Case Blurb: Prof’l Basketball Club; Burden of proving objection to discovery requests falls to movant

In opposing discovery on the grounds of overbreadth, a party has the burden “to provide sufficient detail in terms of time, money and procedure required to produce the requested documents.” A “court must be able to ascertain what is being objected to. As such, unless it is obvious from the wording of the request itself that it is overbroad, vague, ambiguous or unduly burdensome, an objection simply stating so is not sufficiently specific.” A claim that answering discovery will require the objecting party to expend considerable time and effort to obtain the requested information is an insufficient factual basis for sustaining an objection.

Here, [Producing Party] has not explained why producing the emails at issue would be unnecessarily burdensome, but merely states that producing such emails “would increase the email universe exponentially[.]” PBC also states in its moving papers that the emails add “nothing to the case except mountains of work for no return.” But a bald assertion that discovery will be burdensome is insufficient in light of Fed.R.Civ.P. 26(b)(2)(B). The Court is not permitted to presume the potential burdensome effects upon a party. The parties have already agreed upon a group of search terms that [Producing Party] previously used to search [key players'] emails and the Court assumes those terms may be used again to make further searches efficient.

City of Seattle v. Prof’l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008)(emphasis added)(citations removed).

TX Case Blurb: Honza; Court addresses objection to discovery request based on revealing confidential information, court order

[Producing Party members] seek a writ of mandamus compelling Respondent, the Honorable Greg Wilhelm, Judge of the County Court at Law No. 1 of Ellis County, to set aside a discovery order requiring the Honzas to permit a forensic expert to create a mirror image of each of the computer hard drives in the Honzas’ office in an effort to locate two particular documents or iterations of those documents…

The Honzas contend that Respondent abused his discretion because: (2) the order authorizes the disclosure of information protected by the attorney-client privilege; and (3) the order authorizes the disclosure of confidential information pertaining to the Honzas’ other clients who have no connection to the underlying lawsuit.

The present discovery dispute originated with [Requesting Party's] motion to gain access to the Honzas’ computers, which was filed about one month before trial. By this motion, [Requesting Party] sought “[i]nformation (the ‘Metadata’) contained on the actual computers of the Defendants, such as any time stamps on the Relevant Documents, versions of the Relevant Documents, if any, as well as the deletion of various versions, if any.” [Requesting Party] explained that, although the Honzas responded to a prior request for production of relevant documents in their electronic version, “the Metadata was neither produced nor made available.”

[Ed. Testimony indicated the existence of relevant documents with respect to a another transaction apparently not addressed by earlier discovery requests]

[] [Requesting Party] sought discovery of relevant documents pertaining to the [newly revealed] transaction, and the [Producing Party] complied by providing pertinent written discovery.

[Requesting Party] seeks the metadata from the [Producing Party's] hard drives because it wants to identify the points in time when the partial assignment draft was modified in relation to the diary entry. This goes to the issue of whether [the Producing Party] altered the partial assignment after the parties concluded their agreement but before the document was presented for execution.

[Ed. The opinion then went on to list various Federal and State sources for persuasive authority in discovery law, especially with respect to ESI]

Privileged or Confidential Information

The [Producing Party] also contend[s] that the discovery order improperly authorizes the disclosure of (1) information protected by the attorney-client privilege and (2) confidential information pertaining to the Honzas’ other clients who have no connection to the underlying lawsuit.

Notwithstanding the “unlimited” access necessarily granted the forensic expert, Respondent’s order preserves any privileged or confidential information in several ways. First, the expert is limited in his search to two specific documents or iterations of those documents. [Members of the Producing Party] are then accorded the right to review the documents and information which the expert believes responsive and produce to [Requesting Party] only those documents and information which [members of the Producing Party] themselves believe are responsive. These provisions effectively preclude [Requesting Party] from having any access to documents or information pertaining to other clients of the Honzas not involved in this litigation.

Second, the order allows the [Producing Party executives] to withhold from discovery any documents or information which they claim to be privileged or confidential and provide instead a privilege log, subject to in camera review by Respondent.

Finally, the order provides that: (1) the observation of information by [Requesting Party] representatives during the imaging process shall not constitute a waiver of privilege or confidentiality; (2) all participants in the imaging process are subject to a protective order prohibiting the unauthorized disclosure of information; and (3) [Requesting Party's] expert must provide proof of being bonded and of having commercial liability insurance by which the [Producing Party] may be “fully indemnified against any monetary loss.”

For these reasons, we hold that Respondent appropriately tailored the discovery order to prohibit the unauthorized disclosure of privileged or confidential information and no abuse of discretion is shown.

[Ed. Note that a dissenting opinion is also entered by one of the Judges hearing the case. See the order itself for the full text of that dissent, or of the opinion itself.]

In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007)

TX Case Blurb: Honza; Court addresses objection to ‘overly broad’ discovery requests, court order

[Producing Party members] seek a writ of mandamus compelling Respondent, the Honorable Greg Wilhelm, Judge of the County Court at Law No. 1 of Ellis County, to set aside a discovery order requiring the Honzas to permit a forensic expert to create a mirror image of each of the computer hard drives in the Honzas’ office in an effort to locate two particular documents or iterations of those documents…

The Honzas contend that Respondent abused his discretion because: (1) the discovery order is overbroad and authorizes an improper “fishing expedition”;…

The present discovery dispute originated with [Requesting Party's] motion to gain access to the Honzas’ computers, which was filed about one month before trial. By this motion, [Requesting Party] sought “[i]nformation (the ‘Metadata’) contained on the actual computers of the Defendants, such as any time stamps on the Relevant Documents, versions of the Relevant Documents, if any, as well as the deletion of various versions, if any.” [Requesting Party] explained that, although the Honzas responded to a prior request for production of relevant documents in their electronic version, “the Metadata was neither produced nor made available.”

[Ed. Testimony indicated the existence of relevant documents with respect to a another transaction apparently not addressed by earlier discovery requests]

[] [Requesting Party] sought discovery of relevant documents pertaining to the [newly revealed] transaction, and the [Producing Party] complied by providing pertinent written discovery.

[Requesting Party] seeks the metadata from the [Producing Party's] hard drives because it wants to identify the points in time when the partial assignment draft was modified in relation to the diary entry. This goes to the issue of whether [the Producing Party] altered the partial assignment after the parties concluded their agreement but before the document was presented for execution.

[Ed. The opinion then went on to list various Federal and State sources for persuasive authority in discovery law, especially with respect to ESI]

Overbroad Discovery

The [Producing Party] first contend that the discovery order is overbroad and authorizes an improper “fishing expedition.” In this regard, they argue that Respondent improperly “gave blanket approval for [the Requesting Party] to gain total access to [their] computers and all information stored on them, whether or not it has anything to do with this lawsuit.”

Although it is true that Respondent’s order gives A & W’s forensic expert [FN8]complete access to all data stored on the Honzas’ computers, the order provides that the expert is to index all forensic images acquired from the imaging process “for the limited purpose of searching (the ‘Examination Process’) for two documents, previously Bates-labeled as HONZA 00019 and HONZA 00017, which are drafts of “Assignment of Contract” and any iterations (the ‘Relevant Documents’).” The expert must then compile any documents or information which the expert believes responsive and deliver them to the Honzas to determine for themselves which are responsive to A & W’s discovery request and which they choose to withhold, providing a privilege log instead.

In addition to limiting the expert’s search to two specific documents, the order provides that no waiver of privilege or confidentiality occurs if any otherwise privileged or confidential information is observed by A & W’s counsel or representatives during the imaging process, and they are prohibited from using such information other than in compliance with the terms of the order. The forensic expert is likewise prohibited from disclosing any information observed during the imaging process. And finally, the order requires the expert and all party representatives or counsel participating in the imaging process to sign an acknowledgment agreeing that they are subject to contempt of court for any violation of the order.

Any order requiring the imaging of a computer hard drive necessarily grants the expert who is conducting the imaging process access to all data on that hard drive. Here, Respondent specifically limited the expert’s search to two documents; gave the [Producing Party] a “right of first refusal” with regard to determining which documents or information are relevant to those two documents and responsive to [Requesting Party's] discovery request; imposed stringent limitations on inadvertent disclosures to prevent any unintended waiver of confidentiality or privilege; and placed all participants in the imaging process under a carefully drawn protective order.

Therefore, we do not agree with the Honzas’ contention that the discovery order is overbroad.

[Ed. Note that a dissenting opinion is also entered by one of the Judges hearing the case. See the order itself for the full text of that dissent, or of the opinion itself.]

In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007)

TX Case Blurb: Honza; Court outlines process for Forensic Expert’s access to Party’s hard drive and subsequent production

[Producing Party members] seek a writ of mandamus compelling Respondent, the Honorable Greg Wilhelm, Judge of the County Court at Law No. 1 of Ellis County, to set aside a discovery order requiring the Honzas to permit a forensic expert to create a mirror image of each of the computer hard drives in the Honzas’ office in an effort to locate two particular documents or iterations of those documents…

The Honzas contend that Respondent abused his discretion because: (1) the discovery order is overbroad and authorizes an improper “fishing expedition”; (2) the order authorizes the disclosure of information protected by the attorney-client privilege; and (3) the order authorizes the disclosure of confidential information pertaining to the Honzas’ other clients who have no connection to the underlying lawsuit.

The present discovery dispute originated with [Requesting Party's] motion to gain access to the Honzas’ computers, which was filed about one month before trial. By this motion, [Requesting Party] sought “[i]nformation (the ‘Metadata’) contained on the actual computers of the Defendants, such as any time stamps on the Relevant Documents, versions of the Relevant Documents, if any, as well as the deletion of various versions, if any.” [Requesting Party] explained that, although the Honzas responded to a prior request for production of relevant documents in their electronic version, “the Metadata was neither produced nor made available.”

[Ed. Testimony indicated the existence of relevant documents with respect to a another transaction apparently not addressed by earlier discovery requests]

[] [Requesting Party] sought discovery of relevant documents pertaining to the [newly revealed] transaction, and the [Producing Party] complied by providing pertinent written discovery.

[Requesting Party] seeks the metadata from the [Producing Party's] hard drives because it wants to identify the points in time when the partial assignment draft was modified in relation to the diary entry. This goes to the issue of whether [the Producing Party] altered the partial assignment after the parties concluded their agreement but before the document was presented for execution.

[Ed. The opinion then went on to list various Federal and State sources for persuasive authority in discovery law, especially with respect to ESI]

Under these decisions, the following protocol is generally followed. First, the party seeking discovery selects a forensic expert to make a mirror image of the computer hard drives at issue. This expert is required to perform the analysis subject to the terms of a protective order, generally prohibiting the expert from disclosing confidential or otherwise privileged information other than under the terms of the discovery order.

After creating the mirror images and analyzing them for relevant documents or partial documents, courts typically require the expert to compile the documents or partial documents obtained and provide copies to the party opposing discovery. That party is then to review the documents, produce those responsive to the discovery request, and create a privilege log for those withheld. Finally, the trial court will conduct an in-camera review should any disputes arise regarding the entries in the privilege log.

Because our research has disclosed no Texas decisions regarding this type of electronic discovery, we will apply these fairly uniform procedures to the issues presented in this proceeding.

[Ed. Note that a dissenting opinion is also entered by one of the Judges hearing the case. See the order itself for the full text of that dissent, or of the opinion itself.]

In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007)

Case Blurb: Benefirst; Good Cause Analysis-Seventh Factor

[Ed.-The court found that medical claim forms, requested by Plaintiff, would not be reasonably accessible. It then launched into an analysis to determine whether plaintiffs proved that “good cause” existed to compel production notwithstanding the accessibility issue. This blurb is from the analysis of seven factors. These are factors four and five: The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; and Predictions as to the importance and usefulness of the further information;]

The parties resources.

While the Defendant has understandably engaged in a lengthy discussion of the cost of production, neither party has provided the court with any information about their resources. BeneFirst does represent that they no longer have a full time staff and that in order to retrieve the images that they would have to hire temporary help. At the same time, as previously noted, the Plaintiffs have significantly narrowed the breadth of their request and therefore, the time and cost for BeneFirst to produce the requested information should be significantly reduced.

Given the lack of information available to the Court, this factor is neutral.

W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007)

Case Blurb: Benefirst; Good Cause Analysis-Fourth & Fifth Factors

[Ed.-The court found that medical claim forms, requested by Plaintiff, would not be reasonably accessible. It then launched into an analysis to determine whether plaintiffs proved that “good cause” existed to compel production notwithstanding the accessibility issue. This blurb is from the analysis of seven factors. These are factors four and five: The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; and Predictions as to the importance and usefulness of the further information;]

I agree with the Plaintiffs that the requested claim forms and medical bills are clearly an integral part of the litigation; the requested information goes not only to BeneFirst’s culpability, but also to the amount of damages, if any, to which the Plaintiffs may be entitled. There can be no serious contention that the information is not highly relevant. In fact, it is difficult to imagine how this case could be prosecuted or defended without the claims forms and attendant bills. As previously found, they are not available from any other source (a determination which is uncontroverted).

These factors favor the Plaintiffs.

Case Blurb: Benefirst; Good Cause Analysis-Two factors on redundancy and availability of data

[Ed.-The court found that medical claim forms, requested by Plaintiff, would not be reasonably accessible. It then launched into an analysis to determine whether plaintiffs proved that "good cause" existed to compel production notwithstanding the accessibility issue. This blurb is from the analysis of seven factors. These are factors two and three: The quantity of information available from other and more easily accessed sources; and The failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources.]

The gravamen of the Plaintiffs’ Amended Complaint is that BeneFirst mishandled their employees’ medical claims by failing to determine eligibility for payment, the availability of co-payment and co-insurance, and subrogation. The processing of the claim forms was presumably the mechanism for making these determinations. While the Amended Complaint and subsequent pleadings are silent, the relevant time period appears to be from 2001 to 2004.*

*I so find because this litigation was commenced in 2005 and it seems safe to assume that none of the original claim forms and medical bills were still in existence at that time (if they were, BeneFirst presumably would have retained them).

According to BeneFirst, the original claim forms and medical bills were processed by hand, kept for 60 days, converted to a digital image and then destroyed. Therefore, digital images which constitute the information requested by the Plaintiffs are in the custody and control of BeneFirst and are not available through any other source.

These factors favor the Plaintiffs.

W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007)

Case Blurb: U & I; Court wants Producing Party to clearly demonstrate irrelevance

[Producing Party] U & I argues in its motion for protective order that requiring [third party] Zimmer Spine to comply with the subpoena would be unduly burdensome, basically because the parties have already exchanged over 6,000 pages during discovery. U & I does not specify how Zimmer Spine’s compliance with a subpoena that AMD propounded would impact or burden U & I. Instead, U & I submits that the requests are irrelevant because U & I preserved AMD’s contractual rights in its distribution agreement with Zimmer Spine.
[...]
As a party to the case, U & I has standing to move for a protective order under Rule 26, Fed.R.Civ.P., if the subpoena seeks irrelevant information. See Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231F.R.D. 426, 429-30 (M.D.Fla.2005). Nevertheless, the party seeking a protective order still has the burden to demonstrate good cause, and must make a “particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements” supporting its need for the protective order.

U & I has not demonstrated good cause for the protective order it seeks…

U & I Corp. v. Advanced Medical Design, Inc., 2007 WL 4181900 (M.D.Fla. Nov. 26, 2007) (internal citations removed, emphasis in the original)

Dealing with Search Criteria

A recent post of ours cautioned readers to be careful on formulating, and to use some method of verifying, their initial assumptions. We refer to initial assumptions with respect to EDD as assumptions on keywords, effective date ranges, and data sources that must be preserved for an electronic discovery project.
Law.com has posted an article discussing keyword searches, and calls attention to one danger of not carefully considering the formulation of search criteria:

The results of a recent e-discovery keyword search should have come as no surprise. Working on a case related to a specific transaction, the attorneys requested production of all documents containing the word “buy.” Despite being cautioned against this broad search, they were reluctant to heed the warnings, and many unrelated documents were incorrectly deemed responsive. Unfortunately, it takes a $750,000 mistake like this one for some people to understand the benefits of using a strategic approach to keyword selection.

If this had been my project…well, never mind. As I have said repeatedly, it is essential for the initial assumptions used in extracting data for review to be thoroughly vetted, because the filter ultimately determines what documents the reviewer sees. Searches that are too broad cost time and money. Searches that are too narrow will miss vital data, and could cost the client even more in the long term (by skipping over helpful information or by landing them in hot water with the judge). The importance of the process of building a verifying a list should not be underestimated.

That said, keywords are not the panacea. New technologies, using concept-based ontologies and techniques continue to evolve, and will move us beyond the era of the boolean keyword search.

Qualcomm mess ‘contaminates’ Day Casebeer partner

We posted an extensive discussion of the Qualcomm case in our second installment of e-discovery pitfalls. Now, law.com posts an article stating a Day Casebeer partner is “highly contaminated.”

In the fallout from a high-stakes discovery meltdown involving Qualcomm Inc., Day Casebeer Madrid & Batchelder partner Lee Patch has emerged highly contaminated.

According to fresh declarations filed Wednesday, Patch signed off on a junior Day Casebeer partner’s decision to withhold 21 potentially damaging e-mails from Qualcomm’s litigation opponent, Broadcom Corp.

But when the trial judge asked Patch about the e-mails days later, Patch created the impression he did not know they existed, his declaration said. Patch also told the judge that neither he, nor his colleagues, had made any determination about whether the e-mails should be turned over.

If you don’t think this is serious, take some time and read EAT WHAT YOU KILL, by Milton Reagan, Jr., describing the fall (and incarceration) of a prominent N.Y. state bankruptcy attorney, for basically lying to the court (by omission).
Judges hate it if they think they’re being lied to. No allegations of misconduct have been proven, and everyone deserves due process, so this isn’t to say that Mr. Patch or his associates has been proven to acting unethically or unlawfully. To continue:

Bier and Mammen told Patch they did not believe the e-mails were responsive. Patch concurred — but he never read the e-mails himself, his declaration says.

Day Casebeer therefore did not notify Broadcom of the e-mails. But 10 days later, a Qualcomm employee mentioned them on the stand during cross-examination.

Ultimately over 200,000 pages of relevant documents were found that hadn’t been produced. This seems to be an extreme case, but what it does illustrate (or will illustrate, should serious sanctions be the result result) is that in this age of computer forensics, non-deleted deleted files, and easy distribution, it isn’t worth the risk for attorneys to conspire to conceal evidence, no matter how harmful it may be for the client.