Privileged

Another Sedona Conference Commentary Published: eDiscovery Best Practices

Last week, I discussed two public comment publications from The Sedona Conference® (TSC) from last year that were published in final form over the past few weeks.  Now, TSC has announced a new publication from and its Working Group 11 on Data Security and Privacy Liability (WG11) that evaluates the application of the attorney-client privilege and work-product protection doctrine to an organization’s cybersecurity information.

Last week, TSC and its WG11 group announced the public comment version of its Commentary on Application of Attorney-Client Privilege and Work-Product Protection to Documents and Communications Generated in the Cybersecurity Context (Commentary), which may be the longest title for a TSC publication ever.

The goal of the Commentary is to address the absence of “settled law” on this topic by assessing (1) how the courts have and can be expected to decide, and what organizational practices will be important to a court’s decision regarding, whether the attorney-client privilege or work-product protection apply to documents and communications generated in the cybersecurity context; and (2) how the development of the law in this area should be informed not just by established attorney-client privilege and work-product protection legal principles, but also by the policy rationales underlying the attorney-client privilege and work-product protection generally and those unique to the cybersecurity context.

There are essentially five parts in the 65-page (PDF) Commentary.  Part A of the elaborates on the Commentary’s purpose and sets forth its target audience. Part B sets forth the legal principles generally applicable to claims of attorney-client privilege and work-product protection. Part C uses the general principles set forth in Part B and other relevant legal sources to evaluate how the courts have and can be expected to decide, and what organizational practices will be important to a court’s decision regarding whether the attorney-client privilege or work-product protection applies to various types of documents and communications that an organization generates in the cybersecurity context. Part D examines whether and to what extent the results suggested in Part C are consistent with the policy rationales underlying the attorney-client privilege and work-product protection generally and those unique to the cybersecurity context. Section 2 of Part D considers various proposals for adapting existing attorney-client privilege and work-product protection law, or developing entirely new protections, in the Cybersecurity Information (CI) context, and the tradeoffs those proposals present.   Part E is a one-paragraph conclusion to the Commentary.  There are no Appendices.

You can download a copy of the Commentary here (login required, which is free).  The Commentary is open for public comment through June 25, 2019. Questions and comments on the Commentary are welcome through June 25, and may be sent to comments@sedonaconference.org.  The drafting team will carefully consider all comments received, and determine what edits are appropriate for the final version.  Also, a webinar on the Commentary will be scheduled in the coming weeks, and will be announced by email and on The Sedona Conference website to give you the opportunity to ask questions and gain additional insight on this important topic.

So, what do you think?  How does your organization address attorney-client privilege and work-product protection of its cybersecurity information?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Sides with Defendants in Subpoena of Police Department Records of Unsolved Murder: eDiscovery Case Law

This case combines civil and criminal concerns, so it’s a great case to lead off the new year!

In Farmers New World Life Ins. Co. v. Atchison, No. CIV-17-1254-D (W.D. Okla. Dec. 17, 2018), Oklahoma District Judge Timothy D. DiGiusti granted the “Children” defendants’ Motion to Compel against non-party City of Oklahoma City Police Department (“OCPD”) to comply with the Children’s subpoena of records related to the murder of their father in a civil case with the insurance company.

Case Background

In an interpleader action arising from the murder of the father of minor Defendants (“Children”), one of the other defendants was the named beneficiary on an insurance policy provided by the plaintiff, but was also the primary suspect in the murder of the Children defendants’ father.  The plaintiff filed the action seeking interpleader relief on the basis of Oklahoma’s “slayer statute,” and the “Children” became aware of the action and the insurance policy in February 2018 when they were served with summons. The Children submitted a request to the OCPD, but OCPD denied the request.  The “Children” then issued a subpoena to defendant City of Oklahoma City requesting records related to the murder.

The City of Oklahoma City objected to the subpoena on behalf of OCPD stating that the criminal investigation into the death was ongoing and that the release of the requested reports might interfere with the investigation (where no charges had been filed).  In response, the “Children” filed a Motion to Compel seeking compliance with the subpoena or, in the alternative, an in-camera inspection of the investigative file.  The City of Oklahoma City opposed the motion on privilege grounds, but indicated they would agree to an in camera inspection with counsel for the “Children” during the review but objected to the presence of counsel for the defendant suspected of murder; in turn, that defendant objected to an ex parte in-camera inspection or any production of discovery that is not likewise provided to her.

Judge’s Ruling

Judge DiGiusti cited United States v. Winner in stating “To assert the law enforcement evidentiary privilege, the responsible official in the department must lodge a formal claim of privilege, after actual personal consideration, specifying with particularity the information for which protection is sought, and explain why the information falls within the scope of the privilege.”  Given that the “Children” asserted that OCPD failed to comply with these requirements, Judge DiGiusti said:

“The Court agrees with the Children. The only objections received on behalf of OCPD are an email from an individual of unidentified position in the Oklahoma City government and a letter from a municipal counselor…OCPD presents no formal claim from any responsible official within the department indicating “personal consideration” and “specifying with particularity the information for which protection is sought.” Instead, the City presents only the affidavit and search warrant along with a general objection that producing the requested information falls under the privilege because it will harm the ongoing investigation. Such a broad explanation does not comply with the requirements of Winner.”

Noting that the victim was “murdered nearly two years ago, no charges have been filed, and no arrest made” and that the affidavit informed the suspected defendant “of the theory of the case against her, the types of evidence in possession of OCPD at the time of the affidavit, as well as the evidence sought through the search warrant”, Judge DiGiusti found that “OCPD has failed to establish with particularity how production would harm the ongoing murder investigation.”  Finding that “the Children have made a compelling argument that the investigative material is relevant and necessary to their case aimed at preventing Defendant Keisha Jones from recovering a life insurance policy on the basis of her alleged involvement in Mr. Atchison’s murder”, Judge DiGiusti ordered OCPD to produce “all materials responsive to the Children’s subpoena” to the chambers of the undersigned judge within thirty days.

So, what do you think?  Should the judge have allowed those materials to be produced, even for an in camera review?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Rejects Plaintiffs’ “Mindlessly Deficient” Objections to Native Format Production: eDiscovery Case Law

In McDonnel Grp., LLC v. Starr Surplus Lines Ins. Co. et al., No. 18-1380 (E.D. La. Oct. 3, 2018), Louisiana Magistrate Judge Joseph C. Wilkinson, Jr. granted in part and denied in part the defendants’ motion to compel, granting the defendants’ requests for the plaintiffs to produce construction schedules in native format, to identify responsive materials already produced to other specified defendants’ requests and to provide a privilege log for any documents withheld based on privilege to those requests.  Judge Wilkinson denied the defendants’ request for attorney’s fees and other expenses incurred in connection with the defendants’ motion.

Case Background

In this dispute between a general construction contractor and its insurers, the defendants sought production of construction schedules in native format, but the plaintiff asserted that it had produced all responsive materials in PDF format, even though the defendants specified production of “all construction schedules for the Project in their native format (as native files)”, according to Fed. R. Civ. P. 34(b)(1)(C), which provides that a requesting party “may specify the form or forms in which electronically stored information (“ESI”) is to be produced.”  As the responding party, plaintiff was required to “state with specificity the grounds for objecting to the request, including the reasons.”

Judge’s Ruling

As Judge Wilkinson noted (while erroneously referring to the plaintiff as defendants a couple of times): “In their written response to Request No. 34, defendants(sic) complied with none of these requirements. Instead of asserting specific objections or stating that it intended to produce these clearly relevant and discoverable materials in some form other than the requested native format, defendants asserted a mindlessly deficient, boilerplate, stonewalling objection that the request was ‘vague, overly broad, and not reasonably calculated to lead to the discovery of admissible evidence.’…By failing to object to production in native format, defendants(sic) waived that objection… Such information in the construction schedule context, with its frequent alterations, change orders, and time sensitive but often disturbed deadlines, is relevant. The PDF files chosen by plaintiff for production are merely pictures of the materials that do not provide metadata.”

Continuing, he wrote: “Plaintiff offers no proof that production of the requested construction schedules in native format would be unduly burdensome or expensive or that native files are not the way it ordinarily maintains the construction schedules. Instead, it relies upon Rule 34(b)(2)(E)(iii), which provides that “[a] party need not produce the same electronically stored information in more than one form.” Plaintiff dispossessed itself of this protection when it failed to object to production of its native files in its written response or state in its written response that it would produce all requested materials in PDF form, as required in Rule 34(b)(2)(D). To permit a responding party, in the face of a request that ESI be produced in a particular form, arbitrarily to choose some other form, would disrupt and undermine the orderly request/response/objection/confer structure and requirements of the remainder of the Rule concerning ESI. For these reasons, the motion is granted as to Request No. 34. Plaintiff must produce all native files sought in this request, together with a new written response, signed pursuant to Fed. R. Civ. P. 26(g), clearly stating that it has done so.”

Judge Wilkinson also classified the plaintiff’s written responses to other requests as “deficient” and ordered the plaintiff to “provide new written responses to these requests, clearly stating that it has produced all non-privileged responsive materials in its possession, custody or control, signed pursuant to Fed. R. Civ. P. 26(g), and identify those responsive materials by Bates number or other specific identifier. If plaintiff is withholding any materials responsive to these requests on privilege or work product grounds, it must provide the log required by Fed. R. Civ. P. 26(b)(5).”  However, Judge Wilkinson denied the defendants’ request for attorney fees and other expenses incurred in connection with the defendants’ motion.

So, what do you think?  Should failure to provide specific objections to form of production requests automatically waive those objections?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Rules “No Harm, No Foul” in Allowing Clawback After Protective Order Deadline: eDiscovery Case Law

In the case In re Abilify (Aripiprazole) Prod. Liab. Litig., No. 3:16-md-2734 (N.D. Fla. Sept. 17, 2018), Florida Magistrate Judge Gary R. Jones denied the plaintiff’s Disclosure Motion regarding two documents that defendant Bristol-Myers Squibb (BMS) claimed were privileged and inadvertently disclosed, stating that “[a]lthough BMS might not have followed the precise terms of the Protective Order”, “the one-day delay in sending the privilege log can charitably be described as a situation where the expression ‘no harm, no foul’ applies.”

Case Background

In this products liability case against pharmaceutical manufacturers, the plaintiffs’ used an internal BMS email and PowerPoint during the January 31, 2018, deposition of BMS’ executive director for Abilify marketing from February 2007-December 2008. The PowerPoint discussed, among other things, BMS’ Corporate Integrity Agreement (“CIA”).  During the deposition, BMS’ counsel objected on the grounds that the use of the PowerPoint contained “privileged . . . confidential information [that] was inadvertently produced, in particular the section that was drafted by and presented by legal.” BMS’ counsel expressly advised the plaintiffs before the conclusion of the deposition that they would be “exercising our clawback rights under our protective order.”

After the deposition was concluded BMS sent an email to the plaintiffs confirming their intent to claw back the email and PowerPoint as inadvertently produced.  While the email did not mention attorney-client privilege and did not contain a privilege log, BMS sent the plaintiffs a notice and associated privilege log on February 5 articulating the basis for clawing back the redacted email and PowerPoint attachment. BMS then produced redacted, replacement versions of the email and PowerPoint.  The plaintiffs claimed that BMS waived privilege because they failed to provide a written notice within two business days from the date of the deposition accompanied by a log articulating the privilege basis for the documents and also argued that the redacted portions of the documents were not privileged because the documents did not convey legal advice.

Judge’s Ruling

Evaluating the plaintiffs’ Disclosure Motion, Judge Jones stated: “Plaintiffs’ argument on timeliness fails for two reasons. First, as a practical matter Plaintiffs were notified at the deposition on January 31, 2018 that BMS asserted a privilege over the documents based upon the fact that a section of the PowerPoint had been prepared by and presented by an attorney. BMS reaffirmed its assertion of its rights under the clawback that same day on January 31, 2018, when it sent a confirming email to Plaintiffs. While the confirming email was not accompanied by a privilege log, there was no mystery at that point that BMS asserted a privilege and sought to claw back the document, as it was entitled to do under the Protective Order.”  While noting that the Protective Order required written notification accompanied by a privilege log within two business days on the deposition (and BMS’ second email wasn’t until the third business day), Judge Jones stated: “Although BMS might not have followed the precise terms of the Protective Order, in the Court’s view the one-day delay in sending the privilege log can charitably be described as a situation where the expression ‘no harm, no foul’ applies. Plaintiffs cannot point to any prejudice they suffered or could have suffered as a result of the receipt of a privilege log one day late, which simply confirmed the privilege timely raised by BMS at the deposition and then confirmed in writing the same day.”

Noting that BMS’ in-house counsel not only participated in the preparation of the PowerPoint, but also that the PowerPoint was part of a presentation by Senior BMS counsel made to BMS management employees, Judge Jones upheld BMS’ privilege designation of the materials and denied the plaintiffs’ Disclosure Motion.

So, what do you think?  How much leeway should be given to inadvertent disclosures when they fall outside of the parameters of a protective order?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Rules that Defendant’s Boilerplate Objections Results in Waiver of Those Objections: eDiscovery Case Law

In Halleen v. Belk, Inc., No. 4:16-CV-55 (E.D. Tex. Aug. 6, 2018), Texas District Judge Amos L. Mazzant, III granted the plaintiffs’ motions in part, ruling that the defendant had waived its objections to the plaintiffs’ RFPs and Interrogatories by including “subject to” or boilerplate language in its responses and also granted the plaintiffs’ request for ESI for identified corporate custodians and 30(b)(6) witnesses.

Case Background

In this Fair Labor Standards Act (“FLSA”) conditionally classified collective action against the defendant over failure to pay overtime compensation, the plaintiffs filed a Motion to Compel Production of Documents and Electronically Stored Information, and Proper, Complete Answers to Interrogatories in March 2018.  In their motion to compel, the plaintiffs requested that the Court compel the defendant to (1) produce all documents responsive to plaintiffs’ Requests for Production (“RFP”), (2) provide complete answers to all Interrogatories, and (3) search and collect, via specified search terms and parameters, all electronically stored information (“ESI”) germane to identified corporate custodians and 30(b)(6) corporate representatives.

The plaintiffs argued that the defendant’s objections to their RFPs and Interrogatories were “deficient, inapplicable, and/or without merit”, but the defendant, whose responses and objections consisted of assertions of privilege or contain “subject to” or boilerplate language, responded that its objections were not only appropriate but necessary to protect itself from Plaintiffs’ abusive discovery requests.  The plaintiffs claimed that the defendant failed to provide a privilege log accompanying its objections, but the defendant contended that it was not withholding any information on the basis of privilege. The plaintiffs also sought an order compelling the defendant to produce ESI for identified corporate custodians and 30(b)(6) witnesses, referencing an exhibit which list search terms, sample percentages, and specific custodians.  In response, the defendant stated that the plaintiffs’ suggested search terms and requests were overly broad and contended that the parties were still working on agreed search terms and have yet to reach an impasse warranting a motion to compel.

Judge’s Ruling

With regard to the defendant’s objections, Judge Mazzant ruled: “The Court finds that Defendant’s inclusion of ‘subject to and without waiving these objections’ is not supported by the federal rules and goes against the purposes of a just, speedy, and inexpensive resolution…Further, by answering questions in such a manner Defendant fails to specify the scope of its answer in relation to the request. This makes it impossible for Plaintiffs or the Court to assess the sufficiency of the response. Therefore, Defendant has waived each objection by including ‘subject to’ or boilerplate language in its responses…As such, Defendant’s failure to specify specific grounds in the objections results in waiver of those objections…As a result, Defendant is ordered to provide amended responses as discussed below.”

With regard to the plaintiffs motion to compel production of specified ESI, Judge Mazzant ruled: “The Court finds that Plaintiffs’ request for ESI as specified in Exhibit 1 to its Reply is appropriate and should be granted. Although Defendant asserts that the parties are not at an impasse, the Court finds that given the ongoing discovery disputes and inability to cooperate the requested relief is necessary. Plaintiffs further request an order requiring Defendant to produce a randomized five percent of content on a share drive from 2013 to the present regarding various divisions of employees, including STMs. Because this request is raised for the first time in Plaintiffs’ reply, the Court declines to grant such relief at this time. Rather, the Court encourages Plaintiffs to confer with Defendant to reach a common ground on the amount of share drive that needs to be produced and for which specific divisions.”

As a result, the defendant was ordered to: 1) provide a privilege log for each assertion of privilege made within seven days, 2) serve upon plaintiffs’ counsel amended, corrected and complete sets of answers to plaintiffs’ Interrogatories and Requests for Production and 3) produce, in TIFF format, the ESI requested by the plaintiffs within two weeks.

So, what do you think?  Should parties be allowed to correct their “boilerplate” objections before they are waived?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Declines to Compel Defendant to Produce Direct Messages Between its Employees: eDiscovery Case Week

eDiscovery Case Week is here!  We got a head start on it by catching up on a case on Friday, leading up to our webcast on Wednesday where Tom O’Connor and I will be talking about key eDiscovery case law for the first half of 2018.  With that in mind, let’s discuss a key case regarding custody and control by Twitter of the direct messages of its employees.

In Shenwick v. Twitter, Inc., No. 16-cv-05314-JST (SK) (N.D. Cal. Feb. 7, 2018), California Magistrate Judge Sallie Kim ruled on several discovery disputes between the parties, including denial of a request by the plaintiffs to order the defendants to produce protected direct messages of individual custodians who are not parties.

In this securities class action on behalf of all persons who purchased or otherwise acquired common stock of the defendant, there were six issues in dispute.  One key dispute involved a request from the plaintiffs that the defendants search Twitter private direct messages that each custodian sent and received.  The defendants had agreed to provide direct messages for individual defendants Anthony Noto and Richard Costolo only (who had consented to their production). The defendants argued that the Stored Communications Act prevents the disclosure of direct messages from anyone other than a named individual defendant.

In agreeing with the defendants, Judge Kim stated:

“’The Stored Communications Act prevents ‘providers’ of communication services from divulging private communications to certain entities and individuals… Courts have held that the Stored Communications Act prevents a court from enforcing a subpoena issued to a third party ECS or RCS for the protected information.’ Crispin v. Christina (sic) Audigier, Inc., 717 F.Supp.2d 965, 971-72 (C.D. Cal. 2010)… Plaintiffs are correct that a court can compel a party to produce information within the party’s custody and control, but they confuse the identity of the party with the identity of the individual custodians. Here, for purposes of analysis, the Court will treat Twitter as if it is separate from the individual custodians who have direct messages stored with Twitter. The individual custodians other than Costolo and Noto are not parties. In other words, because Defendants claim, without opposition, that Twitter did not require its employees to use direct messages for communications, the Court must evaluate Twitter separately from the individual custodians who have privacy rights protected by the Stored Communications Act. The two named individual defendants, Costolo and Noto, are allowing discovery of their direct messages, as Plaintiffs can issue to them requests for information pursuant to Rule 34 and obtain their direct messages… Plaintiffs merge Twitter and its individual custodians’ rights. They are not the same. If Plaintiffs issued a third party subpoena to a company—not Twitter—for direct messages that the individual custodians sent and received, there is no question that the Court could not enforce such a subpoena. Under the same reasoning, the Court cannot compel Twitter, a party in this litigation, to produce protected direct messages of individual custodians who are not parties simply because Twitter is also the provider of the direct messaging service.”

Ruling on other disputes, Judge Kim: 1) ordered the defendants to search the files of an additional custodian, Jack Dorsey, co-founder of Twitter and former CEO; 2) denying without prejudice the plaintiff’s request that the defendants produce documents from Falquora, Twitter’s internal message board; 3) ordered the defendants to produce documents in unredacted form that were covered by a stipulated Protective Order; 4) denying the plaintiff’s motion to compel documents containing terms “DAU” (daily active users) and “MAU” (monthly active users) WITHOUT PREJUDICE as potentially overbroad (allowing the plaintiffs to re-file the motion with a more specific, targeted approach if they are concerned the other requests for production are not yielding relevant documentation); 5) that the search “engag*” be conducted for documents with that term within 10 words of 20 terms proposed by defendants and up to 10 additional terms proposed by plaintiffs; and 6) denying WITHOUT PREJUDICE the plaintiff’s motion to compel the defendants to produce documents concerning Defendants’ efforts to “maintain, search for and preserve all documents” (which the defendants deemed to be privileged).

Despite the six issues being ruled on, Judge Kim stated “it is clear that the parties have worked hard in meeting and conferring to narrow the issues of dispute. The Court commends the parties for doing so and for presenting the remaining issues for dispute in a clear and cogent matter. The Court is confident that the parties will continue to meet and confer in good faith, narrow the areas of their dispute, and only present to the Court matters which they cannot resolve and which are significant.”

So, what do you think?  Should the direct messages of Twitter employees have been ruled out of the custody and control of Twitter?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Request for “Quick Peek” to Privilege Log, Proposing Special Master Review Instead: eDiscovery Case Law

In Winfield v. City of New York, No. 15-cv-05236, (S.D.N.Y. May 10, 2018), New York Magistrate Judge Katherine H. Parker, ruling on a debate of what constitutes privileged ESI,  denied the plaintiff’s request for a “quick peek” at 3,300 documents listed on the defendant’s privilege log, opting to propose instead for a special master to conduct a privilege review of those documents.

Case Background

In June 2017, the defendant moved for return of an accidentally produced privileged document under the agreed-upon procedures set forth in their Clawback Agreement, which then led to further discussion between the parties about the defendant’s privilege designations, with the plaintiffs believing the defendant over-designated documents as privileged.

In July 2017, the court directed the plaintiffs to identify a subset of 80 documents from the defendant’s privilege log that had been withheld on the basis of the deliberative process privilege. The court also ruled that “the defendant would have an opportunity to rereview the 80-document subset identified by Plaintiffs and determine whether it intended to maintain its privilege claim as to each document.”

After this review, the defendant maintained a claim of privilege over only 27 documents and withdrew its privilege designation for 51 document and produced them.  The Court subsequently ordered the City to submit all 80 documents to this Court for in camera review for purposes of assessing the validity of the initial and remaining privilege designations.

The plaintiffs also contested some of the defendant’s refusal to answer at depositions on the basis of attorney-client, work product, and/or deliberative process privilege and submitted a letter to the court seeking privilege rulings on 20 questions to which the City’s witnesses were directed not to respond. The defendant subsequently withdrew its privilege objections six of these questions and provided the plaintiffs with responses.

In February 2018, the court issued a lengthy ruling granting the defendant’s Clawback Demand and granting in part and denying in part the plaintiffs’ motion to compel production of certain documents from the sample set of documents designated as privileged by the defendant on its privilege log. The court also granted in part the plaintiffs’ motion to compel answers to questions posed during depositions. At the same time, the court directed the defendant to re-review its privilege designations, after which, the defendant de-designated certain documents as privileged and produced them.

In April 2018, the plaintiffs raised a concern with the volume (3,300 documents) designated by the defendant as privileged. The court then directed the parties to meet and confer concerning a proposal to address the plaintiffs’ concerns. At that meeting, the plaintiffs proposed the Court order the defendant to turn over all 3,300 documents designated as privileged for a “quick peek” at them, promising to review them in only a few weeks. The defendant, which had already spent significant time reviewing documents for privilege prior to producing them, vigorously objected.

Judge’s Ruling

After taking into consideration FRCP 26 and FRE 502, as well as previous case law, Judge Parker ruled:

“The task of reviewing 3,300 documents is enormous and one that this Court cannot complete before the end of fact discovery on July 31, 2018 given other demands in this and other cases. Appointment of a Special Master to conduct the privilege review pursuant to Rule 53 is therefore warranted…. In accordance with Rule 53(b)(1), the parties may file a letter regarding their position on the appointment of a Special Master, whether they have identified any conflict-of-interest issues… and suggest other candidates for appointment if they so desire…. Given the costs of a Special Master, Plaintiffs are directed to evaluate whether they can narrow the documents for review so as to reduce the time and thus the costs of the review.”

Judge Parker proposed the appointment of the Honorable Frank Maas (Ret.) of JAMS, who recently retired as a Magistrate Judge in the District and was available to conduct a review (and was recently proposed for a privilege review in another high-profile case).  Judge Parker indicated that “the parties may file a letter regarding their position on the appointment of a Special Master, whether they have identified any conflict-of-interest issues that would preclude appointment of Judge Maas, and suggest other candidates for appointment if they so desire.”

So, what do you think? Is the appointment of a special master to perform the privilege review the right ruling? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Former Football Players Sanctioned for Failure to Produce: eDiscovery Case Law

In Michael E. Davis, et al. v. Electronic Arts, Inc., No. 10-cv-03328-RS, (N.D. Cal., April 3, 2018), California Magistrate Judge Donna M. Ryu ruled that the plaintiff’s failure to fully comply with the discovery requests by the defendant were sanctionable under FRCP Rule 37, which states, “Such sanctions may include ordering a party to pay the reasonable expenses, including attorneys’ fees, caused by its failure to comply with the order or rule.”

Case Background

Three former NFL players claimed that Electronic Arts (EA) used their likenesses in the Madden NFL videogame series without authorization. In July 2017, EA moved to compel plaintiffs to provide further responses to discovery, and the court ordered the parties to meet and confer regarding the disputes set forth in the letters and to file joint letters regarding any remaining disputes. After a hearing, the Court granted in part EA’s motions to compel further responses to requests for the production of documents (“RFPs”), interrogatories, and requests for admission (“RFA”), setting a deadline for response on September 28, 2017.

A day after the deadline, the plaintiffs responded by saying they had, “engaged in a reasonable and diligent search” but found no responsive documents to certain requests. The plaintiffs also said the requested privilege log was rendered unusable due to a computer error even though both the plaintiffs and the plaintiffs’ attorney had stated in an earlier hearing that they had regular communications via email regarding the case.

EA requested sanctions of $45,000 against the plaintiffs under Rule 37. However, the billing records EA provided to the court did not segregate the fees by task or category, which makes it difficult to evaluate the reasonableness of the time expended, or to calculate precise sums that should be allowed or disallowed. But even with the problems with EA’s billing records, it was clear that EA incurred substantial attorneys’ fees in attempting to obtain plaintiffs’ compliance and seeking court intervention.

Judge’s Ruling

Given the inconsistencies between counsel and plaintiffs’ statements about communications regarding this litigation, Judge Ryu expressed concern about the adequacy of the plaintiffs’ search for responsive documents and ordered them to “search thoroughly all . . . email, going all the way back, for communications between [Plaintiffs] and other people who are not lawyers about this case.”

Judge Ryu also ruled that the plaintiffs’ response to the defendant’s discovery request was deficient and found monetary sanctions appropriate in this case, in addition to the evidentiary sanctions, as their conduct forced EA and the court to continue to expend significant resources to address plaintiffs’ failure to meet its discovery obligations and provide basic discovery.

“A sanction of $25,000 is justified in these circumstances and acknowledges that this amount represents a significant discount from the actual attorneys’ fees incurred by EA as a result of plaintiffs’ counsel’s actions. The court finds that $25,000, coupled with the evidentiary consequences set forth above, are an appropriate sanction here.”

So, what do you think?  Was the ruling correct or were sanctions unwarranted in this case?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

eDiscovery Privilege Review in the Trump-Cohen-Daniels Saga: eDiscovery Trends

This is not a political blog and we try not to represent any political beliefs on this blog.  But, sometimes there is an eDiscovery component to the political story and it’s interesting to cover that component.  This is one of those times.

According to Bloomberg (Cohen Prosecutors Accept Neutral Review, Using Trump’s Words, written by Bob Van Voris and David Voreacos), prosecutors probing President Donald Trump’s lawyer said they are prepared to use a neutral outsider to review documents seized this month from the home and office of Michael Cohen, which was an about-face from the government’s initial plan to scrutinize the documents itself.

In a five-page letter to the judge last Thursday, prosecutors, referencing the president’s statement that Cohen was responsible for only “a tiny, tiny little fraction” of his legal work, argued that the special master’s document review could move swiftly.  Along with Cohen’s earlier acknowledgment that he had just three legal clients this year, that may have undermined the lawyer’s claim that the seized records may contain “thousands, if not millions” of privileged communications from clients, said former federal prosecutor Renato Mariotti.

In their filing, prosecutors said they now recommend a special master process proposed by retired U.S. Magistrate Judge Frank Maas (a United States Magistrate Judge for the Southern District of New York for 17 years and a frequent speaker at various conferences about eDiscovery trends and best practices) to weed out records that might be covered by the attorney-client privilege. They had previously asked that a separate team of prosecutors be permitted to review the documents first — a procedure routinely employed in other cases involving such materials.

“We believe that using Judge Maas or another neutral retired former Magistrate Judge familiar with this electronic discovery process and with experience in ruling on issues of privilege will lead to an expeditious and fair review of the materials obtained through the judicially authorized search warrants,” prosecutors said in a letter filed shortly before a court hearing scheduled for noon last Thursday.

In a separate letter filed with the court, Maas said that as special master he could analyze potential privileged materials through one of two methods. One would involve his review of a so-called privilege log, which would list all materials that any party says might be protected, as both Trump and Cohen have urged. The other would involve Maas directly reviewing the seized material himself to determine what may be privileged.

He preferred his own review, saying “privilege logs often are virtually useless as a tool to assist a judge or master, and their preparation is expensive and can cause delay.”

Prosecutors have said their probe is focused more on Cohen’s personal business and financial dealings than his legal work. They have seized documents relating to a 2016 payment made by a company Cohen set up to adult film actress Stormy Daniels, who claims to have had a tryst with Trump in 2006.

It will be interesting to see what happens from here.  And, of course, I’m talking about from an eDiscovery perspective, of course!  :o)

So, what do you think?  Should special master review to determine privilege be based on the documents themselves or should it be based on review of privilege logs?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

For a More Complete and Accurate Review, Be Persistent: eDiscovery Best Practices

Manual document review can be prone to error.  It’s easy to miss highly relevant documents or privileged documents if you fail to spot the terms that cause them to be identified as highly relevant documents or privileged.  To help spot those terms, you have to be “persistent”.  And, there’s a new review of CloudNine that you might want to check out!

By “persistent”, I’m talking about persistent highlighting, which is the topic for this week’s eDiscovery Tech Tip of the Week (see what I did there?).  :o)  Let’s face it: Failing to spot highly relevant, hot or privilege terms during document review can lead to important documents being missed or inadvertent disclosure of privileged information.  Persistent highlighting enables these important terms to be always highlighted – regardless of search criteria – enabling them to be more easily spotted during review, which improves the quality of the review process.

When a review platform offers persistent highlighting, there is typically an area where you can identify the terms that you want to always be highlighted.  Once you build that list, those terms will then always be highlighted anytime you review a document containing them, generally in a color different than the highlight color used for highlighting retrieved search terms.

Persistent highlighting can help improve the accuracy and completeness of your review and can help reduce potential inadvertent disclosures of privileged information.  To see an example of how Persistent Highlighting is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

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When evaluating an eDiscovery platform, it’s important to check out reviews of the platform so that you can gain from other perspectives on what those people like about a platform and where there are opportunities for improvement.  As we discussed previously, sites like Capterra, G2 Crowd and Gartner Peer Insights enable you to learn about actual client experiences with the platform.  And, earlier this month, we covered this free Buyer’s Guide, which reviews several eDiscovery solutions, including CloudNine, in a variety of product categories.

Now, here’s a new review of our CloudNine platform by industry thought leader Tom O’Connor.  As you may know, Tom is a long time consultant in the industry and also does some work with CloudNine, as well as participating on our webcasts with me (which has been great fun!) and writing articles.  Now, Tom has written a review of our platform that covers the full range of features, while also identifying some features he would like to see added.  So, I guess I can’t retire yet?  Thanks a lot, Tom!  ;o)  Anyway, here is a link to Tom’s review of CloudNine for your consideration.

So, what do you think?  Do you use persistent highlighting in your review processes?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.