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Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Denies Defendant’s Motion for Production of Documents for In Camera Review: eDiscovery Case Law

In Portland Pipe Line Corp. et. al. v. City of South Portland et. al., No. 15-00054 (D. Maine, Sept. 8, 2016), Maine Magistrate Judge John H. Rich, III denied the defendants’ motion to compel the production of documents withheld or redacted on claims of attorney-client privilege by the plaintiff, finding that the plaintiffs “undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor” and then undertaking a “painstaking manual review to verify the privileged status of every ESI document marked as privileged”.

Case Background

In this case where the plaintiff sued the defendant seeking declaratory and injunctive relief regarding an ordinance prohibiting the loading of crude oil, the defendant brought instant disputes to the court’s attention regarding perceived inadequacy with the plaintiff’s privilege log.  The defendants indicated that they diligently attempted to resolve the instant disputes, emailing letters to the plaintiffs on August 10 and 22, 2016, to which the plaintiffs, in letters emailed on August 15 and 24, 2016, “offered no meaningful response”, forcing them to take the issue to the court.  On August 10, the defendants also advised that, absent further detail, they suspected that the privilege was improperly claimed as to four categories of documents and eventually demanded that the plaintiffs produce all documents withheld on the first three categories within the remaining three categories for the court’s in camera review in determining whether to order that additional detail be provided in the ESI log or documents be produced.

The plaintiffs countered that the defendants pursued a “dilatory and burdensome approach” and raised no concern about the adequacy of a similar hard-copy document privilege log that the plaintiffs had produced on July 14, and that they also failed to define the scope and nature of their complaints about the ESI privilege log sufficiently to enable a particularized response, asserting that the defendants, as the parties pressing discovery disputes, bore the burden of defining the scope of those disputes in such a manner as to permit the plaintiffs an adequate opportunity to respond and the court to rule.  They also flatly declined to undertake a wholesale review of their privilege log, decrying the undue burden of the request in light of the costly and time consuming efforts already taken to create the log and standing by both its adequacy and the viability of their claims of privilege.

Judge’s Ruling

With regard to the argument over the production of the privilege log and noting that the defendants waited until August 30 to seek the court’s aid, Judge Rich stated that “The plaintiffs have the better argument.”  In denying the defendant’s motion, he stated:

“I appreciate that the defendants cannot be certain, in the absence of the requested in camera review, whether documents have or have not been properly withheld. However, I take into consideration the plaintiffs’ counsel’s representation, as officers of the court, that the plaintiffs undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor and then, following the production of more than 100,000 pages of ESI to the defendants on July 29, immediately undertaking a painstaking manual review to verify the privileged status of every ESI document marked as privileged and draft appropriate descriptions for the ESI log. The plaintiffs’ counsel further represent that the plaintiffs executed targeted searches of documents as to which privilege had been claimed to identify those less likely to have been privileged. As a result of those efforts, when the plaintiffs produced their ESI log on August 2, they not only made new claims of privilege as to previously produced documents but also withdrew claims of privilege as to a number of other documents.”

So, what do you think?  Should the in camera review have been allowed?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff Granted Documents Withheld Due to Privilege, But Denied Expanded Search of Emails: eDiscovery Case Law

In Moore v. Lowe’s Home Ctrs., LLC, No. 14-1459 RJB (W.D.Wash. Feb. 19, 2016), Washington District Judge Robert J. Bryan ruled in favor of the plaintiff that documents and communications dated before the defendant anticipated litigation were not privileged work product and should be produced, but he ruled against the plaintiff in her request have the defendant perform additional searches on email to identify additional relevant documents.

Case Background

In this discrimination case, the plaintiff filed a Motion to Compel Production of Improperly Withheld Documents and Responses to Discovery Regarding Destruction of Plaintiff’s and Other Witnesses’ Email.  In her Motion to Compel, the plaintiff requested (among other things) for the Court to order the production of documents withheld on the basis of privilege and work product and compel additional searches for, and production of, emails responsive to the plaintiff’s discovery requests.

With regard to the documents withheld on the basis of privilege and work product, the defendant claimed that it properly withheld communications between non-attorneys because privilege extends to corporate employees for confidential communications with corporate attorneys and for confidential communications relating to legal advice from those attorneys.

As for the additional searches requested by the plaintiff (due in part to the emails in the plaintiff’s possession that were not uncovered in the defendant’s search), the plaintiff asserted that the defendant should demonstrate that it performed a diligent search, that the defendant should conduct additional searches using terms requested by the plaintiff and that these new searches be conducted without including Plaintiff’s first or last name, on the email accounts of each witness.

In response, the defendant argued they had reviewed 21,000 emails from 17 custodians at a cost of $48,074, that the relevant emails from 2012 were likely deleted and that a search using the 88 newly requested search terms (including annoy*, bull, click*, dad, date*, hand, rack, rod, box) in conjunction with removing Plaintiff’s name from the search would result in hundreds of thousands of irrelevant emails.

Judge’s Ruling

With regard to the documents withheld on the basis of privilege and work product, Judge Bryan ruled that “Defendant states that it anticipated litigation as of April 25, 2013…Therefore, documents created prior to that date are not work product. Similarly, investigative communications made before April 25, 2013, in relation to Plaintiff’s complaints and termination fall outside the realm of legal advice and are thus not privileged. Investigation into employee complaints or misconduct serves a predominantly HR function, especially if the investigation takes place before litigation is anticipated. Defendant has not provided sufficient information to distinguish its activities as legal in nature.”  As a result, the defendant was ordered to “produce documents and communications dated before April 25, 2013, relating to investigations into Plaintiff’s complaints and termination.”

With regard to the additional searches requested by the plaintiff, Judge Bryan stated:

“Plaintiff’s request for email searches is overly broad and not proportional to the case…While the additional search terms could possibly yield some relevant results, Plaintiff has not provided specifics about what Plaintiff reasonably expects such a search to show, and Plaintiff has not shown that this information could not be found through other means. For example, Plaintiff has not shown that she would be unable to uncover the same information by asking additional questions of witnesses already scheduled to be deposed. As to this discovery issue, Plaintiff’s motion should be denied.”

So, what do you think?  Should the parties have been ordered to meet and confer regarding the search terms?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will be off tomorrow for Good Friday and will resume with a new post on Monday.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2015 eDiscovery Case Law Year in Review, Part 2

As we noted yesterday, eDiscovery Daily published 89 posts related to eDiscovery case decisions and activities over the past year, covering 72 unique cases!  Yesterday, we looked back at cases related to admissibility and proportionality, production format disputes and (once again) the ubiquitous Apple v. Samsung case.  Today, let’s take a look back at cases related to disputes about discovery, eDiscovery cost reimbursement and issues related to privilege and confidentiality assertions.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

DISPUTES ABOUT DISCOVERY

Last year, we covered cases where parties requested discovery on their opponent’s discovery process.  Those, and other general disputes about the discovery process – including requesting 30(b)6) depositions and a notable dispute about whether contract attorneys should receive overtime pay – are included in this category.

Calling First 30(b)(6) Witness a “Waste of Time”, Court Orders a Second Deposition: In Rembert v. Cheverko et. al., New York District Judge Katherine B. Forrest granted the plaintiff’s motion “in its entirety” to compel the defendants to provide a properly prepared 30(b)(6) witness to testify regarding the defendants’ preservation and production of emails, to provide copies of document retention/preservation notices issued and to reimburse plaintiff’s costs and fees associated with having to conduct an additional deposition.

Court Acknowledges Lack of Expertise to Recommend Search Methodology, Orders Parties to Confer: In ACI Worldwide Corp. v. MasterCard Technologies, LLC and MasterCard International, Inc., Nebraska Magistrate Judge F.A. Gossett, acknowledging that the Court “simply does not have the expertise necessary to determine the best methodology to be employed in retrieving the requested materials in a safe, non-obtrusive, and cost-effective manner”, ordered the parties to “once again” confer in an effort to reach an agreement regarding the search methodology to be employed by the defendants in retrieving the information requested by the plaintiff.

Court Agrees with Plaintiffs, Orders Provision for Qualitative Sampling of Disputed Search Terms: In the case In Re: Lithium Ion Batteries Antitrust Litigation, California Magistrate Judge Donna M. Ryu ordered the defendants to comply with the plaintiffs’ proposed qualitative sampling process for keyword search terms, citing DaSilva Moore that keywords “often are overinclusive”.

Court Rules on Dispute about Search Terms and Organization of Produced Documents: In Lutzeier v. Citigroup Inc., Missouri District Judge Ronnie I. White ruled on two motions to compel discovery by the plaintiff, addressing (among other things) disagreement on search terms to be used by the defendant and lack of organization and labeling of the defendant’s production to date.

Should Contract Review Attorneys Receive Overtime Pay?: Whether they should or not, maybe they can – if they’re found NOT to be practicing law, according to a ruling from the Second U.S. Circuit Court of Appeals.  That case was ultimately settled (click here for more information).

“Quality is Job 1” at Ford, Except When it Comes to Self-Collection of Documents: In Burd v. Ford Motor Co., West Virginia Magistrate Judge Cheryl A. Eifert granted the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s search and collection methodology, but did not rule on the issue of whether the defendant had a reasonable collection process or adequate production, denying the plaintiff’s motion as “premature” on that request.

EDISCOVERY COST SHARING AND REIMBURSEMENT

This year, eDiscovery cost reimbursement began to trend toward the positive as there were four cases where the prevailing party was awarded reimbursement of eDiscovery costs and only one case where requests for reimbursement of eDiscovery costs were denied (one requested further declaration by the requesting party).

Court’s “Jazzy” Decision to Award Costs May “Bug” Plaintiff, But Defendant Doesn’t Mind a “Bit”: In Fitbug Ltd. v. Fitbit, Inc., California District Judge Samuel Conti, throwing in a jazz reference during his opinion, ruled to tax over $63,000 in costs to be paid to the prevailing defendant in the case.

Plaintiff Awarded Sanctions and Reimbursement of Some eDiscovery Costs: In Engineered Abrasives, Inc. v. American Machine Products & Service, Inc., Illinois District Judge Sara L. Ellis awarded the plaintiff damages, attorneys’ fees and some requested costs, as well as granting the plaintiff’s motion for sanctions and ordering the defendants to reimburse the plaintiff $12,800 for the cost of conducting a forensic computer examination, which the plaintiff maintained was necessitated by Defendants’ evasive and incomplete responses and their failure to produce documents during discovery.

Image is Not Only Everything, It Is Also Legally a Copy, Appeals Court Rules: In Colosi v. Jones Lang LaSalle Americas, Inc., the Sixth Circuit Court of Appeals affirmed the District Court’s judgment to approve a $6,369.55 bill of costs which included synchronization of deposition videos and imaging of hard drives that the defendant submitted after prevailing in the case.

Court Upholds Review of Taxable Costs by Clerk, Awards over $57,000: In Comprehensive Addiction Treatment Center, Inc. v. Leslea, Colorado District Judge Christine M. Arguello denied the plaintiffs’ motion to review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1), upholding the award by the Clerk of the Court of $57,873.61 in taxable costs.

Appeals Court Reverses Award for Attorney Fees for Overbroad ESI Requests: In Bertoli et al. v. City of Sebastopol, et al., the California Court of Appeals, while not disagreeing with the trial court’s finding that the plaintiff’s ESI request was “unfocused and nonspecific, unduly burdensome, and an alarming invasion of privacy rights”, disagreed that their Public Records Act (PRA) requests were “clearly frivolous” and reversed the trial court’s order for attorneys fees and costs.

Court Orders Defendant to Submit Further Declaration after Plaintiff Disputes its Claimed eDiscovery Costs: In Bonillas v. United Air Lines Inc., California Chief Magistrate Judge Elizabeth D. LaPorte ordered the defendant to submit a further declaration supporting its claimed eDiscovery costs by addressing several issues raised by no later than January 5, 2015, with the plaintiff having until January 8, 2015 to submit a brief response to the further declaration if he chose to do so.

PRIVILEGE  AND CONFIDENTIALITY ASSERTION ISSUES

There were a few cases related to disputes regarding privilege and confidentiality, including one where the producing party submitted a 2,941(!) page privilege log and another where a party classified 95% of its production as “highly confidential”!  Here are six cases discussing privilege and confidentiality assertions:

Court Denies Plaintiff’s Request for In Camera Review of Defendants’ Privileged Emails: In Armouth International, Inc. v. Dollar General Corp. et. al., Tennessee Magistrate Judge Barbara D. Holmes, calling the plaintiff’s request a “fishing expedition”, denied the plaintiff’s expedited motion to compel, requesting that the defendants be required to produce emails that were either withheld or redacted based on claims of attorney-client privilege for an in camera review of the emails by the Court to confirm the privilege claims.

Privilege Log Identifies Additional Documents to be Produced by Defendant: In U.S. Securities and Exchange Commission v. Commonwealth Advisors, Inc. et al., Louisiana Magistrate Judge Stephen C. Riedlinger ordered the defendants to produce additional documents that were identified on the defendants’ privilege log, but for which the defendants had waived attorney-client privilege.

Defendant Ordered to Produce Emails Between Non-Attorney Employees That Were Deemed Privileged: In Cicon v. State Farm Mutual Auto Ins. Co., Pennsylvania District Judge Richard P. Conaboy denied the plaintiff’s request for the defendant to produce attorney-client communications that occurred before the filing of the complaint, but granted his request regarding communications between non-attorney employees before the plaintiff’s counsel sent a letter threatening litigation, ordering the defendant to produce those emails, while allowing the defendant to redact explicit discussion of an attorney’s advice.

Court Orders Plaintiff to Re-Review 95% of its Production Classified as “Highly Confidential”: In Procaps S.A. v. Patheon Inc., after the plaintiff designated 95% of its forensically-produced documents (141,525 of 148,636) as “highly confidential”, Florida District Judge Jonathan Goodman ordered the plaintiff to re-review and re-designate those documents within ten days, and also assessed a $25,000 fees award against the plaintiff’s outside counsel to compensate the defendant for its efforts in reviewing the documents.

If You’re Going to Submit a 2,941 Page Privilege Log, You’d Better Be Able to Demonstrate Privilege: In United States v. Louisiana, Louisiana Magistrate Judge Richard L. Bourgeois, Jr., after reviewing 40 documents provided by the defendant for in-camera review, granted the plaintiff’s Renewed Motion to Compel a Proper Privilege Log, after denying the original motion because the plaintiff only provided 13 examples of “insufficient descriptions” within the privilege log’s entries.

Apple’s Motion to Seal eDiscovery Vendor Invoice Line Items Granted by Court: In GPNE Corp. v. Apple, Inc., California District Judge Lucy H. Koh granted the defendant’s motion to file under seal specific line items from third-party e-discovery vendor invoices that were submitted in support of its bill of costs.

Tomorrow, we will cover cases related to cooperation issues, social media and mobile phone discovery, the one case involving technology assisted review and the first part of the cases relating to sanctions and spoliation (yes, there were that many).  Stay tuned!

Want to take a look at cases we covered the previous four years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Sedona Conference Provides Guidance for Protection of Privileged ESI: eDiscovery Best Practices

As volumes of electronically stored information (ESI) stored in the world doubles every 1.2 years, it becomes more challenging to identify the ESI that is subject to a claim of attorney-client privilege or work product protection and log and exclude that ESI from production.  Federal Rule of Evidence 502 was intended to address waiver of such privilege claims and reduce the discovery costs, but many attorneys and judges don’t realize the protections the rule offers.  Now, The Sedona Conference® has issued a new final commentary to “breathe some needed life” into the understanding and use of Rule 502.

Last week, Working Group 1 of The Sedona Conference, announced the final release of The Sedona Conference Commentary on Protection of Privileged ESI, which reflects changes made after release of the public comment version in November 2014.

The Commentary attempts to “breathe some needed life” into the understanding and use of Rule 502 by:

  1. Reminding counsel of the basics of the law on privilege in the context of modern document productions;
  2. Encouraging parties, lawyers, and the courts to consider employing Rule 502(d)-type orders in every complex civil matter;
  3. Articulating a “safe harbor” presumption that protects parties from claims of waiver in connection with the inadvertent production of privileged materials, provided that there is adherence to certain basic best practices in the context of ESI privilege review;
  4. Encouraging cooperation among litigants to lower the cost and burden of identifying privileged information; and
  5. Identifying protocols, processes, tools, and techniques that can be used to limit the costs associated with identifying and logging privileged material, and avoiding or resolving disputes relating to the assertion of privileges.

The 64 page Commentary covers the four Principles on Protection of Privileged ESI, which are as follows:

  • Principle 1: Parties and their counsel should undertake to understand the law of privilege and its appropriate application in the context of electronically stored information.
  • Principle 2: Parties, counsel, and courts should make use of Federal Rule of Evidence 502(d) and its state analogues.
  • Principle 3: Parties and their counsel should follow reasonable procedures to avoid the inadvertent production of privileged information.
  • Principle 4: Parties and their counsel should make use of protocols, processes, tools, and technologies to reduce the costs and burdens associated with the identification, logging, and dispute resolution relating to the assertion of privilege.

The Commentary also provides appendices that include an Explanatory Note on Evidence Rule 502 Prepared by the Judicial Conference Advisory Committee on Evidence Rules, two model Rule 502(d) orders (including the one we previously discussed here from Hon. Andrew J. Peck (S.D.N.Y.)) and state law analogues of Federal Rule 502 adopted by several states.

You can download the Commentary here.  Consider it an early Christmas present from The Sedona Conference!

So, what do you think? Do you use 502(d) orders in your cases?  If not, why not?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Plaintiff’s Request for In Camera Review of Defendants’ Privileged Emails: eDiscovery Case Law

In Armouth International, Inc. v. Dollar General Corp. et. al., No. 14-0567 (M.D. Tenn., November 2, 2015), Tennessee Magistrate Judge Barbara D. Holmes, calling the plaintiff’s request a “fishing expedition”, denied the plaintiff’s expedited motion to compel, requesting that the defendants be required to produce emails that were either withheld or redacted based on claims of attorney-client privilege for an in camera review of the emails by the Court to confirm the privilege claims.

Case Background

In this dispute between a discount retailer and one of its suppliers over failure to pay invoices and cancelled orders, the defendants withheld certain email communications and redacted other emails on the basis of attorney-client privilege.  The disputed emails related to a decision made by the defendants’ Assistant General Counsel (AGC) to release a hold (that was originally placed by the defendants because the merchandise failed to conform to the labeling standards set forth by the Federal Trade Commission) on merchandise that was to be distributed to the defendants’ retail stores for sale.  The defendant contended that the AGC’s decision was purely legal and involved, at most, minor business considerations.

Citing the AGC’s role as “head of the Compliance Department” and “supervisor to the Senior Director of Global Sourcing”, the plaintiff argued that the AGC was acting with his “business hat,” as opposed to his “legal hat,” and that the emails withheld and redacted by the defendant involving the AGC were therefore not subject to the attorney-client privilege.  As a result, the plaintiff filed an expedited motion to compel, requesting that the defendants be required to produce all 52 of the communications withheld or redacted by the defendant for an in camera review by the Court to determine which emails are protected by the privilege.

Judge’s Ruling

Referencing the defendant’s contention that the decision to release the hold was made by the AGC precisely because it required the legal opinion of an attorney, Judge Holmes stated:

“The Court is not persuaded that this series of events, nor Armouth’s unsupported speculation, forms a ‘factual basis adequate to support a good faith belief by a reasonable person’ that an in camera review of the emails contained in Dollar General’s privilege log would reveal communications involving business advice unprotected by the attorney-client privilege. Armouth is unwilling to believe that Mr. Stephenson was acting in a legal capacity when the decision was made to release the hold on its merchandise, despite the fact that the hold was originally implemented due to legal considerations, i.e. the failure of Armouth’s merchandise to comply with federal law with respect to labeling standards.”

Continuing, Judge Holmes stated: “The Court agrees with Dollar General that Armouth’s blanket request for review of the entire privilege log suggests a ‘fishing expedition,’ as opposed to a specific request to discover relevant information. The Court also notes that granting Armouth’s motion, which broadly requests a review of all of Dollar General’s emails withheld based on attorney-client privilege, would open the floodgates and allow any party to demand an in camera review of the opposing party’s attorney-client communications so long as the former expressed an unfounded suspicion that counsel for the latter had misrepresented the basis for the privilege claim. For the these reasons, Armouth’s motion is DENIED.”

So, what do you think?  Should the court have allowed for the in camera review?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Privilege Log Identifies Additional Documents to be Produced by Defendant: eDiscovery Case Law

In U.S. Securities and Exchange Commission v. Commonwealth Advisors, Inc. et. al., No. 12-700 (M.D. La., Sept. 28, 2015), Louisiana Magistrate Judge Stephen C. Riedlinger ordered the defendants to produce additional documents that were identified on the defendants’ privilege log, but for which the defendants had waived attorney-client privilege.

Case Background

In this case, the district judge submitted a previous ruling that by December 2014, the defendants must “submit to the Plaintiff a revised privilege log that is in compliance with Fed.r.Civ.P. 26(b)(5)(A) and must produce to Plaintiff all documents for which the attorney client privilege has been waived by the assertion of the advice-of counsel defense.”  The defendants provided the plaintiff with revised privilege logs and produced some responsive documents, but the plaintiff asserted that the defendants had failed to produce all of the documents for which it had waived the attorney-client privilege, noting several documents were still included on the privilege log that related to “advice”.

Additionally, the plaintiff was provided with a production that did not redact purportedly privileged information from the original native-format files or from the searchable text metadata that was used to identify and locate specific documents.  Based on the examination of the metadata for selected documents, and a comparison of the metadata with the image file, the plaintiff believed that additional responsive material might be found on other redacted documents as well.  The defendants characterized the plaintiff’s revelation as “reconstructing the redacted portions of documents from metadata that was inadvertently included by a third-party vendor – a vendor made necessary by the SEC’s demand that all files be produced in a certain electronic format.”

As a result of these issues, the plaintiff moved to compel production of the remaining documents.

Judge’s Ruling

Noting that “the day after the Plaintiff’s Second Motion to Compel was filed the defendants advised the plaintiff that there was a problem with their production”, Judge Riedlinger stated that “by demanding that the plaintiff delete all of the incorrectly produced materials, which the plaintiff agreed to do, the defendants effectively failed to comply with the Ruling and Order” (from December 2014).  “Defendants’ otherwise timely production cannot be considered so when they demand a significant part of it — in terms of both volume and content — not be examined and also be deleted.”

Noting that, in his original order, the district judge “did not disagree with the determination that defendants’ privilege logs (provided up to that time) were wholly inadequate to sustain their assertion of the attorney-client privilege”, Judge Riedlinger found that “Defendants revised privilege logs are, overall, now less reliable than the ones they previously produced because they include insufficient and sometimes misleading document descriptions. Plaintiff has persuasively shown that the defendants improperly redacted at least two specific documents (Exhibits J and K), and there is good cause to believe there are more improperly redacted documents.”

As a result, Judge Riedlinger stated:

“The current circumstances support finding that the defendants waived their attorney-client privilege and should be required to produce all previously-withheld documents.  They failed to take any reasonable steps to prevent the disclosure of claimed still-privileged information by the manner of their December production. Only after the plaintiff brought it to their attention in this motion, filed more than six weeks later, did they do anything about it. Defendants provided deficient and sometimes misleading revised privilege logs which, overall, are not reliable. Defendants knowingly redacted materials which are subjects of their advice-ofcounsel attorney-client privilege waiver, and intentionally did not produce one document until they determined it was in their interest to do so. And lastly, but importantly, in these circumstance it is simply unfair to the plaintiff to allow the defendants to assert a broad advice-of-counsel defense, interpret it narrowly, and then based on their narrow interpretation withhold information and documents relevant to that defense.”

As a result, Judge Riedlinger granted the plaintiff’s motion to compel and ordered the defendants to “produce to the plaintiff, within 21 days, all documents withheld on the basis of attorney-client privilege, whether solely or in part.”

So, what do you think?  Did the defendants’ discovery failures cost them privilege assertions on some documents?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Defendant Ordered to Produce Emails Between Non-Attorney Employees That Were Deemed Privileged: eDiscovery Case Law

In Cicon v. State Farm Mutual Auto Ins. Co., No. 14-2187 (M.D. Pa. Aug. 21, 2015), Pennsylvania District Judge Richard P. Conaboy denied the plaintiff’s request for the defendant to produce attorney-client communications that occurred before the filing of the complaint, but granted his request regarding communications between non-attorney employees before the plaintiff’s counsel sent a letter threatening litigation, ordering the defendant to produce those emails, while allowing the defendant to redact explicit discussion of an attorney’s advice.

Case Background

In this case, the plaintiff sued the defendant insurance company regarding coverage of the plaintiff’s injuries in an automobile accident.  During the course of litigation, the defendant produced a privilege log which cursorily described communications between the defendant and legal counsel as well as internal communications between various of its claims personnel.  The plaintiff filed a motion to compel, seeking documents that detailed communications between the defendant and its attorneys in relation to this case, as well as documents that detailed communications between the defendant’s employees or agents regarding this matter.  With regard to the attorney-client communications, the plaintiff argued that they should be produced because many of the attorney-client communications referenced in the defendant’s privilege log occurred before the filing of the complaint that initiated the case.

Judge’s Ruling

With regard to the plaintiff’s argument for producing the attorney-client communications, Judge Conaboy stated “The Court cannot agree. Because Plaintiff retained counsel and threatened litigation via the aforementioned letter of February 18, 2014, all communications between Defendant and its various attorneys that post-date February 18, 2014 are very likely, if not presumptively, concerned with the Defendant’s defense of this matter. Simply put, Plaintiff has cited no evidence that the attorney-client communications Defendant seeks to shield were related to mere business purposes.”  As a result, Judge Conaboy denied the plaintiff’s request to have these documents produced.

With regard to communications between the defendant’s employees, Judge Conaboy ruled to “categorically exclude from production those that post-date Plaintiff’s counsel’s letter of February 18, 2014 threatening litigation”, deciding to “presume that all inter-office communications in this file after that date were prepared in anticipation of litigation and are, thus, properly excluded from discovery except in the redacted form Defendant has proposed.”  However, with regard to the “numerous” inter-office communications in the privilege log that pre-dated the plaintiff’s counsel’s letter, Judge Conaboy concluded that “inter-office communications before that date were prepared in the ordinary course of business, and, consequently, are not subject to work product protection”.  He did note, that “[t]o the extent that any of these documents contain explicit discussion of an attorney’s advice or direction, Defendant may redact the document to exclude such excerpts consistent with the earlier discussion of attorney-client privilege.”

So, what do you think?  Should the defendant have been ordered to produce the non-attorney emails?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

If You’re Going to Submit a 2,941 Page Privilege Log, You’d Better Be Able to Demonstrate Privilege: eDiscovery Case Law

In United States v. Louisiana, 11-470-JWD-RLB. (M.D. La. July 31, 2015), Louisiana Magistrate Judge Richard L. Bourgeois, Jr., after reviewing 40 documents provided by the defendant for in-camera review, granted the plaintiff’s Renewed Motion to Compel a Proper Privilege Log, after denying the original motion because the plaintiff only provided 13 examples of “insufficient descriptions” within the privilege log’s entries.

Case Background

In this enforcement action for declaratory and injunctive relief under the National Voter Registration Act of 1993 filed by the plaintiff in 2011, the defendant submitted a 2,941 page privilege log on February 6, 2015 in response to the plaintiff’s second Requests for Production which listed email communications and their attachments, that the plaintiff claimed were protected from production by the attorney client privilege, the work product doctrine, and the joint defense/common interest privilege.

On February 23, the plaintiff informed the defendant that its privilege log did “not contain a sufficient amount of information for [the U.S.] or the Court to be able to make an independent privilege determination as to the applicability and validity of the asserted privilege”, complaining about the privilege log’s failure to include: (1) job titles of the listed recipients, including whether any recipient was acting in the capacity of an attorney; (2) descriptions for most of the listed email’s attachments; and (3) sufficiently detailed descriptions of the communications referenced.  Then, on April 17, the defendant gave the plaintiff an updated privilege log, which deleted “over 1500” communications and documents and also included brief descriptions of the email attachments listed in the log, reducing the overall privilege log to (a mere) 2,302 pages of entries.  Still, the plaintiff filed a Motion to Compel a Proper Privilege Log.

On May 22, Judge Bourgeois denied the motion to the extent that it sought an order compelling the defendant to produce an entirely revised Privilege Log, noting that the plaintiff “only provides 13 examples of ‘insufficient descriptions’ that apparently account for ‘hundreds if not thousands’ of the privilege log’s entries” and rejected the plaintiff’s “sweeping argument” to order the defendant to revise every entry of its privilege log.  Judge Bourgeois did rule that the plaintiff “may file a renewed Motion to Compel by Friday, May 29, 2015, citing up to 40 specific entries in DHH’s privilege log, which are exemplary of the entries it challenges as insufficient.”  The plaintiff did that, and the defendant then submitted for in-camera review the documents described in the 40 privilege log entries.

Judge’s Ruling

With regard to the defendant’s privilege log, Judge Bourgeois noted that the “challenged entries are not described with sufficient detail for either the Court or the United States to evaluate the applicability of the attorney client privilege or work product doctrine”, that, in several instances, “the privilege log includes some, but not all of the senders or recipients of a communication” and that it also “fails to sufficiently explain the role of each identified recipient and sender with respect to communications with in-house counsel”.

With the “benefit of being able to review (in-camera) the documents described in the 40 entries at issue”, Judge Bourgeois concluded that “many of these documents do not fall within the scope of the attorney client privilege or work product doctrine” and was “convinced that the overwhelming majority (if not all) of the withheld 40 documents, do not concern the legal advice of counsel as it relates to this litigation or counsel’s strategy for trial.”

As a result, Judge Bourgeois found that “DHH acted unreasonably in preparing the privilege log and asserting its claims of privilege”, but was “reluctant to find a complete waiver of privilege as to all of the documents described” in the log.  Instead, Judge Bourgeois ordered the defendant to reassess its claims of privilege and notify the plaintiff by August 17 of previously contested items for which it withdraws its claims of privilege and produce those documents OR provide the plaintiff with a supplemental privilege log containing sufficient information to allow the plaintiff to assess the defendant’s claims of privilege.

So, what do you think?  Was that the correct call?  Or should the court have waived privilege for all of the documents contained within the privilege log?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Apple’s Motion to Seal eDiscovery Vendor Invoice Line Items Granted by Court: eDiscovery Case Law

In GPNE Corp. v. Apple, Inc., 12-CV-02885-LHK (N.D. Cal. July 16, 2015), California District Judge Lucy H. Koh granted the defendant’s motion to file under seal specific line items from third-party e-discovery vendor invoices that were submitted in support of its bill of costs.

The defendant had sought to file the portions under seal because they stated that the invoices contained “sensitive and confidential information regarding the costs Apple incurred in defending against the patent infringement claims”, stating that they “reveal sensitive and confidential information regarding Apple’s financial relationship with its e-discovery vendor” and the information “could be used by Apple competitors to its disadvantage, as disclosure of the redacted information will reveal confidential pricing strategy and Apple’s financial relationship with its e-discovery vendor.”

Judge Koh started by observing that “Historically, courts have recognized a ‘general right to inspect and copy public records and documents, including judicial records and documents’…Accordingly, when considering a sealing request, ‘a strong presumption in favor of access is the starting point.’”  But, she also noted that “Records attached to nondispositive motions are not subject to the strong presumption of access…Because the documents attached to nondispositive motions ‘are often unrelated, or only tangentially related, to the underlying cause of action,’ parties moving to seal must meet the lower ‘good cause’ standard of Rule 26(c) of the Federal Rules of Civil Procedure…The ‘good cause’ standard requires a ‘particularized showing’ that ‘specific prejudice or harm will result’ if the information is disclosed.”

Judge Koh also stated that “Pursuant to Rule 26(c), a trial court has broad discretion to permit sealing of court documents for, inter alia, the protection of “a trade secret or other confidential research, development, or commercial information.”  Referring to the defendant’s motion as “nondispositive”, Judge Koh applied “the ‘good cause’ standard to Defendant’s request” and found that “Defendant has made a ‘particularized showing’ that ‘specific prejudice or harm will result’ if certain confidential terms of Defendant’s financial relationship with its e-discovery vendor are made public.”  Therefore, Judge Koh granted the defendant’s motion to seal as to the proposed redactions in the exhibit.

So, what do you think?  Should eDiscovery vendor pricing be considered confidential?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

“Quality is Job 1” at Ford, Except When it Comes to Self-Collection of Documents: eDiscovery Case Law

In Burd v. Ford Motor Co., Case No. 3:13-cv-20976 (S.D. W. Va. July 8, 2015), West Virginia Magistrate Judge Cheryl A. Eifert granted the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s search and collection methodology, but did not rule on the issue of whether the defendant had a reasonable collection process or adequate production, denying the plaintiff’s motion as “premature” on that request.

Case Background

In these cases involving alleged events of sudden unintended acceleration in certain Ford vehicles, the plaintiffs, in December 2014, requested regularly scheduled discovery conferences in an effort to expedite what they anticipated would be voluminous discovery.

At the February 10, 2015 conference, the plaintiffs raised concerns regarding the reasonableness of the searches being performed by the defendant in its effort to respond to plaintiffs’ requests for documents.  While conceding that it had not produced e-mail in certain instances, because it did not understand that the request sought e-mail communications, the defendant did indicate that it had conducted a “sweep” of the emails of ten to twenty key custodians.  That “sweep” was described as a “self-selection” process being conducted by the individual employees, who had each been given information about the plaintiffs’ claims, as well as suggested search terms.  However, excerpts of deposition transcripts of defendant’s witnesses provided by the plaintiff revealed that some of those key employees performed limited searches or no searches at all.

Also, the Court ordered the parties to meet, confer, and agree on search terms.  The defendant objected to sharing its search terms, contending that the plaintiff sought improper “discovery on discovery,” and deemed the plaintiff’s request as “overly burdensome” given that each custodian developed their own search terms after discussing the case with counsel.

Judge’s Ruling

Noting that the defendant’s “generic objections to ‘discovery on discovery’ and ‘non-merits’ discovery are outmoded and unpersuasive”, Judge Eifert stated, as follows:

“Here, there have been repeated concerns voiced by Plaintiffs regarding the thoroughness of Ford’s document search, retrieval, and production. Although Ford deflects these concerns with frequent complaints of overly broad and burdensome requests, it has failed to supply any detailed information to support its position. Indeed, Ford has resisted sharing any specific facts regarding its collection of relevant and responsive materials. At the same time that Ford acknowledges the existence of variations in the search terms and processes used by its custodians, along with limitations in some of the searches, it refuses to expressly state the nature of the variations and limitations, instead asserting work product protection. Ford has cloaked the circumstances surrounding its document search and retrieval in secrecy, leading to skepticism about the thoroughness and accuracy of that process. This practice violates ‘the principles of an open, transparent discovery process.’”

Judge Eifert also rejected the defendant’s claim of work product protection regarding the search terms, stating that “[u]ndoubtedly, the search terms used by the custodians and the names of the custodians that ran searches can be disclosed without revealing the substance of discussions with counsel.”  As a result, Judge Eifert granted the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s search and collection methodology, but did not rule on the issue of whether the defendant had a reasonable collection process or adequate production, denying the plaintiff’s motion as premature on that request.

So, what do you think?  Was the order for a deposition of a Rule 30(b)(6) witness the next appropriate step?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.