Post Process

Everything to do with E-discovery & ESI

Archive for November, 2008

Adding a New Page for General Software Tools

Posted by rjbiii on November 30, 2008

The blog has added a new page. On this page we list some general software tools. Most are very useful for our particular industry, but are also handy in a variety of areas. Enjoy, and any feedback (and, especially, additions) may be made via the comments section.

Posted in Site News | Leave a Comment »

Case Summary: Hoover; Third Party Subpoenas and the Scope of Discovery

Posted by rjbiii on November 24, 2008

Hoover v. Fla. Hydro, Inc., 2008 U.S. Dist. LEXIS 87839 (E.D. La. Oct. 1, 2008 )

The case involves a contract dispute between Louisiana resident Floyd Hoover and Florida Hydro, Inc., a Florida Corporation. Hoover brought the action, alleging that provisions of an oral contract between the parties promised Hoover a percentage of ownership for his efforts in securing funding for the company, and that these provisions were never fulfilled by the company.

Florida Hydro issued a subpoena deuces tecum to both Hoover’s mother, Mary Catherine Hoover, and his good friend, Shaun Sanghani. The subpoenas sought testimony, and forensic inspection of their personal computers, and any media in their possession (such as hard drives, flash drives, etc…) that might contain relevant data.

Hoover moved to quash the subpoenas, arguing that they are “unwarranted, unduly burdensome, and seek to harass his witnesses.” He contended that both individuals had already produced all relevant material in hard copy form. He described the subpoenas as the company’s attempt at a ‘fishing expedition, and an infringement of privacy and proprietary interests of his mother, his friend and himself. Finally, he accused the company of failing to adequately narrow the scope of the subpoenas.

Florida Hydro countered that: 1) the subpoenas are not overly broad, unduly burdensome, or harassing in nature because neither Mrs. Hoover nor Mr. Sanghani objected on that basis; 2) the subpoenas are reasonably related to the claims and are temporally limited to the relevant years; and 3) they have attempted to make production easy by offering to pick up the documents, reimburse the associated costs, granting multiple extensions, and delaying depositions.

The court concluded, over defendant’s objections, that Hoover had standing to file the Motion to Quash, because although the subpoenas were not issued to him, they sought information information that may have been sent by or for him.

The court ruled that objections to both subpoenas were filed within the requisite time period after the subpoenas were issues, and were therefore timely. The court then addressed substantive issues on the motion.

Undue Burden
Hoover contends that granting inspection and production of the computers is unwarranted and unduly burdensome. In the light of production by these witnesses of documents in hard copy form, defendant has no right to inspect ESI on the computers. Because these witnesses complied with earlier subpoenas, these newly issued subpoenas are duplicative and unwarranted, unless defendants make a definitive showing that these individuals deliberately failed in their duties to respond.

Florida Hydro disagreed, noting that neither individual objected based on Hoover’s current arguments. The company also maintained that it did not violate any rule merely by making its request that the parties produce ESI.

The court noted that upon proper objection by a third party to the inspection ordered by a subpoena, the Court must determine whether the plaintiff’s need for the inspection is sufficient to outweigh the burden imposed by the inspection on the third party.

Taking note of the fact that the objection to the subpoenas came, not from the parties served, but the plaintiff, the court stated that facts in the record clearly indicated that Mrs. Hoover had documents relevant to the case on her computer. The court also disagreed with plaintiff’s assertion that in order to challenge the completeness of Mrs. Hoover’s production, it should have filed a motion to compel, stating that a party is free to utilize the discovery method it deems appropriate. As precedent, the court cited Gabarick v. Laurin Maritime (America), Inc., No. 08-04007, 2008 U.S. Dist. LEXIS 61685, 2008 WL 3560426, at *2 (E.D.La. Aug. 11, 2008), noting that it cited Rule 26(d) for the proposition that ‘there is no priority rule for the sequence of discovery.’). The court further cited Lee v. Knutson, 112 F.R.D. 105 (N.D. Miss 1986), for the proposition that a party may choose the methods of discovery which he or she will employ, “so long as the choice is not foreclosed by the [Federal] Rules.”

While the court ruled that in the case of Mrs. Hoover, compliance the subpoena did not impose undue burden, it did state that the parties may agree upon a search protocol that would prevent personal, family, non-business related communications from being retrieved during the forensic computer inspection of her laptop and/or personal computer. The court ruled against quashing the subpoena served to Mrs. Hoover.

However, the court granted the motion to quash Mr. Sanghani’s subpoena, because the defendant’s assertions that his production in response to a motion to compel was incomplete was of a general nature, and there had been no showing of any defect in his response.

Attorney Client Privilege
The court was not persuaded by plaintiffs arguments that because he used his mother’s computer occasionally and continued to use her computer to access his email accounts as well as to transact business, including reading correspondence from his attorneys and reviewing their work product, the communications are privileged. The court noted that Mrs. Hoover did not make any such objections, and that the failure to follow the Federal Rules of Civil Procedure may result in waiver of the attorney-client privilege and/or work-product protection. The court was not convinced that a search protocol could not be designed that would enable the exclusion of any document where privilege was claimed.

Search Protocol

Plaintiff proposed a four part protocol: 1. Florida Hydro must produce a search protocol in advance of the inspection to be reviewed and approved by the Court; 2. Florida Hydro must prepare a confidentiality agreement prior to the inspection; 3. The third-party witness whose laptop is subject to the inspection shall be present during the inspection; and 4. Florida Hydro must reimburse the third party witness for all of the inspection costs, including attorney’s fees associated with same and for any damages caused by the inspection.

The court declined to accept the specific proposal, but did agree that the establishment of a protocol was appropriate, and set a deadline for an agreement between the two parties.

The court, therefore, granted the motion to quash for the subpoena issued to Mr. Sanghani, but denied the motion to quash for the subpoena to Mrs. Hoover.

Posted in 5th Circuit, Case Summary, E.D. La., Magistrate Judge Karen Wells Roby, Motion to Quash, Subpoenas, Third Parties | Leave a Comment »

Case Blurb: Hoover; Standards for Motion to Quash Subpoena

Posted by rjbiii on November 23, 2008

Rule 45 governs the issuance of subpoenas, and provides that on timely motion, the issuing court must quash or modify a subpoena if it requires disclosure of privileged or other protected matter, or otherwise subjects the subpoenaed person to undue burden. FED. R. CIV. P. 45(c)(3). Under Rule 45(c)(1), “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” FED. R. CIV. P. 45(c)(1). Furthermore, Rule 45(c)(3) further provides that “[o]n timely motion, the issuing court must quash or modify a subpoena that . . . fails to allow a reasonable time to comply.” FED. R. CIV. P. 45(c)(3).

Hoover v. Fla. Hydro, Inc., 2008 U.S. Dist. LEXIS 87839 at *4 (E.D. La. Oct. 1, 2008)

Posted in 5th Circuit, Case Blurbs, E.D. La., FRCP 45, FRCP 45(c), Magistrate Judge Karen Wells Roby, Motion to Quash, Subpoenas, Third Parties | Leave a Comment »

An Education on ESI and Records Management: Schools need a lesson plan for E-mail

Posted by rjbiii on November 2, 2008

Michael Osteman has posted a story that cites a recent survey showing some interesting numbers:

* 62% of school administrators revealed they do not have a district policy regarding e-mail communications between themselves and teachers.
* 68% of these administrators revealed they do not have a policy regarding e-mail communications between themselves and parents.

And a big one:

The survey also revealed that 90% of schools had not yet created a plan to be in compliance with the new amendments to the Federal Rules of Civil Procedure (FRCP).

Not really all that surprising, but nevertheless, always something of a jolt when see such high numbers in black & white.

Posted in Articles, Data Management, Data Retention Practices, email, Employee Practices | Leave a Comment »

(Some) Lawyers to IT: You guys deal with ESI, please.

Posted by rjbiii on November 2, 2008

An increasing number of attorneys are looking at IT departments and telling them its their job to develop and enforce policies on handling ESI, and Andrew Conry-Murray says that’s a good thing. In an article for Information Week, Mr. Conry-Murray cites a survey indicating that rising numbers of attorneys who have decided that IT owns the issue. Why is that a positive sign? From the article:

[T]he discovery problem is so complex, on both the technological and legal fronts, that IT and legal must acknowledge they need each other to manage it correctly. This survey indicates a growing recognition of IT’s critical role in an enterprise’s litigation preparedness.

Courts want to see discovery processes that are policy-driven, consistent, repeatable, and defensible (i.e., that the company has clear justifications for how it handles discovery). IT has the technological tools and the experience in driving repeatable processes and can apply them to the discovery effort — with input from legal to make sure discovery efforts meet case law precedents and withstand the scrutiny of opposing counsel.

A favorite past-time of mine is to look at how legal requirements are “mapped” to technological processes, and I find this terrain, viewed as something of a grey area between the legal and tech groups, to be the place where the ball is most often lost.

Posted in Uncategorized | Leave a Comment »

 
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