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Production

Why Does Production Have to be Such a Big Production?, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27.  Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was Monday, here’s the second part.

Redaction Issues and Confidentiality Considerations

One of the most common technical mistakes lawyers make involve issues with redactions – there are frequent stories that make the news regarding lawyers publishing documents that were improperly redacted.  Redaction issues are also the most common error in document productions in eDiscovery as well.  There are a variety of issues associated with redactions and they have considerable impact on a lawyer’s ethical duty to confidentiality.  Let’s take a look.

Image Redaction Issues

Some of the more common mistakes I see involve redaction issues on images. And they go back years. In 2009, the TSA released a manual on the Internet that had not been redacted properly. In 2013, a Chicago lawyer was reprimanded when he failed to ensure that personal information was redacted in federal student loan collection actions he filed on behalf of the U.S. government.

In 2014, a Kentucky lawyer received a public reprimand for, among other misconduct, failing to redact his client’s social security number in bankruptcy filings he made on her behalf. Also in 2014, The New York Times reportedly failed to properly redact a PDF file of leaked National Security Administration documents and inadvertently released the name of an NSA agent.

In 2018, a reporter investigating an SEC settlement with alleged fraudsters downloaded from the federal PACER database an affidavit from one of the defendants in the matter. The PDF file contained about 100 pages of financial transactions that were blacked out in the PDF file. But when the affidavit was copied and pasted into another application’s text file for uploading, the black redaction boxes vanished, revealing all the private financial information that was supposed to be hidden. A clerk at the federal courthouse where the document in question was filed said that the party filing the document was responsible for ensuring that it was properly redacted.

Also, in 2018, the school district in the Parkland, Florida high school shootings case, apparently didn’t properly redact a document regarding the alleged shooter, which contained confidential information about him.  A Florida newspaper reported that the method used “made it possible for anyone to read the blacked-out portions by copying and pasting them into another file,” which the newspaper did — drawing a contempt threat from the judge presiding over the criminal case.

More recently, lawyers for President Trump’s former campaign chairman, Paul Manafort, apparently failed to redact a federal court document properly, permitting the blacked-out text to be viewed “with a few keystrokes.”

Clearly, redaction issues on images are common. Common mistakes here include:

  1. Failing to “burn-in” the redaction on the image
  2. Not updating or re-OCRing the text files to match
  3. Providing un-redacted native files
  4. Failing to redact certain metadata
  5. Improperly using redaction software

Other Redaction Issues

The last point above involves issues for documents that have been generated in a software and then either converted or printed before redaction.

The most common type of conversion involves saving a word processing document to PDF. How do you best handle redactions in that process? Here’s a few tips:

  1. Edit out sensitive information BEFORE converting.
  2. Be aware of any metadata that may carry into the PDF file. PDF conversion deletes MOST metadata but some may transfer (eg, Comments in Word)
  3. Use non-text PDF … image only
  4. Use the most current version of Adobe

Sometimes redaction involves paper. Hard to believe but true.  Some attorneys still use a dark marker to manually cover over confidential information. Much like the Manafort case mentioned above where a simple color change in an electronic document didn’t completely hide text, using a marker on paper may also fail.

In a 2015 article, “The Perils of Redaction: Simple Steps to Protect Confidential Information,”, Mark Crandley, a partner in the litigation department of Barnes & Thornburg in Indianapolis, wrote that  “many scanners are sensitive enough to perceive covered words even when the naked eye cannot.”

Confidentiality

Lawyers have an ethical duty to preserve clients’ privileges and property. So, aside from risking potential civil liability, lawyers also could face disciplinary action when they fail to properly redact court documents. Lawyers who fail to properly redact information in confidential documents could run afoul of the American Bar Association’s rule on safeguarding client property, which has been adopted by most states.

We’ll publish Part 3 – Load File Failures – on Friday.

So, what do you think?  Have you experienced problems with document productions in eDiscovery?  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.

Why Does Production Have to be Such a Big Production?

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27.  Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

The aim of document productions in the ESI world is succinctly stated by the EDRM: To prepare and produce ESI in an efficient and usable format in order to reduce cost, risk and errors and be in compliance with agreed production specifications and timelines.  https://www.edrm.net/frameworks-and-standards/edrm-model/production/

Discussions of a “database production” typically refer to a collection of ESI loaded into e-discovery software in a form other than its native (original) format.  As a result, a load file may be necessary to organize and maintain original information about the documents and accompanying metadata. We’ll talk about those problems in more detail below but let’s be clear that production problems may revolve around other issues beyond load files.

So, why is this happening? Well the first reason is because it is an issue involving technical components and lawyers, who, by and large, simply aren’t good at technology. But lest we blame it all on the lawyers, let’s keep in mind that tech people don’t make good legal analysts. And neither of them are good communicators when it comes to technical issues so the potential for problems during productions is enormous.

DIY eDiscovery company Lexbe has listed 10 common reasons for production failures:

  1. Being unaware of the rules (FRCP/state/local)
  2. Neglecting to match review requests with your review approach
  3. Not knowing the common file deliverables in productions
  4. Missing the opportunity to use ‘Meet & Confer’ (Rule 26) to your advantage
  5. Failing to Request specific file types & metadata as needed
  6. No custodian tracking causing deduplication nightmares
  7. Not Addressing placeholders, databases, and unusual file types
  8. Negotiating incomplete discovery orders in complicated cases
  9. Stepping into redactions traps
  10. Decreasing privilege review accuracy by failing to apply Near Dup checks

In this paper, we will look at a couple of the most common issues associated with productions and discuss recommendations to minimize production mistakes:

  1. Redaction Issues and Confidentiality Considerations
  2. Load File Failures
  3. Recommendations for Minimizing Production Mistakes

We’ll publish Part 2 – Redaction Issues and Confidentiality Considerations – on Wednesday.

So, what do you think?  Have you experienced problems with document productions in eDiscovery?  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 Orders Defendants to Comply with Rule 26(a), Ditch the Boilerplate Objections: eDiscovery Case Law

In RightCHOICE Managed Care, Inc. v. Hospital Partners, Inc., No. 5:18-cv-06037-DGK (W.D. Mo. Feb. 1, 2019), Missouri District Judge Greg Kays ordered the discovery defendants to “supplement their initial disclosures so that they comply with Rule 26(a)” (within 14 days) and “either respond to Plaintiffs’ interrogatories and requests for production in good faith or specifically tailor their objections to each question or request”, as well as requiring each discovery defendant to “prepare a statement identifying the steps taken to preserve discoverable information”, among other things.

Case Background

In this case involving alleged improper billing of lab tests, the parties conferred under Federal Rule of Civil Procedure 26(f) in October 2018.  The plaintiffs served the discovery defendants with interrogatories and requests for production of documents the following week. The discovery defendants responded on November 26, objecting to every one of the plaintiffs’ questions and requests, using language like this:

“Defendant objects to this request as vague, overly broad, unduly burdensome, harassing, and/or seeking information that is irrelevant and/or not reasonably calculated to lead to the discovery of admissible evidence.”

On January 24, the Court held a teleconference hearing to discuss the dispute. During the hearing, the plaintiffs stated that the discovery defendants failed to identify any witnesses in their Rule 26(a)(1) initial disclosures, made boilerplate objections to every interrogatory, and improperly invoked the Fifth Amendment. When the Court asked the discovery defendants’ counsel whether they had produced a single document in the case, he “enthusiastically” replied, “Nope.”

As a result, the plaintiffs requested that the Court order the discovery defendants to (1) amend their initial disclosures; (2) produce responsive, non-privileged documents requested from Hospital Partners and Empower H.I.S.; (3) specify exactly which interrogatories Byrns and Perez object to on the basis of the privilege against self-incrimination; (4) answer Plaintiffs’ interrogatories in good faith or have adverse inferences drawn from their refusal; and (5) each provide a sworn statement identifying the steps taken to preserve discoverable information. Not surprisingly, the discovery defendants asked the Court to deny these requests.

Judge’s Ruling

Noting that “Rule 26(a)(1) requires litigants to provide ‘the name and, if known, the address and telephone number of each individual likely to have discoverable information’”, Judge Kays stated that the discovery defendants’ disclosures – which merely listed “corporate representative[s]” of various unnamed entities, such as “any billing/management vendors of the Defendants, with no specific reference to the information held by the entities and no address or phone numbers – “fail to comply with Rule 26(a)(1)”.  Judge Kays ordered the discovery defendants to “supplement their initial disclosures with the specific names and contact information, if known, of individuals likely to have discoverable information.”  He also indicated that they “must also provide copies of, or a list detailing, by category and location, all documents, electronically stored information, and tangible things in their possession, custody, or control that they may use to support their claims or defenses.”

Judge Kays also rejected the discovery defendants’ use of the Fifth Amendment privilege against self-incrimination, stating: “Their invocation is invalid. To begin, the Fifth Amendment does not protect Hospital Partners and Empower H.I.S. because they are artificial legal entities” (despite the discovery defendants’ claims that they are “alter egos of the individual defendants”.  As a result, he ordered defendants Hospital Partners and Empower H.I.S. “to produce relevant, non-privileged documents and respond to Plaintiffs’ interrogatories” and also ordered defendants Byrns and Perez “to produce all relevant, non-privileged business records in their possession” and to “contour their Fifth Amendment objections to each particular interrogatory, so that, if necessary, the Court can make a question-by-question judgment on the privilege’s applicability.”

As for the boilerplate objections, Judge Kays ordered the discovery defendants to “either respond to Plaintiffs’ questions and requests or tailor their objections with much greater particularity. If they assert a privilege, they must provide a privilege log.”

Finally, Judge Kays stated that the discovery defendants’ “failure to produce a single document, months into discovery, concerns the Court” and also expressed concerns about the plaintiffs’ allegations that the defendants “have not issued retention notices and {the plaintiffs} are unaware of the location of Empower H.I.S.’s records.”  As a result, Judge Kays agreed with the plaintiffs that “the Discovery Defendants each need to prepare a sworn statement detailing their efforts to preserve discoverable information” and noted that if the discovery defendants’ behavior were to continue, “the Court will consider imposing sanctions.”

So, what do you think?  Should the defendants have already been sanctioned, or is that premature?  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.

NY Appeals Court Extends Discoverability of Social Media Photos to “Tagged” Photos: eDiscovery Case Law

In Vasquez-Santos v. Mathew, 8210NIndex 158793/13 (N.Y. App. Div. Jan. 24, 2019), the New York Appellate Division, First Department panel “unanimously reversed” an order by the Supreme Court, New York County last June that denied the defendant’s motion to compel access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities and granted the defendant’s motion.

It’s rare that we can include the entire case opinion in our blog post, but, in perhaps the shortest case ruling we’ve ever covered, here is that case opinion.

“Private social media information can be discoverable to the extent it ‘contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims’ (Patterson v. Turner Const. Co., 88 A.D.3d 617, 618, 931 N.Y.S.2d 311 [1st Dept. 2011] ). Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury. That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff’s accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities (see Forman v. Henkin, 30 N.Y.3d 656, 665, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018]; see also Abdur–Rahman v. Pollari, 107 A.D.3d 452, 454, 967 N.Y.S.2d 31 [1st Dept. 2013] ).

So, what do you think?  Should discoverability of photos be extended to photos where the party is “tagged” in the photo or should privacy concerns weigh heavier here?  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 Denies Non-Party’s Request to Quash Subpoena in Telecommunications Dispute: eDiscovery Case Law

In Fair v. Commc’ns Unlimited Inc., No. 4:17 CV 2391 RWS (E.D. Mo. Jan. 16, 2019), Missouri District Judge Rodney W. Sippel denied the motion to quash discovery filed by non-party Charter Communications (Charter), finding that the plaintiff had demonstrated that she had been unable to obtain the information from the defendants, that her request was not overbroad or unduly burdensome, that the information requested would not disclose personally identifiable information (PII) and that any sensitive or confidential information could be protected with redactions or a protective order.

Case Background

In this dispute regarding alleged misclassification of the plaintiff and other technicians as independent contractors, the court previously granted conditional certification to an opt-in class of Technicians who installed cable on behalf of the defendant.  On May 11, 2018, the plaintiff served a subpoena on Charter, noticing a 30(b)(6) deposition of a corporate representative and requesting four categories of documents: (1) any agreements between Charter and defendants, (2) applications used by Charter to track technicians, (3) technician information stored in those applications, and (4) the size, number, and types of emails exchanged between Charter and defendants during a three year period representing the window of time for which potential opt-in class members would have worked for Defendants.

On July 24, Charter filed this motion to quash the plaintiff’s subpoena, representing that she sought the same information from the defendants three times, and that she had not received any responsive documents by when she served the subpoena, or by August 7, when she filed her response in opposition. After the plaintiff’s second motion to compel against the defendants was granted, they agreed to provide the plaintiff with any agreements they had with Charter, but she continued to maintain “her entire subpoena to Charter is valid.”

Judge’s Ruling

Judge Sippel addressed each of Charter’s arguments for quashing the subpoena, as follows:

  • Any agreements or emails it has exchanged with Defendants and their employees are more conveniently obtained from Defendants: “Fair sought this information from the parties three times before seeking it from Charter”;
  • Fair’s request is overbroad, because it is not related to the narrow question of how Defendants pay their employees: “Charters’ application information, agreements, and emails are also necessary to demonstrate how much control Defendants exercised over the Technicians… As a result, Fair’s request is not overbroad or unduly burdensome.”;
  • Complying with the subpoena would violate customer privacy because it would reveal the addresses of customers: “The only data that Fair seeks from the tracking applications include Technicians’ contact information, identification numbers, and time stamp data…Fair also asks that Charter “identify” certain aspects of the tracking applications, but only in general terms… Charter’s PII argument is without merit.”;
  • The requested information includes sensitive and confidential commercial information: “if any of the requested documents would disclose sensitive or confidential commercial information, Charter can protect that information with redactions or a protective order.”

As a result, Judge Sippel denied Charter’s motion to quash the plaintiff’s subpoena.

So, what do you think?  Was the judge correct in rebutting Charter’s 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.

Relying on Interpretation of the SCA, Appeals Court Reverses Subpoenas Against Facebook: eDiscovery Case Law

In Facebook, Inc. v. Wint, No. 18-CO-958 (D.C. App. Jan. 3, 2019), the District of Columbia Court of Appeals, stating that “[t]he plain text of the SCA (Stored Communications Act) thus appears to foreclose Facebook from complying with Mr. Wint’s subpoenas”, concluded that the appellee “has not established the existence of a serious constitutional doubt that could warrant application of the doctrine of avoidance” reversing the trial court’s order holding Facebook in civil contempt for refusing to comply with subpoenas served by appellee Daron Wint.

Case Background

The appellee was charged with murder in D.C. Superior Court. Before trial, he filed an ex parte motion asking the trial court to authorize defense counsel to serve subpoenas duces tecum on Facebook and a Facebook subsidiary for records, including the contents of communications, relating to certain accounts. Facebook objected, arguing that the SCA prohibits Facebook from disclosing such information in response to a criminal defendant’s subpoena. The trial court approved the subpoena request and held Facebook in civil contempt for failing to comply.

The case was argued back before the appellate court back in October 2018.

Appeals Court Ruling

In the appellate court opinion issued by Associate Judge McLeese, he noted that “In the trial court, Mr. Wint argued that if the SCA were interpreted to preclude Facebook from complying with the subpoenas at issue, then the SCA would be unconstitutional. Mr. Wint has not renewed that argument in this court, however, and that argument therefore is not before us. Rather, Mr. Wint has argued in this court only that the SCA is properly interpreted to permit Facebook to comply.”  He also noted this:

“The SCA broadly prohibits providers from disclosing the contents of covered communications, stating that providers “shall not knowingly divulge to any person or entity the contents” of covered communications, except as provided…The SCA contains nine enumerated exceptions to this prohibition…Mr. Wint does not rely on any of those exceptions, and none of them applies in the present case. The plain text of the SCA thus appears to foreclose Facebook from complying with Mr. Wint’s subpoenas.  The structure of the SCA points to the same conclusion.”

The opinion also noted that Section 2702 (Voluntary disclosure of customer communications or records) and Section 2703 (Required disclosure of customer communications or records) of the SCA “appear to comprehensively address the circumstances in which providers may disclose covered communications. Those circumstances do not include complying with criminal defendants’ subpoenas.”  The opinion also noted that “Authority from other jurisdictions also favors a plain-language reading of the SCA. As far as we have determined, every court to consider the issue has concluded that the SCA’s general prohibition on disclosure of the contents of covered communications applies to criminal defendants’ subpoenas.”

The appellee pushed for an alternative interpretation of § 2702, which addressed only the circumstances in which providers may voluntarily disclose covered communications and did not address compliance with court-ordered disclosures, such as subpoenas. In support of this interpretation, the appellee relied on six principal contentions, which were discussed in detail in the opinion. However, the opinion stated:

“Although some of Mr. Wint’s contentions have some force, on balance we are not persuaded by Mr. Wint’s argument.”

As a result, the appellate court reversed the trial court’s order holding Facebook in civil contempt for refusing to comply with subpoenas served by the appellee.

So, what do you think?  Does the SCA, which has been in effect for over thirty years, adequately the rights to request data from providers in 2019?  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 Declines to Order Plaintiff to Produce Cell Phone in Employment Discrimination Case: eDiscovery Case Law

In Santana v. MKA2 Enterprises, Inc., No. 18-2094-DDC-TJJ (D. Kan. Jan. 8, 2019), Magistrate Judge Teresa J. James denied the defendant’s Motion to Compel regarding the defendant’s request for the plaintiff to produce all of his cellphones for inspection and copying.  Judge James did order the plaintiff to “produce complete copies of all responsive text messages to the extent they have not already been produced.”

Case Background

In this employment discrimination case where the plaintiff alleged he was discriminated against, retaliated against, and terminated because of his race, the parties were unable to resolve their disputes as to Request for Production No. 21, which stated:

“Produce all cellular telephones used by you from the date your employment with Defendant started to the present for purposes of inspection and copying.”

The plaintiff objected, stating that “this request seeks irrelevant information and is not proportional to the needs of this case. The request is unduly burdensome and invasive in light of the nature of the case—Defendant has shown no need for the production of Plaintiff’s cell phone.”

Although not the subject of the motion to compel, the defendant also requested that the plaintiff “produce a full and complete copy of all text messages between (Plaintiff) and Defendant and between (Plaintiff) and current or former employees of Defendant.”  The plaintiff objected to that request as well, stating that the request “seeks irrelevant information”.

Judge’s Ruling

Judge James stated that “Defendant’s RFP No. 21 is broad in scope, requesting production of all Plaintiff’s cell phones for inspection and copying, without any limitation on the data ultimately to be produced from the copy or image of the phone(s)” and observed that “Defendant sets out no protocol or process through which the data it deems responsive would be culled from the copy or image of the phone(s) and any unresponsive and/or privileged data removed or protected.”

Judge James referenced Advisory Committee Notes to Fed. R. Civ. P. 34(a):[8], which stated (in part): “Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy… Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.”

Judge James also noted that “Defendant cites no cases involving the imaging of a cell phone and only one case in which a computer inspection and imaging was ordered” and (unlike that case), the plaintiff hadn’t shown any history of providing incomplete and inconsistent responses to production requests.  As a result, Judge James stated:

“The Court finds that Defendant’s RFP No. 21 is overly broad, unduly burdensome and not proportional to the needs and issues of this case. Defendant’s separate request for the narrowed scope of text messages also illustrates that Defendant has the ability to obtain relevant cell phone data through less invasive means. In accordance with Rule 34(a), the Court must guard against the undue intrusiveness that would result from the requested inspection and copying of Plaintiff’s cell phone(s). The Court will therefore sustain Plaintiff’s objections to RFP No. 21.”

Judge James did direct the plaintiff to “supplement his response to Request for Production No. 41 and produce complete copies of all responsive text messages to the extent they have not already been produced.”

So, what do you think?  Was the judge right or should she have compelled production of the cell phone?  Could the defendant have handled the situation differently?  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 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 Denies Defendant’s Request for Protective Order Against Producing Metadata for Medical Records: eDiscovery Case Law

I love it when a reader suggests a case for us to cover!  Thanks for the tip, Mike Hannon!

In Miller v. Sauberman, Index No. 805270/16 (N.Y. Dec. 6, 2018), New York Supreme Court Justice Joan A. Madden, despite the defendant’s estimated cost of $250,000 to produce metadata related to the plaintiff’s medical records, denied the defendant’s motion for a protective order and granted the plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.

Case Background

In this action for damages for medical malpractice, the plaintiff’s counsel indicated that she received conflicting versions of the plaintiff’s medical record, with conflicting entries for the same items on the same record for the same days and those records were provided pre-suit.  The plaintiff argued that given the materiality of the fact as to when plaintiff developed bed sores, he was entitled to the audit trail and metadata that would presumably show when plaintiff’s electronic medical record was altered and by whom.

The defendant’s Chief Information Officer indicated his understanding that the record history was a “true record audit detailing any records with modifications that took place to the records after 7/29/14”.  However, he also indicated that they had not been able to determine the “root cause of why certain fields in the EMR print differently from the electronic version as seen on the computer screen.”  The plaintiff responded by stating that the defendant failed to provide an explanation for the “alteration” of the medical records, failed to produce the metadata and the audit trail exchanged was insufficient, since it did not cover the period after plaintiff’s discharge.

On August 16 after oral argument, the Court ordered the defendant to provide an affidavit regarding various parameters, including the software and storage systems, the date and parameters of the search, accessibility of the data in other storage systems or by other software systems and the cost of producing the requested metadata.  The vendor responsible for storing and maintaining the defendant’s electronic medical records indicated that they used “a software system called ‘SQL Server Management Studio’” and the “storage system from where the audit report was generated is called ‘SQL Server 2014’”.  The vendor also stated that “[b]ased on my many years of experience in the software and information technology sector generally, and in the area of metadata extraction specifically, in my opinion the cost estimate of producting [sic] full metadata for plaintiff’s entire medical record would be approximately $250,000 if MatrixCare were to outsource it to a vendor.”  Noting that the application is a “legacy system”, he also classified that as a “reasonable estimate, that could change extremely, either up or down, based on the specifics we would learn afer [sic] hiring the team and learning more about how the system gathers data.”

Judge’s Ruling

Judge Madden stated: “Based on the foregoing, plaintiff has made a sufficient showing for the production of metadata. Defendant has yet to provide a credible explanation for the different and conflicting versions of plaintiff’s medical record…Moreover, while the audit report is intended to show ‘all edits, changes, or modifications to any single record’ from May 8, 2014 through April 10, 2018, the report produced by Village Care shows no changes or modifications. Under these circumstances, where there is no explanation for the different and conflicting versions of plaintiff’s medical record, and where the issue as to when plaintiff developed bed sores is clearly material to plaintiff’s malpractice claim, plaintiff is entitled to the metadata for his medical record to determine if the medical record was altered, and if so, when and by whom.”  As agreed to by the plaintiff, Judge Madden limited the metadata to be produced to “Village Care’s Physician Progress Notes from May 8, 2014 through July 29, 2014”.  As a result, she denied the defendant’s motion for a protective order and granted the plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.

So, what do you think?  Is it possible that it could actually cost $250K to produce metadata for a single patient’s medical records, even in a “legacy system”?  And, how do you get hired for that gig?  ;o)  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 Orders Defendants to Resubmit Production of “Inferior” Quality Documents: eDiscovery Case Law

In Dunne v. Resource Converting, LLC et al., No. 4:16 CV 1351 DDN (E.D. Mo. Oct. 30, 2018), Missouri Magistrate Judge David D. Nocel granted the plaintiff’s motion to compel and to enforce, ordering the defendants to “resubmit to plaintiff the subject low-quality documents in a non-blurry, legible form digitally accessible to plaintiff, and with the same bates-stamp numbers as the original production”.  Judge Nocel also ordered the defendants to pay plaintiff’s attorneys’ fees and expenses associated with his motion to compel, but decided that the plaintiff’s request for an independent forensic expert to preside over the technical discovery requests and responses was not warranted at this time.

Case Background

In this dispute, this Court issued an order in November 2017 granting plaintiff’s motion to compel the production of discovery documents post-dating August 21, 2015.  The plaintiff alleged that counsel for the defendants Resource Converting, LLC, Tim Danley, and Rick Kersey (“the RCI defendants”) improperly advised the RCI defendants not to search for such documents; subsequently, the Court set a compliance deadline requiring the RCI defendants to respond by December 6, 2017 and the RCI defendants then produced 24,196 pages of documents on that date.

Nonetheless, the plaintiff filed a motion, arguing that the RCI defendants had still not complied with this Court’s order, by: (1) failing to adequately search for and produce key documents, or in the alternative by deliberately removing them; (2) deliberately producing documents of an inferior quality, such that some of them are effectively illegible; (3) artificially inflating the number of documents produced and the cost to plaintiff incurred in reviewing them by producing the exact same documents multiple times; and (4) “providing vague supplemental responses to [plaintiff’s] specific requests that simply tell [plaintiff] to go fish in 24,000 pages of documents.”. The plaintiff provided unproduced email correspondence between a non-party and the RCI defendants to substantiate claim #1 above and also argued that the RCI defendants withheld insurance agreements applicable to the litigation, correspondence with their insurers, and materials related to changes to its website.  In response, the RCI defendants described the plaintiff’s motion as a “scorched-earth discovery battle” with “patently false” allegations.

Judge’s Ruling

With regard to the absence of key documents, Judge Nocel stated: “Plaintiff requests that the Court appoint an independent forensic expert to preside over the technical discovery requests and responses, as authorized by Federal Rule of Evidence 706. The parties have had several opportunities for discovery in several venues and from parties and nonparties alike, and, considering the proportionality of the Federal Rules of Civil Procedure to the needs of the case, the Court is not convinced that an independent forensic expert is warranted at this time…The RCI defendants are still obligated to supplement their production with any documents that are responsive to plaintiff’s requests, id. at (e), and they must disclose any relevant insurance agreements.”

As for the claim of inferior document quality, Judge Nocel did agree with the plaintiff that the “files were heavily pixelated to an extent that, to the Court’s perception, made some files difficult to read and others effectively illegible”.  But, he also indicated that the RCI defendants did produce the original native documents “in color, high-quality form”, “in the form of .mbox files”, but that “the .mbox file-type is not compatible with commonly-used document-review programs” and that those native files “are not bates-stamped, and so they do not correspond to the files for which plaintiff’s counsel has already spent hours reviewing and notating”.  As a result, Judge Nocel ordered the defendants to “resubmit to plaintiff the subject low-quality documents in a non-blurry, legible form digitally accessible to plaintiff, and with the same bates-stamp numbers as the original production” and also ordered the defendants to pay plaintiff’s attorneys’ fees and expenses associated with his motion to compel.

So, what do you think?  Should the defendants have had to resubmit the production?  And, should the Court have granted appointment of an independent forensic expert?  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.