sure that you and your counsel work together and understand what evidence must be preserved and how it should be preserved. In this civil action, plaintiffs allege that defendants, including Yokohama Tire Manufacturing Virginia, LLC, are liable for money damages arising out of a rollover incident resulting from a tire tread separating from a tire on plaintiff Joshua J. Below's vehicle. Defendants filed a motion for relief due to spoliation of evidence due to the destruction of Below’s pickup truck at a salvage yard before the Plaintiffs filed this lawsuit. Defendants argue that the destruction of the truck impaired their ability to defend this lawsuit because they were unable to evaluate, inter alia, the suspension and steering systems, the seatbelt, the electronic data recorder, and the other three tires. Defendants base their motion on the assertion that Plaintiffs or their agents sold Below’s pickup truck to a salvage yard with the knowledge that it would be destroyed after inspecting it, without taking photographs and preserving the failed tire. On these grounds, Defendants move for a spoliation instruction. A spoliation instruction is only obtainable if the proponent shows an intentional act or bad faith by the party in possession of the destroyed evidence. See Bracey v. Grondin, 712 F.3d 1012, 1020 (7th Cir. 2013); Spesco, Inc. v. Gen. Elec. Co., 719 F.2d 233, 239 (7th Cir. 1983). Defendants assert that: (1) Below or his agent transferred the truck's title to the salvage yard; (2) plaintiffs did nothing to preserve the truck, despite having located it and inspected it themselves; and (3) plaintiffs failed to alert Yokohama that they intended to file a lawsuit against them, much less advise where the vehicle was being stored. Based on these actions, as well as the fact that Below’s received $22,000 in insurance proceeds from the sale of the truck, Defendants argue bad faith can be inferred on part of the Plaintiffs. Divergent from the assertions of the Defendants, Plaintiffs claim that Below’s mother did not contact plaintiffs’ counsel the day after the accident. Rather, Plaintiff’s counsel was retained roughly six weeks later. Furthermore, Plaintiffs' counsel represents that on the day counsel was retained, one of their investigators discovered that some components had already been removed from the truck, presumably by the salvage yard. Also, that day, Plaintiffs assert that the salvage yard agreed to the investigator's request to preserve the truck. Several months later, another of its investigators, followed-up with the salvage yard to ask them to continue to preserve the truck and to notify him about any storage charges. Despite these efforts, Plaintiffs' counsel later discovered in fall of 2015 that the truck had been destroyed nearly a year earlier. However, there is no explanation for how the Plaintiffs ended up with the allegedly defective tire, without preserving the other three, and why other steps were not taken to preserve similar evidence, including possible electronic evidence that must be preserved under Fed. R. Civ. P. 37(e). Possibly the most important question is why plaintiffs waited another two full years after the accident without notifying Yokohama of the availability of this piece of key evidence, despite knowing that it was the focus of plaintiffs' liability claims within months of the accident itself. These questions are all the more troubling considering Plaintiffs were represented by a sophisticated personal injury law firm, who were fully aware of their duty to maintain evidence relevant to likely litigation, to provide notice of a possible claim, and a notice of "the existence of evidence relevant to that claim." Am. Family Mut. Ins. Co. v. Golke, 2009 WI 81, 319 Wis. 2d 397, 768 N.W.2d 729, 732 (2009). Based on the record, Plaintiffs should have taken further steps to ensure that the key evidence discoverable from the truck was preserved. According to the court, failure to do so fell somewhere between negligence and gross negligence, but short of bad faith. Notwithstanding this, the court granted to Defendants’ motion to the extent that (1) defendants may explore how information from an inspection of Below's truck could have affected the experts' opinions at trial; and (2) plaintiffs may not argue that defendants or their experts failed to explore or prove something is prevented from doing so by plaintiffs' negligence in preserving evidence.  Michael Mondelli III received a B.A. in Political Science and Philosophy from Drew University in 2015. He will receive his J.D. from Seton Hall University School of Law in 2018. Present, Michael interns for the U.S. Trustee’s Office. After Graduation, Michael will clerk for a civil 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 the Work Product Privilege Attach in the Ordinary Course of Business?

Case Citation: Graham v. San Antonio Zoological Soc'y, Civil Action No. SA-15-CV-1054-XR, 2017 U.S. Dist. LEXIS 58740 (W.D. Tex. Apr. 18, 2017)Employer/Personnel Implicated: San Antonio Zoological Society (“the Zoo”)eLesson Learned: The work product doctrine only applies to materials assembled and created in anticipation of litigation. Further, records compiled at the request of counsel are not protected unless the documents or contents reveal insights into the mental processes of the attorney in the preparation of the case.Tweet This: The Zoo’s Privilege is Out of Luck James Graham and other private citizens (“Plaintiffs”) filed this suit against San Antonio Zoological Society (“the Zoo”/ “Defendants”) seeking injunctive relief against the Zoo under the Endangered Species Act (“ESA”) for harming and harassing an endangered elephant named Lucky. On February 5, 2016, Plaintiff’s served the Zoo with discovery requests including “all documents and communications relating to Lucky’s health and care, including her medical records, testing records, records of daily care, and related materials.” Defendant produced medical records only dating back two years, claiming it was all Plaintiffs needed and that it would be too burdensome to produce records beyond that time. However, the production included a February 11, 2016 email between the Zoo’s Director of Veterinary Care and the Health Center Manager for the Zoo with a 550-page document attached that consisted of nearly thirty-seven years worth of Lucky’s medical records from an electronic database. The Zoo argued that the production was created in direct response to counsel’s request made during a conference call and that counsel asked the Zoo to collect certain information relating to Lucky so that counsel could review the information with respect to the claims, defenses, and trial strategy. The Zoo adamantly believed the production to be privileged work product. Plaintiffs argued the production and e-mail attachment were not privileged because the records were kept in the ordinary course of business, tracked Lucky’s various injuries, ailments, results of veterinary checkups over the years, and were merely factual information. Plaintiff further argued that the production does not reveal any attorney thoughts or strategies. The court determined that the work product doctrine does not protect “materials assembled in the ordinary course of business.” While the court acknowledged that an attorney’s compilation of various documents may constitute an attorney’s opinion work product subject to protection, the court ultimately held that the “crucial factor” in determining whether privilege attaches to compiled documents at the request of counsel is whether the attorney’s selection of the documents or contents could “reveal or provide insights into the mental processes of the attorney in the analysis and preparation of the client’s case.” The court further concluded that neither the email nor the records themselves revealed the mental process of the Zoo’s attorney, but were mere veterinary records related to Lucky’s health care during his time at the Zoo, the central issue of the lawsuit.  To bolster its rationale, the court pointed to the fact that there was nothing in the e-mail referencing litigation, representation, or the Zoo’s counsel. In fact, there was no text in the email to which the records were attached, and it was only sent between Zoo employees. In addition, Rule 26(b)(1) allows a party’s access to any nonprivileged matter that is relevant to any party’s claim and that is proportional to the needs of the case. Here, the court deemed the medical records proportional and also noted how Plaintiffs were not under any obligation to retroactively return the production or limit the use of the information to a specified time period. Lastly, even if we were to assume the production was protected by the work product doctrine, the court determined the Zoo waived that privilege. The Zoo failed to show it took reasonable steps to prevent the disclosure of the report and, in turn, seek return of the production. Want to read more articles like this?  Sign up for our post notification newsletter, here.

Don’t Make the Same Mistake Twice

Author: Victoria FerenzCase Citation: Irth Solutions LLC v. Windstream Communications LLC, No. 2:16-cv-219 (S.D. Ohio Aug. 2, 2017)Employee/Personnel/Employer Implicated: In-house Counsel, litigation support staffeLesson Learned: Keep up-to-date and complete privilege logs, be extremely careful when preparing and providing documents to opposing counsel, and be sure that any clawback agreements are clear and complete while understanding that they may not survive a Rule 502 analysis. The case of Irth Solutions, LLC v. Windstream Communications, LLC explores attorney-client privilege waiver. Four weeks after the deadline for production of documents, defendants produced 2,200 pages of documents of which only 1,400 were in a readable format. Of these documents were 43 documents that defendants later realized were privileged. The defendants contacted plaintiff’s counsel and requested a clawback of those 43 documents. Plaintiff’s counsel sequestered the documents and did not show their client. Two months later, defendants again mistakenly produced these privileged documents to plaintiffs. Many mistakes were made by the defendants over the course of document production. Their mistakes began when they initially produced the 43 privileged documents. The privileged nature of these documents was missed because counsel did not prepare a privilege log at the time of production, and did not recognize that the name of defendants was displayed on many of the documents. The second mistake made by defendants was again producing the privileged documents only two months after the first incident. While defendants were responding to plaintiff’s request to make documents text-readable, they instructed litigation support staff to do the work. The support staff accessed, along with other documents, the 43 privileged documents and converted them. Defendants did not notice that the privileged documents were included with the rest.  The third mistake made by defendants was in the drafting of their clawback agreement. The defendants wrote the agreement in a way that they believed provided the parties with no duty to prevent disclosure, and although silent as to precautionary measures, also including inadvertent disclosures. The magistrate found that the 43 documents were privileged and inadvertently disclosed on both occasions. She then applied the Federal Rule of Evidence 502(b) to determine whether the defendants waived the privilege through these disclosures. The magistrate reviewed the three different approaches that courts have taken on this matter: “...(1) that a clawback arrangement... requires the return of inadvertently produced documents, regardless of the care taken by the producing party; (2) that where there is a protective order with a clawback provision, inadvertent production of a document does not constitute waiver unless the document production itself was completely reckless; and (3) that the requirements of Rule 502 can be superseded by a clawback agreement only to the extent such an order or agreement provides concrete directives regarding each prong of Rule 502.” Id. at 9-11. The magistrate found that waiver occurred under two of three different approaches. Under the second approach, she found that the defense counsel acted completely reckless by not recognizing the opposing counsel’s name on the documents, by producing the same exact documents a second time after the first incident, and by failing to provide privilege logs for documents withheld. Under the third approach, the magistrate found that the parties’ clawback agreement was cursory because the agreement did not define what constitutes inadvertence or precautionary measures that should be taken. The defense counsel did not take reasonable steps to prevent disclosure. “Rule 502 provides an important safeguard of the attorney-client privilege and if parties wish to remove that safeguard, their agreement must reflect such an understanding...the clawback agreement here lacked any language to support a finding that the parties came to an understanding that there would be no pre-production review.” Id. at 13. In the end, the Court rejected all of defendant’s arguments. There are many important lessons to learn from the mistakes made by defendant’s counsel in this case. Most importantly, it is crucial to keep up-to-date and complete privilege logs, to make sure that privileged documents remain protected. All staff, not only the attorneys, must be extremely careful when preparing and providing documents, to be sure that they are providing the correct ones. Lastly, clawback agreements must be clear and complete, but attorneys should be aware that they do not always hold up when viewed through the lens of Rule 502. Victoria Ferenz is a third year at Seton Hall University School of Law, focusing her studies in the area of Patent Law. She received her B.S. in BioMedical Science from Quinnipiac University. After graduation, Victoria will be clerking in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here.

How Far Can Discovery Really Go? Relevance and scope limitations on discovery in light of the Cosby litigation

Author: Nick Plinio Case Citations: Green v. Cosby, 192 F. Supp __ (D.Mass 2017); Green v. Cosby, 2017 U.S. Dist. LEXIS 55229 (D.Mass 2017) Employee/Personnel/Employer Implicated: Plaintiff’s Counsel, Owner of Stenograph Services Company, District Court Judge eLesson Learned: While documents might be more accessible in the age of e-discovery, under Federal Rule of Civil Procedure 26(b)(1) courts can and will quickly curtail requests for information that is irrelevant or does not relate to the claims or defenses in the case. Tweet This: Avoid the temptation, litigators! Just because a party might have thousands of documents stored electronically doesn’t mean a court will let you request them all. See Green v. Cosby (2017) In a line of cases infamous for bringing a wave of sexual assault litigation to Hollywood, I bet you didn’t think civil procedure would be the blog-worthy topic. Well, think again. Green v. Cosby, No. 3:14-cv-30211 (D. Mass. April 11, 2017), spawned from Constand v. Cosby, the 2005 case which accused comedian Bill Cosby of sexual assault, highlights the pitfalls of over-extensive discovery under Federal Rule of Civil Procedure 26. For litigators everywhere, especially in today’s world of mass e-discovery, Green can teach a lesson in seeking only relevant information. Background In 2005, Cosby gave a deposition in connection with the Constand case, stenographically recorded by KLW. Parts of this deposition were filed under seal with the court as exhibits. In 2006, the Constand case eventually settled and dismissed.  When the Green action commenced in 2015, Judge Robreno of the Massachusetts District Court ordered the 2005 exhibits unsealed as Cosby allegedly made damaging admissions during the deposition. Plaintiff’s counsel thereafter received a full transcript of the 2005 deposition--this is where the major procedural issue arose. Apparently, the owner of KLW independently determined that Judge Robreno’s unsealing order meant the entire deposition could be released, as opposed to only the portions filed under seal as exhibits in the Constand case. The result of this interpretation was to send copies of Cosby’s full deposition transcript not only to Plaintiff’s counsel but to numerous other outlets as well.  In early 2016, Cosby attempted to file a lawsuit against AMI, the company who hired KLW for the stenograph services, and Constand’s counsel, KLW and Constand’s lawyers acted improperly by disclosing or failing to prevent the disclosure of confidential information contained in the deposition as mandated in the Constand settlement agreement. This action was dismissed.  In the Green case, the claims and defenses of both parties center on defamation, invasion of privacy, intentional infliction of emotional distress, and tortious interference. However, Cosby issued a subpoena—presumably to “backdoor” in the claims from his failed action against AMI and Constand’s attorneys—which called for corporate testimony from KLW on numerous subjects including the circumstances surrounding the release of the 2005 deposition as well as the production of thirteen different categories of documents.          Federal Rule of Civil Procedure 26 FRCP 26(b)(2)(C)(iii) limits the frequency and extent of discovery allowed under the rules if a court determines that the proposed discovery is outside the scope permitted by Rule 26(b)(1).[i]  Rule 26(b)(1) provides that Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense or the proposed discovery outweighs its likely benefit.[ii] Evidence is relevant if it “moves the needle,” so to speak, toward making something more or less likely to have occurred.  The Holding The court in Green held that Cosby’s subpoena exceeded the scope of 26(b)(1) because the basis of KLW's decision to release the full Cosby deposition was not relevant to any of the claims or defenses in the case. Though the subpoena may have been relevant to Cosby’s earlier action against AMI, that action had long been dismissed. Cosby attempted to assert that his subpoena was relevant to showing that KLW engaged in misconduct, which the court may remedy pursuant to its equitable power.[iii] However, the court disposed of this argument reasoning that an affidavit filed by KLW sufficiently “allay[ed] any concerns . . . regarding alleged misconduct.”[iv] In the affidavit, KLW insisted that the decision to release the transcript was made independent of anyone outside the organization. Further, upon learning that the release of the full transcript was in dispute, KLW immediately sought guidance from Judge Robreno. Finally, even if the full deposition had not been released by KLW, Green’s counsel would have later obtained it in the ordinary course of discovery anyway. E-Discovery and Litigation Takeaways In the age of E-Discovery and mass-document production, concerns of relevancy and the allowable scope of discovery are hot-button issues. With computers, the internet, and various cloud services, lawyers can store and share thousands of documents at the press of a button. This, however, does not mean that courts will allow requests for irrelevant information just because a party might be able to produce it. Green is just one of many cases that highlight what can happen when parties to litigation try to go on a “wild goose chase” for information in the hundreds of thousands of files another party may have retained on its servers. As a general rule, if the information sought is not relevant to the claims or defenses asserted in the litigation, a court is not going to permit the discovery simply because it could revel some other prospective allegation (e.g. the misconduct by Constand’s lawyers and KLW). Green gives us another key takeaway: courts may be willing to give parties some leigh way when they make a mistake in their disclosure obligations if the party takes the necessary steps to correct the error. In Green, KLW was able to prove that it inadvertently released more than was required by the initial unsealing order because it attempted to remedy the situation by means apparently satisfactory to the court. As such, while litigators should always ensure that the services they use to store or collect documents/information correctly comply with court orders, an “over-inclusive” disclosure may not be fatal if concerns of misconduct can be reasonably dispelled.  Nick is a Seton Hall University School of Law student (Class of 2018), focuses his studies in the areas of general litigation, labor, employment, and sports law. [i] See Fed. R. Civ. P. 26(b)(2)(C)(iii). [ii] Fed. R. Civ. P. 26(b)(1). [iii] “[A] court may, within its discretion, exercise its inherent "equitable powers . . . over [its] own process, to prevent abuse, oppression, and injustice." Green v. Cosby, No. 3:14-cv-30211-MGM, 2017 U.S. Dist. LEXIS 55229, at *9 (D. Mass. Apr. 11, 2017) (quoting Gumbel v. Pitkin, 124 U.S. 131, 145-46, 8 S. Ct. 379, 31 L. Ed. 374 (1888)). [iv] Green v. Cosby, No. 3:14-cv-30211-MGM, 2017 U.S. Dist. LEXIS 55229, at *9 (D. Mass. Apr. 11, 2017) Want to read more articles like this?  Sign up for our post notification newsletter, here.

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