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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 »

Case Blurb: Ahner; Attorney-Client Privilege Basics

Posted by rjbiii on October 17, 2008

Once the proponent has properly asserted the privilege claim and the requisite information about the allegedly privileged document provided to the opponent, the proponent must substantiate all actual assertions about the claim. This is usually done through supporting affidavits from individuals with personal knowledge of the relevant facts, exhibits attached to the motion and briefs, discovery responses, pleadings and other undisputed facts…. To the extent that evidentiary support for the factual basis of the privilege is not forthcoming, the claim is little more than a bald, conclusory, or ipse dixit assertion. The court will deny such an assertion because it forecloses meaningful independent inquiry by the finder of facts (the judge) into the validity of the claim…. Although an attorney’s word may be “taken on its face,” a privilege claim is not self-executing. It requires more proof than a conclusion by the party asserting the claim (or his attorney) that it is justified.
Thus, any objection based on Rule 26(b)(3) may ultimately be sustained only if the objection is both properly asserted and the facts supporting it are established by evidence. [Movant] bears the burden of proof on this claim.
The mere assertion of a lawyer in oral argument that materials were prepared in anticipation of litigation is not evidence sufficient to bear the burden.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *4 (E.D.La. Aug. 29, 2007) (citing P. Rice, Attorney-Client Privilege in the United States § 11:10 at 977-80 (Lawyers Cooperative 1993))(emphases in the original)

Posted in 5th Circuit, Attorney Client Privilege, Case Blurbs, E.D. La., FRCP 26(b), Magistrate Judge Joseph C. Wilkinson Jr. | Leave a Comment »

Case Blurb: Ahner; Primary Factor of Undue Burden Turns on Storage Format of Documents

Posted by rjbiii on October 17, 2008

[W]hether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production). In the world of paper documents, for example, a document is accessible if it is readily available in a usable format and reasonably indexed. Examples of inaccessible paper documents could include (a) documents in storage in a difficult to reach place; (b) documents converted to microfiche and not easily readable; or (c) documents kept haphazardly, with no indexing system, in quantities that make page-by-page searches impracticable. But in the world of electronic data, thanks to search engines, any data that is retained in a machine readable format is typically accessible.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *4 (E.D.La. Aug. 29, 2007) (citing Shira A. Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?, 41 B.C. L.Rev. 327, 364 (2000)).

Posted in 5th Circuit, Case Blurbs, E.D. La., Judge Shira A. Scheindlin, Magistrate Judge Joseph C. Wilkinson Jr., Reasonably Accessible, Undue burden or cost | Tagged: | 2 Comments »

Case Blurb: Ahner; Objection on Relevance due to Form of Production Requested not Valid

Posted by rjbiii on October 17, 2008

[I]t is not a valid ground for objection that relevant, non-privileged, electronic data can be produced in paper form, when the requesting party has specified production in an electronic format.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *4 (E.D.La. Aug. 29, 2007) (internal citations removed)

Posted in 5th Circuit, Case Blurbs, E.D. La., Form of Production, Magistrate Judge Joseph C. Wilkinson Jr., Relevance | Leave a Comment »

Case Blurb: Ahner; Fact that Producing Party is Testifying Witness Magnifies Need for Disclosure During Discovery

Posted by rjbiii on October 17, 2008

[Producing Party] argues…Rule 26(b)(4) precludes the [Requesting Party] from seeking information from it by subpoena because it is [Plaintiff’s] retained expert and its former employee, Nickie G. Cammarata, has been listed as an expert trial witness by [Plaintiff]. On the contrary, [Producing Party’s] status as a party’s testifying expert makes it more important, not less, that the facts and documents underlying its opinions be disclosed in response to a valid discovery request.

Indeed, Rule 26(a)(2) provides that parties must initially disclose, without awaiting a discovery request, the identity of any expert witness, “the data or other information considered by the witness in forming the opinions; [and] any exhibits to be used as a summary of or support for the opinions.” Although this court’s scheduling order altered the deadline imposed by the Federal Rules by which parties must provide their expert reports, underlying data and exhibits, neither that order nor Rule 26(b)(4) precludes the [Requesting Party] from propounding a subpoena duces tecum that seeks such underlying information as already exists. Rule 26(b)(4) only restricts when a party may depose its opponent’s testifying and non-testifying experts or propound interrogatories to its opponent’s non-testifying experts; it does not limit document requests.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *3 (E.D.La. Aug. 29, 2007) (internal citations removed)

Posted in 5th Circuit, Case Blurbs, Duty to Produce, E.D. La., Expert Witness, FRCP 26(a), FRCP 26(b), Magistrate Judge Joseph C. Wilkinson Jr. | Leave a Comment »

Case Blurb: Ahner; Production of Paper Version does not necessarilly Preclude Requirement to Produce ESI

Posted by rjbiii on October 17, 2008

“The mere fact that information which as a matter of ordinary course of one’s business is electronically stored has been produced in functional equivalent, such as through hard copy, does not in and of itself excuse a party from producing the requested information in electronic form.” Cornell Research Found., Inc. v. Hewlett Packard Co., 223 F.R.D. 55, 73 (N.D.N.Y.2003) (citing Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94CIV.2120, 1995 WL 649934, at *2 (S.D.N.Y. Nov. 3, 1995) (citing 8A Wright, Miller & Marcus, Federal Practice and Procedure § 2218, at 452 & n. 13)). [Producing Party] has not provided any evidence to support its assertion that the authenticity of its engineering opinions, which were issued in final form this case in January, March and July 2006, might be compromised if the [Requesting Party] were permitted to discover its electronic files. Thus, Rule 45(d)(1)(C) does not relieve [Producing Party] of its obligation to respond to the subpoena duces tecum by producing its relevant, non-privileged, electronically stored information in the requested electronic form.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *2 (E.D.La. Aug. 29, 2007)

Posted in 5th Circuit, Case Blurbs, E.D. La., Form of Production, FRCP 45(d), Magistrate Judge Joseph C. Wilkinson Jr. | Leave a Comment »

Case Blurb: Ahner; Party Seeking Protective Order must make Specific, Factual Demonstration

Posted by rjbiii on October 17, 2008

A party…who seeks a protective order has a burden to make “a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements,” in support of its motion.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 (E.D.La. Aug. 29, 2007) (internal citations removed)

Posted in 5th Circuit, Case Blurbs, E.D. La., Magistrate Judge Joseph C. Wilkinson Jr., Protective Order | Leave a Comment »