Authored By: Gina Barbieri

Citation: Rubin v. Alamo Rent-A-Car, 593 N.Y.S. 2d 284 (2nd Dept. 1993)

Employee/Employer Implicated: Owner/Executive, Employee, Patient

e-Lesson Learned: Nonmedical information, not related to the diagnosis or treatment of patients is not protected under the physician-patient privilege in N.Y. C.P.L.R. 4504(a)

Tweet This: How dare that judge order you to incriminate yourself and pay for it! You shouldn’t have to pay for it...

In most personal injury cases it is not unusual for documents to be granted a protective order based upon physician-patient privilege. However, the courts are reluctant to offer protection of materials, which are key to the defense of a lawsuit. This is particularly true when parties to litigation are attempting to claim privilege for documents that would not naturally fall under that protection. The court is weary of medical professionals who abuse this privilege for their own financial gain. Sindey Rubin and his Wife Lucille Munion, appealed an order from the Supreme Court of Nassau County which directed them to release their medical practice’s financial records to opposing counsel. Mr. Rubin alleged he was struck and seriously injured by a vehicle rented from the defendant, Alamo Rent-A-Car. After initiating a lawsuit to recover for his personal injury, Rubin amended his complaint to include his wife as a party to the suit and to include damages for loss of business income as a second cause of action.

Authored By: Drew Manary

Citation: Radian Asset Assurance, Inc. v. College of Christian Brothers of New Mexico (2010).

Employee/Employer Implicated: Plaintiff (Radian), defendant (College of Christian Brothers of New Mexico) and subsequent owner of defendant’s assets, Laureate Education, Inc.

e-Lesson Learned: If a defendant is compelled to produce unreviewed ESI, defendant shall have to pay for production but plaintiff shall pay for review. Additionally, if privileged information is transferred inadvertently from defendant to plaintiff, the defendant has burden of proving the information was privileged.

Tweet This: Forcing D's to pay for ct-ordered production isn't unreasonable, nor making them est. the inadvertent transf of privl. information

Radian initially filed suit against College of Christian Brothers in September 2009. Two days the filing, defendant (“College”) sold its assets to Laureate Education. As early as March 2010, College subpoenaed Laureate Education for materials obtained in the sale. In August 2010, College received 135 hard drives, 52 backup tapes, and an additional hard drive with information from Laureate Education’s current server. Radian and College had been to court several times over ESI. In September 2010, the Court ordered that College search and produce email from certain tape backups as well as producing 1,219 files Radian had assessed as relevant from Laureate Education’s current hard drive. The dispute in the present matter is whether College should be forced to restore the tape backups and review them at their own expense and whether doing otherwise constitutes unreasonable cost-shifting. Radian makes five arguments in support of this proposition.

Authored By: M.J.R.

Citation: Jannx Medical Systems, Inc. v. Methodist Hospitals, Inc., 2010 WL 4789275 (N.D. Ind., Nov. 17, 2010)

Employee/Employer Implicated: Outside Counsel, In-house Counsel, Senior Management, information technology manager

e-Lesson Learned: Discoverable data must be produced in a reasonably usable form in which it is ordinarily maintained and not in a format more difficult for the requesting party to use in litigation.

Tweet This: Indiana Court hands down a harsh punishment for shady electronic discovery practices!

Not only was Jannx scolded by the District Court on three separate issues, they are now responsible for significant legal fees, and lost a motion to protect their own data. It’s safe to say the Indiana District Court was not impressed with the Jannx legal team. Basically, this case involves a dispute over pre-trial discovery motions between the plaintiff, Jannx Medical Systems and defendants, Methodist Hospital, Crothall Healthcare, Inc., and Propoco Professional Services. The Court issued an opinion and order on Defendant’s motion to get Jannx to comply with electronic discovery and Jannx’s motion to withhold electronic data from discovery by reason of trade secrets, etc.

Authored By: MAH

Citation: Newman v. Borders, Inc., 257 F.R.D. 1 (D.D.C. 2009).

Employee/Employer Implicated: Large Bookstore, Outside Counsel

e-Lesson Learned: Rule 30(b)(6) requests must specify whether electronically stored information retention policies will be within the scope of the deposition testimony sought.

Tweet This: Ask and they shall answer—a deposition notice should define the scope of testimony! --> http://ellblog.com/?p=2101

In Newman v. Borders, Inc., the United States District Court for the District of Columbia held that because plaintiff failed to notify defendant in a deposition notice that questions in a deposition would pertain to the defendant book’s email policies (or any electronically stored information (ESI) in general), plaintiff was not entitled to take further depositions despite the designated witness’s lack of knowledge regarding that subject matter. However, the Court further held that due to both parties’ failures to try hard enough to resolve the dispute and because discovery regarding document retention policies is a legitimate request, defendant was nonetheless ordered to answer specific questions posed by the Court regarding its email retention policies. The lesson here is twofold: If you are going to depose witnesses regarding ESI, you must put the other party on notice of the scope of the deposition testimony being sought, or risk losing the opportunity to conduct further depositions. But regardless of whether you are the party who asks or the party who answers, you must be sure to make every reasonable effort to resolve discovery disputes.

Authored By: John Chao

Citation: High Voltage Beverages, LLC v. The Coca-Cola Company, 2009 U.S. Dist. Lexis 88259 (W.D.N.C. Sept. 8, 2009)

Employee/Employer Implicated: Counsel, Plaintiffs, Defendants

e-Lesson Learned: The proportionality standard of FRCP Rule 26 governs discovery requests, including e-discovery.

Tweet This: eDiscovery has to follow discovery rules too --> http://ellblog.com/?p=2082

Just because e-discovery is involved does not mean we can disregard the rules applied to traditional discovery. While we must adapt the way we approach discovery because of advancing technology and the decline of the paper-based world, we must not forget that the spirit behind the rules of discovery apply to all discovery, including e-discovery. In High Voltage, the plaintiff filed a motion to compel the defendant to search for alternative sources beyond the initial production of documents for the selection of the VAULT mark. This would involve having the defendant review an additional 1.5 million pages of documents (17 gigabytes) beyond the 1.7 million pages already produced to the plaintiff.

Authored By: Francis M. Giantomasi

Citation: Heriot v. Byrne, 2009 WL 742769 (N.D. Ill., March 20, 2009) T.A. Ahern Contrs. Corp. v. Dormitory Auth. of State of New York, 2009 NY Slip Op 29125, 1 (N.Y. Sup. Ct. 2009)

Employee/Employer Implicated: Independent electronic vendors

e-Lesson Learned: An independently run eDiscovery project performed by qualified and competent vendors can be useful when there’s “loads” of documents to sift through. However, be careful because their mistakes become YOUR mistakes and may result in costing YOU.

Tweet This: Pros & cons of using an independent vendor to solve your eDiscovery woes --> http://ellblog.com/?p=2046

Suppose you’ve got a business. Not just any business, however, but a state-of-the-art business. Not necessarily a business that sells state-of-the-art products or services, but a business that you run in a state-of-the-art manner. Instead of carrying briefcases full of notes, you’ve got compact flash cards full of data. You don’t even remember the cost of a first-class stamp because all of your correspondence is done by email. You don’t have boxes and drawers full of hard files around the office because you’ve got everything stored and backed-up on hard drives and servers. You don’t have a calendar on your desk because you’ve got your daily schedule synched to the Smartphone that never leaves your side. You use every possible gadget to make sure that you are doing everything in the most technologically advanced and efficient way possible. Now, think to yourself: What happens one day when your company winds up on the wrong end of a lawsuit? Perhaps even a completely bogus, frivolous lawsuit. Even if you know that you’ll end up victorious in the end, you might find yourself bogged down in an eDiscovery quagmire once you have to turn over all of your “documents” during discovery.

Authored By: Ken e-Bloggins

Citation: Optowave Co., Ltd v. Nikitin, No. 6:05-cv-1083-Orl-22DAB (D. Fla. Filed Nov. 7, 2006)

Employee/Employer Implicated: Owner/Executives

e-Lesson Learned: After being placed on notice of a possible lawsuit, don’t destroy potentially relevant evidence by reformatting employee hard drives.

Tweet This: Holding off on wiping the hard drives of key document custodians till after the big case is over is a good idea http://ellblog.com/?p=1990

Tech-savvy business owner Dmitri Nikitin received a judicial tongue-lashing and an adverse inference instruction after he destroyed emails potentially relevant to a pending lawsuit brought by a Korean corporation. Not buying Nikitin’s “hackers” defense, the Court said that Plaintiff Optowave was entitled to an adverse jury instruction at trial against Nikitin’s company Precision Technology Group. “This sanction,” the Judge wrote, “will serve to cure the unacceptable actions of Nikitin, while allowing the case to be decided on the merits.”

Authored By: Al Cooley

Citation: Cason-Merenda v. Detroit Medical Center, 2008 WL 2714239 (E.D. Mich. 2008)

Employee/Employer Implicated: Outside Counsel

e-Lesson Learned: The objective of Fed.R.Civ.P. 26(b)(2)(B) is the avoidance of undue burden or cost. A party who first suffers an expense and then seeks contribution and relief from the court may find little sympathy where it has failed to make timely a timely application for protection from the court.

Tweet This: File a motion for protective order on time and in advance of suffering an undue burden or cost! -->http://ellblog.com/?p=1986

Pay close attention to the rules! Failure to understand the purpose of the rules, as well as failure to comply with motion timelines, could cost your client the opportunity to be relieved of undue discovery costs. This is what happened to the defendant in Cason-Merenda v. Detroit Medical Center. In Cason-Merenda v. Detroit Medical Center, defendant filed a Motion for Protective Order in an attempt to require the plaintiff to pay 50% of its third-party vendor electronic discovery costs. The defendant relied on Fed.R.Civ.P. 26(b)(2)(B), which states that “[o]n motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.” After the producing party shows that the information is not reasonably accessible, a court then has the ability to apportion costs between the two parties.

Authored By: eLearned

Citation: Bray & Gillespie Management LLC v. Lexington Insurance Co., 2009 WL 2407754 (M.D. Fl. 2009)

Employee/Employer Implicated: Outside Counsel, Senior Management, In-house Legal Assistant

e-Lesson Learned: Failure to produce Discovery is bad; violating court orders is worse; being sanctioned for both is the worst.

Tweet This: Don’t Throw eDiscovery Rocks If You Live In A Digital Glass House --> http://ellblog.com/?p=1980

Fool me once, shame on you. Fool me twice, more shame on you. Fool me three times and you are in some hot water! Regardless of whether you are (or represent) the plaintiff or the defendant, your discovery obligations are the same: Absent a valid, court-sanctioned objection, you must comply with your adversary’s discovery demands. While electronically stored information (ESI) may be a rather esoteric concept for many of us (perhaps most), in the eyes of the law and the court, ESI is just as real as traditional paper documents; and one’s failure to search for and disclose ESI in a timely manner could lead to big problems for an attorney and the client. In one case, it may have cost one company $25 million.

Authored By: Evan Rosenberg

Citation: Preferred Care Partners Holding v. Humana, 2009 WL 982460 (S.D. Fla. April 9, 2009)

Employee/Employer Implicated: Outside Counsel

e-Lesson Learned: Outside counsel should advise all party employees to conduct a thorough search of their computers so that relevant documents will be discovered and produced before the end of the discovery period.

Tweet This: You risk more than making a fool of yourself when you fail to conduct thorough discovery --> http://ellblog.com/?p=1975

The old adage: “measure twice, cut once” applies to carpentry and very well should apply to the legal profession. Both a carpenter and an attorney will save time and money by adhering to this maxim. Take for example Preferred Care Partners Holding v. Humana. In that case, Humana produced an additional 10,000 documents two months after the completion of discovery, and suffered sanctions because of it. Humana discovered the existence of these newly produced documents during a deposition of an employee who found residual copies of documents that he believed had been deleted from his computer. As a consequence, Humana conducted a subsequent search which led to the discovery of a vast number of residual files on other computers. Because of the need to sort through all of the documents to determine which ones were responsive and privileged, the files were not produced until well after discovery concluded, and only a short time before trial.