Litigation Support Tip of the Night

July 15, 2019

The Federal Rules of Civil Procedure set down specific guidelines for the redaction of trial transcripts.  The following information must be redacted from a transcript:

1. Social security numbers (the last four digits can be left unredacted).

2. Birth dates (the year can be left unredacted). 

3. The names of minor children (initials can be used). 

4. Financial account numbers (the last four digits can be left unredacted).  

   See, Fed. R. Civ. P. 5.2(a).  The parties have 7 days from the filing of the notice of the filing of the official transcript to file a notice to request the redaction of these four types of information from the transcript.  A copy of the notice must be served on the reporter.   See the example posted on the site of the United States District Court for the Southern District of New York.

A statement indicating what is to be redacted must be filed 21 days after this notice.  Guidelines posted to the sites of the United States District Court for the Eastern District of North Carolina and United States District Court for the District of Colorado indicate that statements should contain references in this form: 

Social Security Number 123-45-6789 on page 12, line 9 should be redacted to read xxx-xx-6789.

The United States District Court for the Southern District of New York has posted a form on its site which breaks the information down in a chart:

If the parties wish to redact any other information, they must file a motion to do so within the same 21 day period.  After an order has been issued for further redactions, the reporter then performs the redactions by the date stated in the order.   The redacted version of the transcript (or the original if no redactions are performed) is released on PACER after 90 days.   Only attorneys who pay for transcripts, and court users can have access to the transcript before this 90-day period is up, unless the public terminal at the courthouse is used to view the transcript.  

Some courts restrict access to the transcript of the voir dire proceeding in order to avoid the need to request the redaction of the personal information of jurors. 

May 8, 2019

Late last month, the United States Court of Appeals for the Seventh Circuit issued a decision, Stephens v. Baker & McKenzie, Nos. 18‐2375 & 18‐2963 (7th Cir. Apr. 26, 2019) affirming a district court ruling granting the defendant's motion for attorney's fees and its motion to strike a defamatory filing.  Among other lessons that can be drawn from this decision, it shows how strictly the federal courts will enforce discovery obligations under Rule 37.  

The appellant was employed as a paralegal with Baker & McKenzie.  Her suit alleged that she was fired because reported being sexual harassed and mocked on the basis of her Russian ethnicity.   She sought $200 million in compensatory, emotional and punitive damages. 

Stephens failed to comply with two discovery requests.  The first concerned information about how she gained access to the firm's confidential listserv (which she accessed after she left).  The second asked that she account for the damages she demanded.   Rather than answer either of these requests, Stephens asked the court to dismiss her suit, even though she was given the option to seek $100,000 in damages instead.  The lower court, "ruled that whether Stephens had used a confidential listserv for personal reasons was relevant to Baker & McKenzie’s defense, so it ordered Stephens either to explain how she acquired the list or surrender her computer so the firm could investigate."  Id. at 4.   Stephens explained that she did not want Baker to have access to her computer.  

The defamatory filing was Stephens' response to a motion to compel, which McKenzie never had a chance to reply to because the suit was dismissed.   Baker was awarded more than $35,000 in fees.  The Seventh Circuit rejected Stephens' appeal specifically because of her refusal to comply with the court's discovery order.  It cited Federal Rule of Civil Procedure 37(b)(2)(C) which requires a party rejecting such an order to pay, "reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.”

The Seventh Circuit also rejected an appeal of the motion to strike, holding that the district court's broad discretion to strike filings allowed it to strike a filing the plaintiff abandoned and which the court never actually considered. 

So even when a paralegal goes up against one of the biggest law firms in the country, she or he may still held accountable for failing to take discovery obligations seriously. 

November 29, 2016

Tonight I attended a presentation at the Benjamin N. Cardozo School of Law of Yeshiva University, hosted by the Cardozo Data Law Initiative and the Sedona Conference.   The panel consisted of Judge Ron Hedges, (a former Magistrate Judge for the U.S. District Court for the District of New Jersey); Steve Bennett, a partner with Park Jensen Bennett LLP; Matt Knouff, eDiscovery Counsel at Complete Discovery Source; and Ariana Tadler, a partner at Milberg LLP.   The presentation reviewed the impact of the December 1, 2015 amendments to the Federal Rules of Civil Procedure.  The materials are part of the Sedona Conference's training program, which included a PowerPoint slideshow with video clips of judges discussing their views on the meaning of the revised rules.  The following are my rough notes on the discussion.

Knouff began the presentation by discussing the data explosion that has taken place since the previous revision of the rules in December 2006.   Facebook and Twitter started in 2006, (actually the former just became widely available that year), and Hadoop was introduced in 2007.   Microsoft reports that for an average case it preserved 48 million pages; collects 13 million pages; and reviews 645,000 pages.   The presentation reviewed the history of the process of arriving at the 2015 amendments, which involved the initial conference at Duke in 2010; public hearings in D.C., Phoenix, and Dallas with testimony by 120 witnesses; and more than 3000 submitted comments - far more than the usual number.    Tadler noted that the proposed rules were perceived as being pro-business, and that an rough mix of comments from both plaintiff and defense lawyers were received.   

Judge Hedges noted that new rules effecting service and deadlines under the rules will come into effect this week.  

The group emphasized the key goals of the December 2015 amendments:

1. Cooperation

2. Early case management

3. Changing the scope on the basis of relevancy and proportionality.

4. Establishing national sanctions standards. [or curative / remedial measures, as Rule 37 doesn't actually use the term 'sanctions'.]

The group noted Judge Lee Rosenthal (S.D. Tex.) has stated that despite the committee note to FRCP 1 stating, "Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure.", parties should not even think of filing motions on the basis of opposing counsel not being cooperative.  Rule 1 only states an expectation.  It's declaratory.    

Judge Hedges noted that the key ethical guidelines were the counsels' duty of candor to the tribunal under Model Rule of Professional Conduct 3.4  and duty of candor to the tribunal under Rule 4.4.     He also referred to the California Bar's Formal Opinion No. 2015-193 which stated that lawyers had an ethical obligation to understand electronic discovery technology.   He recommended reviewing the Sedona Jumpstart Outline, co-authored by Tadler, which provides an outline of issues to discuss with clients on preservation problems and responses to requests for production.    Bennett noted that the notes to the ABA's Rule 1.1 also discuss the need to be aware of, "benefits and risks associated with relevant technology".  

Judge Hedges has noted that local rules have expanded on the cooperation requirement and specifically referenced the rules specific to Judge Paul Grimm's  (D. Md.) chambers, which I believe are posted here, and state that. "Whether a party or counsel has cooperated during discovery also will be relevant in determining whether the Court should impose sanctions in resolving discovery motions."    Since the Sedona Cooperation Proclamation was issued in July 2008, 150 state and local judges have endorsed it, and it has been cited in 50 published opinions.  

Judge Hedges recommended that Judge Peck's Rule 502(d) template order  be used to address the clawback of inadvertently produced privileged documents.   

Knouff noted that while Rule 34 document requests can be delivered 21 days after a summons is served, they are not actually considered served until the Rule 26(f) conference takes place.    He noted that FRCP 34(b)(2)(c) requires objections to be stated when data is withheld.    Bennett speculated that it might be possible to make 'reserve objections' in case later view of data indicates they are needed, but Judge Hedges brought up that this could fall afoul of the FRCP 26(g) certification requirement.   Knouff pointed out the District of Kansas decision (in Rowan v. Snowflower ?) that allows for the specification of data searches as basis for indicating what data is being withheld, as an alternative to the privilege log format that would list individual documents withheld.

The group provided this sample objection as good an example of what can be used to respond to a document request:

Tadler cautioned this should not be used as a boilerplate for any case as salary information could be relevant for employment cases.  Judge Hedges faulted this form response for not listing a basis for withholding 17 pages of files.    

Jim Daly of Seyfarth Shaw LLP was in the audience and pointed out that the SEC, DOJ, and FCC have specific requirements for the forms of production which are in the Code of Federal Regulations.  

Steve Bennett noted the comment to FRCP 26(b)(1) which states, "Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available." is a reference to the use of TAR which he predicted would be become the dominant form of review in the next 10 years.   Judge Hedges questioned this because he said that at least 9 out of 10 cases don't involve large document productions.   Running keyword searches might be sufficient in smaller scale cases.   The judge made a reference to 17,000 documents as being the break even point for TAR, which is a possible reference to a max size for a seed set.   See this posting on the Catalyst site

Judge Hedges complained about the fact that in attempting to use letters rogatory to obtain overseas production, he only found out after 11 months that France wasn't going to provide the production.   

In a video clip, Judge Craig Shaffer of the District of Colorado noted that Rule 26(b) would have to be applied against the backdrop of FRCP 1's admonition to construe, administer and employ the rules for the just, speedy, and inexpensive determination of every proceeding.  

Judge Hedges warned against conceiving of proportionality just in terms of dollars and cents and warned that other factors had to be considered as well.   

In a video clip Judge Jeffrey Sutton of the 6th Circuit (the Chair of the Standing Committee on the Rules of Practice and Procedure) remarked upon how the removal of the language in FRCP 26 about the scope of discovery including data reasonably calculated to lead to the discovery of admissible evidence, effected the relevancy of the SCOTUS case Oppenheimer v. Sanders, which was based on a version of the Rule including this language.     He criticized some judges for continuing to cite this precedent after December 2015.   

The group acknowledged that the amendment to FRCP 37 was intended to address the finding in Residential Funding Corp. v. DeGeorge Fin. Corp., by the Second Circuit that sanctions could be imposed for the negligent failure to preserve. 

Judge Hedges said that he disagreed with Judge Francis' dicta opinion asserting that judges still have the inherent authority to sanction.


The video presentations alos consisted of comments by Judge David Campbell of the District of Arizona; and Judge Joy Conti of the Western District of Pennsylvania.

October 14, 2016

A U.S. District Court judge in Shaffer v. Gaither, 14-0106 (Sept. 1, 2016 W.D.N.C.) ruled this past September on the plaintiff's failure to preserve text messages on her phone.    The court denied the defendant's motion to dismiss which was based on her failure to preserve ESI, that the court could not conclude was intentional.   The messages on the phone were relevant to a defamation claim which alleges that the plaintiff's employer stated she was fired for having a sexual relationship with a married man.   The plaintiff was an Assistant District Attorney and the person with whom she had the relationship was a defense attorney.   The relationship itself was not denied, just the basis for her termination of employment.

The text messages on the plaintiff's phone were said to contain statements in which the plaintiff conceded the relationship was the reason for her dismissal.   The plaintiff's phone was unavailable because she damaged it in a bathroom, and she turned it over to her insurer.   The case is interesting because of what it shows about the recoverability of text messages and how a court will interpret the recently amended F.R.C.P. 37 

The plaintiff's service provider could not produce copies of the text messages.  It only kept records of when text messages were sent.  There were no back-ups of the texts in cloud storage.  Forensic techniques could not recover the body of the texts from the available SIM card.  [Oddly, the court's decision does not indicate whether or not attempts were made to recover the phone from the insurer.]  

The plaintiff's phone was broken more than a year after she had first threatened litigation.   The court noted that FRCP 37 requires that steps be taken to preserve ESI when litigation is reasonably anticipated, but stated that dismissal should not the first resort.    FRCP 37(e) requires courts to only take such action as necessary to cure the prejudice resulting from the lost ESI.    It did not conclude the plaintiff's destruction of her phone was intentional.  It set aside the question of whether any sanctions at all were necessary because other witnesses were available who had seen the text messages - more than just the plaintiff and a single recipient.   The need for sanctions was to be determined after witness testimony before a jury on the content of the messages and the circumstances of the phone's loss.  

The court's recommended  preservation techniques for counsel consisted of, "printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one."

April 16, 2016

This is a continuation of last night's tip when I compared Rule 26(f) plans freely available on the web from the Eastern District of North Carolina; the District of Minnesota; the Western District of Texas; and a form on the site for the District of New Jersey.  

 

6. Deposition and Interrogatory Limitations.   The discovery plan form from the District of New Jersey indicates that the parties should state limitations on the number of interrogatories that can be exchanged and the number of depositions that can be taken.   The plan from the Eastern District of North Carolina limits the parties to not just 30 interrogatories, but also 30 requests for admissions, and 30 requests for production.  It also gives specific time limits for the 8 depositions each party is allowed to take.   The District of Minnesota plan includes a proposal of 15 interrogatories by one party but also a suggestion that the parties abide by the 25 interrogatories provided for by the FRCP.  Requests for admissions are not limited, but document requests are confined to 15.   The limit on the number of depositions excludes depositions taken of experts.   The defendant counters the plaintiff's proposal for a limit of 10 non-expert depositions, which the suggestion that only 10 depositions be allowed in a certain phase, with no limit provided for other phases.   The plan from the Western District of Texas states a total number of hours of depositions, rather a distinct number of witness depositions.  

 

7. Deadlines.  The New Jersey form has lines on which the parties are to give deadlines for adding parties, the end of fact discovery, filing expert reports,  filing dispositive motions, a pretrial conference, and a trial.   The North Carolina forms include all these deadlines, and state the number of days for the trial and arrange for the pretrial conference to be two weeks for the trial.   The Minnesota plan has different schedules for all these dates submitted by each party.    The schedules also include deadlines for class certification filings and a hearing on class certification.    The Minnesota plan has a section in which the parties indicate the number of witness they will call at a possible trial.    The Texas plan does not provide for deadlines, but does refer to a scheduling order creating deadlines for dispositive motions.  

 

8. Form of ESI.   New Jersey directs the parties to indicate whether or not they will have issues about the form of produced ESI, and indicate agreements on the "costs of discovery, production, related software, licensing agreements".   North Carolina has a separate section for the "Form of production/preservation"  and specifics that ESI be produced in the form in which it is maintained in the ordinary course of business.   It also includes the interesting provision that emails have a field indicating who they were forwarded to or if they were replied to.   Word and Excel files are to be produced in native format.   The parties are not required to alter their regular records retention policies so long as they are in compliance with federal and state regulations.   Minnesota simply states that, "The parties will meet and confer regarding the format of retrieving any electronically stored information.", without providing any further information about electronic discovery.   Texas makes reference to a separate agreement on ESI issues, and notes one party objects to sharing data over "FTP site and/or Secure Share method".

 

9. Confidentiality.  In New Jersey the parties are to state whether or not they will enter a confidentiality order.   The North Carolina plan has a protective order attached which the parties stipulate to.    It also addresses privilege issues, something not referenced in the draft New Jersey form.   It states that there is no waiver for inadvertently producing privileged documents, and specifies a deadline (10 days) by which such documents must be destroyed after a request is made to do so.   The party that makes a request for privileged information to be recalled or destroyed has to cover the costs of doing so.   Minnesota calls for the parties to meet and confer and submit a protective order to the court, but does not address privilege issues.  The Texas plan mentions a previous motion for a protective order which resulted in such an order being in effect at the time of the plan.   It only discusses privilege in the context of the assertion of legislative privilege by certain witnesses. 

 

10. Scheduling Conference.   New Jersey calls for the parties to list issues to be addressed at a later scheduling conference held pursuant to Rule 16.   North Carolina does not address this issue.   The Minnesota plan provides for a scheduling conference after the resolution of the class certification motions.  In Texas a scheduling order is already in effect and no reference is made to later conference. 

 

April 15, 2016

Rule 26(f) discovery plans can take many forms.   Let's compare these examples freely available on the web from the Eastern District of North Carolina; the District of Minnesota; the Western District of Texas; and a form on the site for the District of New Jersey.  

 

 

1. Name and addresses of the participating attorneys.   The D.N.J. form specifies that the addresses, phone numbers, fax numbers (?), (but not emails) of the attorneys at the meeting be listed.   However none of the other examples list precise contact information for the named attorneys. 

 

2. Case description.  The template from New Jersey requires that a description of the case be given along with the causes of action and defenses.   This is omitted from the North Carolina and Texas plans, but included in Minnesota which also lists the jurisdictional basis of the case and 1 to 3 page factual summaries of the claims and defenses.  

 

3.  Settlement.  The D.N.J. form specifies that monetary and non-monetary offers and demands be listed.   Texas indicates that settlement discussions took place, but does not mention amounts or other offers.  North Carolina simply refers to the fact that a settlement may be facilitated by a mediator.   Minnesota does not refer to a settlement but does include a spot for listing the damages amounts.

 

4. Rule 26(a) required disclosures.   The New Jersey form asks the parties to indicate if required disclosures under FRCP 26(a) and if any problems were encountered.   The other districts list dates by which the FRCP 26(a) disclosures must take place and when expert reports required by FRCP 26(a)(2) must be exchanged. 

 

5. Discovery subjects and phases.   In the D.N.J. form litigants are asked to  describe the discovery subjects and state whether or not discovery will take place in phases.   In the filing from Minnesota the two parties each state their own positions about whether or not discovery should be conducted in phases or limited to certain issues, using citations to case law and the Manual for Complex Litigation to bolster their positions.    The defendant both proposes a discovery schedule and indicates the number of document requests, interrogatories, and depositions that will be permitted.    The North Carolina plan just gives a laundry list of discovery subjects: claims under the ADA; alleged damages; affirmative defenses; other issues; expert disclosures; and the catch-all, "all other matters that will reasonably lead to the discovery of admissible evidence."  - but does not discuss phases.  Texas does not specifically list subjects or refer to phases. 

 

Goodness it's late!   I'll continue this review tomorrow night.

 

 

January 12, 2016

Mary Mack, former Corporate Technology Counsel with Fios, Inc., was recently appointed the executive director of ACEDS.   People planning to acquire the ACEDS eDiscovery certification might be interested to know that Mack is the author of A Process of Illumination: The Practical Guide to Electronic Discovery.  While the edition I have was published in 2008, it could still serve as a good guide to the ACEDS perspective on eDiscovery.    

 

 In the first chapter of the book, "What Happens During Electronic Discovery?", Mack includes a chart with three fields "Description", "Intent"; and "Reality" for a dozen different Federal Rules of Civil Procedure  related to eDiscovery:   Rules 16(b); 26(a); 26(b)(2); 26(b)(5); 26(f); 33(d); 34(b); 37(e); 37(f); 45; and Form 35, in the context of how they were amended in 2006.   For example on FRCP 26(f):

 

Description: Requires all parties to sit down together before discovery begins to agree on some form or protocol.

 

Intent: Rule encourages uniformity, structure and more predictable motion practice.

 

Reality: Opportunity to shift preservation costs if prepared for these discussions; otherwise opportunity to get painted into a corner. 

 

The chart is a very good thumbnail sketch of how the FRCP applies to FRCP issues.

 

If you're looking to the book of a guide to her overall philosophy on eDiscovery, note that Mack begins her book emphasizing the need to issue a hold to preserve ESI as soon as litigation is threatened.  She quotes Laura Kibbe, an ex-ediscovery counsel at Pfizer, advising 'Don't play hide the ball . . . Negotiate scope and need early on."    She describes ESI as being multi-dimensional - not under the control of a single user, and usually not capable of being destroyed without a trace.   Ken Withers of the Sedona Conference is quoted to endorse the importance of effective eDiscovery lowering costs, "More money is probably spent litigation e-discovery problems than in litigating class actions."   ESI is fluid and pricey, and must be addressed with urgency. 

 

 

 

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Sean O'Shea has more than 15 years of experience in the litigation support field with major law firms in New York and San Francisco.   He is an ACEDS Certified eDiscovery Specialist and a Relativity Certified Administrator.

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