Post Process

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Archive for the ‘Magistrate Judge Joseph C. Wilkinson Jr.’ Category

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 »