If It is Lost, It’s Not in Your Possession, Custody or Control under Rule 26(a)

In a prison medical treatment case, the Plaintiff brought a motion to exclude medical records pursuant to Federal Rule of Civil Procedure Rule 37(c) after the files were not identified in the Defendants’ initial disclosures or produced in discovery.  Nance v. Wayne County, 2009 U.S. Dist. LEXIS 96279 (M.D. Tenn. Sept. 15, 2009).

The only catch: the non-identified files were lost. 

The Plaintiff claimed the Defendants failed to disclosure the Plaintiff’s medical record pursuant to Federal Rule of Civil Procedure Rule 26(a) (or supplement their discovery responses) and erroneously denied a request for admission. Nance, at * 5-6.  The fact the medical records at one time existed was not discovered until the deposition of a treating nurse.  Nance, at *6-7. 

The Plaintiff wanted 1) the Defendants not be allowed to use the medical records; 2) the facts in the medical records be taken as true according to the Plaintiff’s claims 3) jury instructions on the non-disclosure of the medical records and 4) fees and costs for the deposition.  Nance, at *11-12. 

The Plaintiff lost….because the medical file was lost.   

The Court found the Defendants did not violate Federal Rule of Civil Procedure Rule 26(a).  A party’s initial disclosures only need to include documents within its “possession, custody or control.”  Nance, at *13-14.  Since the medical file was lost, the file was not within the Defendants “possession, custody or control.” Nance, at *16.  Additionally, the Defendant was not going to use the medical file to support claims or defenses. Nance, at *16-17.

Bow Tie Lesson

The lesson of this discovery dispute is that you cannot use what is lost, nor can you disclose what does not exist.

The Titan Killer: Mandatory Exclusion under Federal Rule of Civil Procedure Rule 37(c)(1)

Oracle and SAP are at war.  They have exchanged bayonet charges in discovery for two years in a case where Oracle has accused SAP (TomorrowNow) of “systematic and pervasive illegal downloading of Oracle software over approximately six years.”  Oracle United States v. Sap Ag, 2009 U.S. Dist. LEXIS 91432 (N.D. Cal. Sept. 17, 2009).  Production has been over 12 terabytes with 140 custodians and document review for each custodian has cost $100,000.   Oracle, 6-7.

Somewhere in the thirteen discovery conferences, the Court instructed the parties to follow the proportionality requirements of Federal Rule of Civil Procedure Rule 26(b)(2)(c), to beware of the expense of the proposed discovery outweighing its benefit.  Oracle, 7-8.  Needless to say, knowing the damages at issues when they could equal the budget of a large city would be important to know early in discovery. 

The Plaintiff took the position for two years that their lost profits damages were based on “lost support revenue for Oracle software application products from Plaintiffs’ 358 former customers that had received support from Plaintiffs, but switched to receiving support for Oracle products from TomorrowNow.”  Oracle, 8.  

And that is how discovery played out to the tune of millions of dollars for both parties for two years. 

Iceberg, Dead Ahead

The Plaintiffs switched damages arguments during the depositions of their executives in April and May of 2009.  Oracle, 38.  The Plaintiffs at that time claimed the “greater economic harm came from lost licensing revenue and price reductions to customers that never left Oracle for TomorrowNow.”  Oracle, 38.  The Plaintiffs referred to lost customers as “only the tip of the iceberg” to their damages, which were not disclosed for two years to the Defendants and the Court. Oracle, 38-39.

To Kill a Titan: Court Orders and Supplemental Disclosures

The Defendants fought a Hegemonic war to exclude the additional damages evidence for violating a Federal Rule of Civil Procedure Rule 16(f) discovery order and failure to supplement discovery under Federal Rule of Civil Procedure 26(e)(1).  Moreover, a failure under Federal Rule of Civil Procedure Rule 26(e)(1) subjects the offending party to mandatory exclusion of that information under Federal Rule of Civil Procedure Rule 37(c)(1).  Oracle, 12-15.

The Court held the Plaintiffs had a duty to disclose the “tip of the iceberg” damages known to their executives, long before their depositions two years after millions of dollars had been spent on discovery.  Oracle, 48. The Defendants’ economic damages expert witness stated it would take an additional year to analyze the new damages claims and cost $5 million ($4.4 million had already been spent and it was estimated $4 million more through trial).  Oracle, 48-49. There was no excuse for not disclosing basic damage claims in discovery. 

The Court granted the Defendants’ exclusion motion, precluding the Plaintiffs from arguing any additional damage theories other then the original damages theory. Oracle, 58-59.  Don’t feel too bad for the Plaintiff, because this evidence might be over a billion dollars.  Oracle, 59.

Bow Tie Lessons: The Hammer will Fall

The Plaintiffs were precluded from arguing additional damages theories because they did not supplement their initial and court ordered discovery.  Courts are truly laying down the law on Federal Rules of Civil Procedure Rules 26(a) and 26(e)(1) with the hammer of Federal Rule of Civil Procedure Rule 37(c)(1).

The Plumbing of a Motion to Compel

In a product defect case about brass plumbing fittings, the Defendants fought a motion to compel electronically stored information relevant to class certification, because of undue burden and cost.  They lost…in large part. In re Zurn Pex Plumbing Prods. Liab. Litig., 2009 U.S. Dist. LEXIS 47636, 1 (D. Minn. June 5, 2009).

Paper Clogging the Drain

The Court initially required the parties at the beginning of the litigation to only focus on hard copy documents out of the concern the electronically stored information would drive up the cost.  2.  The Court stated:

“ESI may prove to be relevant to the first stage of discovery, we cannot meaningfully make that prediction now, and require the parties to engage in what could be vastly more expensive, and yet utterly futile, discovery.” In re Zurn Pex Plumbing Prods. Liab. Litig., 2.

 

The Court further stated on electronically stored information:

“[S]hould the parties uncover voids in the information disclosed in hard copy form, they are . . . at liberty to press for further discovery including electronically stored information.” In re Zurn Pex Plumbing Prods. Liab. Litig., 2.

The Defendants’ Electronically Stored Information

Deposition testimony revealed the Defendants’ electronically stored information includes employee email folders and files on the network system.  Additionally, the ESI of former employees’ were archived on DVD.  There was also a separate network drive that contained un-segregated folders from over 600 employees.  In re Zurn Pex Plumbing Prods. Liab. Litig., 2-3.

Enter the Litigation Hold and Search Terms

The Defendants produced a list of individuals who were issued a litigation hold. In re Zurn Pex Plumbing Prods. Liab. Litig., 3.

The Plaintiffs in turn requested searches across the different databases with 26 key words.

The Defendants opposed the request as being “not necessary for class certification and that the request was overly broad and would be extremely costly.”  In re Zurn Pex Plumbing Prods. Liab. Litig., 3. 

The Defendants’ Arguments Going Down the Drain

The Defendants argued that 1) the first Court Order did not allow for any ESI productions and 2) producing ESI would be unduly burdensome and costly. 

The first Court order did NOT foreclose electronic discovery.  In re Zurn Pex Plumbing Prods. Liab. Litig., 4.  The Court stated the first Order allowed for electronic discovery if there were “voids in the information disclosed in hard copy form.” Id.  The Court noted email messages showed possible gaps over fittings failures and aggressive water compared to the paper documents.  Id. 

The purpose of civil discovery is to allow parties to “obtain the factual information needed to prepare a case for trial.” In re Zurn Pex Plumbing Prods. Liab. Litig., 5.  Despite the discovery being limited to class action certification, the Court stated there was a presumption in favor of production the Defendants’ electronically stored information.  In re Zurn Pex Plumbing Prods. Liab. Litig., 4-5.

Cost Counts

The Defendants were able to stop a complete rout with their cost arguments. 

The Defendants had approximately 61 gigabytes of data, which would have totaled around 27 million pages if printed.  The Defendants estimated searching all of the databases to cost around $1,150,000 and take seventeen weeks to perform.  That did not include collection and processing. In re Zurn Pex Plumbing Prods. Liab. Litig., 6-7.

The Court Order

The Court did not buy the Defendants’ burdensome arguments, especially considering a lawyer who was not an expert on searches made the claim. In re Zurn Pex Plumbing Prods. Liab. Litig., 6.

The Court did try to limit false hits from the search terms by limiting the number of search terms to 14 specific terms.  The Defendants’s searches were limited to the network drives, custodian emails and the DVDs of the former employees.  In re Zurn Pex Plumbing Prods. Liab. Litig., 6-7. 

Bow Tie Thoughts:

The parties would have been better served addressing electronically stored information at the beginning of the lawsuit, instead of delaying it for over a year.  Both sides would have been in a better position to judge class certification or settlement options if they knew the big picture.  Moreover, the Defendants had over a 600 person company.  Using email would be a fact of life.

The collection, processing, data reduction and review of 61GB would not be cheap, but $1,150,000.00 for the searches alone over 17 weeks sounds inflated. 

The perceived cost might be inflated by thinking of electronically stored information as the same as reviewing 27 million pieces of paper.  ESI can be reduced by targeted collections, pre-discovery tools to reduce the data set that are then fully searchable in a litigation support software.  With paper review, lawyers, contract attorneys and paralegals are digging through boxes of paper only searchable by the human eye. One can see where a seventeen week estimate comes from such a brut force search. 

Processing costs, which include data reduction to cull down electronically stored information, is approximately $600 to $1000 a gigabyte, depending on the vendor’s services.  Attorney review in a litigation support software is reduced by having to review less ESI, such as not reviewing any email newsletters, spam and focusing on specific date ranges.  With that said, estimating the cost to search 61GB that also did NOT include collection and processing to be over a million dollars seems high on the facts presented.

Follow the Court Order: If You are Ordered to Produce Searchable PDF’s, Don’t Produce TIFFs without Searchable Text

Gamesmanship is the harbinger of bad lawyer reputations.  Not obeying Court orders can be the death warrant on how the judge will view you every time you appear in her courtroom.  One can imagine how things will go for a party when this is the opening line of an opinion:

This is the second needless discovery motion in this case – needless because plaintiff’s counsel simply refuses to follow the letter of court orders, and in this case, not even the spirit. Ajaxo Inc. v. Bank of Am. Tech. & Operations, Inc., 2008 U.S. Dist. LEXIS 97602, 1 (E.D. Cal. Dec. 1, 2008).

Ignoring the Form of Production in a Court Order

The Court ordered ESI be produced in a searchable form and Plaintiffs agreed to searchable PDF’s. 

The Plaintiffs instead produced 119 static images (TIFFs) WITHOUT extracted text for searching, any pagination, or a load file for a litigation support review system.  Ajaxo Inc., 3.

The Plaintiff’s expert material was produced at first late in non-searchable format on 5 CD’s. Ajaxo Inc., 3.  A searchable production was made months later after the motion to compel was filed.  Id.

Preparing for an expert deposition with 5 CD’s worth of non-searchable material does not sound like a good time.

The Court found the Defendants were prejudiced because they could not adequately prepare for the expert’s deposition with the large volume of documents. 

Prejudice was encountered with respect to the Hampton CDs in that the Bank could not adequately prepare for Hampton’s deposition given the volume of documents. Ajaxo Inc., 3. 

The Plaintiffs were ordered to produce both productions in a searchable format and instead disregarded the Court Order.  This did not go unnoticed by the Judge.  Ajaxo Inc., 3. 

Things Judge’s Don’t Like: Excuses

The Court was not thrilled with the Plaintiffs claiming the Federal Rules of Civil Procedure do not require ESI productions in searchable format. 

The Court bluntly stated, “[Plaintiffs’] belief that the Federal Rules may not require production in searchable format is not only wrong, but again ignores the terms of the specific order.” Ajaxo Inc., 4.

Federal Rule of Civil Procedure Rule 34 Review

The Court included the following summary on form of production protocols from the Federal Rules of Civil Procedure, the Advisory Committee notes and case law:

Fed. R. Civ. P. 34(b) permits the requesting party to specify the format of electronically produced documents, subject to objection by the producing party with a statement in the Rule 34 response specifying the form in which the documents will be produced. This objection may be sustained or overruled by a court. In the absence of a court order, and if no specific request is made, the producing party may produce the documents in native format, or in a “reasonably usable” form. Ajaxo Inc., 4, citing Rule 34(b)(2)(E).

A responding party may not change the form of production to make what was ordinarily searchable, non-searchable. Rule 34 Advisory Committee Notes 2006 amendment. Courts may order electronic documents to be produced in searchable format. Ajaxo Inc., 4-5, citing, In re Seroquel Product Liability Litigation, 244 F.R.D. 650, 654-55 (M/D. Fla. 2007); Hagenbuch v. 3B6 Sistemi etc., 2006 U.S. Dist. LEXIS 10838, 2006 WL 665005 (N.D. Ill. 2006)

Enter the Sanctions Motion

The Defendants sought the following sanctions pursuant to the Court’s inherent powers and Federal Rule of Civil Procedure Rule 37(b) (2):

(1) Order it established that Ajaxo and KCM are alter egos;

(2) Order plaintiffs precluded from relying on Hampton’s expert report to support their claims for damages;

(3) Monetary sanctions in the amount of $ 12, 592.50 for fees incurred to date. Ajaxo Inc., 5.

Perspective from the Bench: Not Happy, but Not Fatal to the Plaintiffs’ Case

The Court directly stated:

[Plaintiffs’] counsel may not pick and choose when to comply with a court order depending on counsel’s unilaterally determined excuses or justifications not to comply with the order. The order is either obeyed or appealed. Nor should courts issue orders which they are unwilling to enforce. There is importance per se in not allowing a party to ignore orders – the litigation process would otherwise descend into chaos. Thus, sanctions must be imposed here. Ajaxo Inc., 7.

The Court’s sanctions analysis focused on the Plaintiff counsel’s willful disobedience of the Court order and the prejudice the Defendants incurred. Ajaxo Inc., 7.

The Court was not ready to decimate the Plaintiffs’ case by striking their expert because of the attorney’s conduct.  The Court “barely” believed that Plaintiffs’ counsel acted in ignorance of the law and not in “contumacious disrespect” of it.  Ajaxo Inc., 8. 

The Court ordered the Plaintiffs to re-produce their expert for deposition, because the Defendants did not have adequate time to prepare for the expert’s original deposition.  Ajaxo Inc., 9.

The Court further ordered the costs of the deposition and motion.  Ajaxo Inc., 9-10.

Final Thoughts

Attorneys need to understand the procedures for requesting ESI, form of production requirements and complying with Court orders for electronic discovery to best serve their clients. The sheer volume of electronically stored information requires all lawyers to have a basic understanding of contemporary discovery.

Dirty Law: Cleaning Up a Spoliation Mess

“The duty to preserve relevant evidence is fundamental to federal litigation.”

Janet Bond Arterton, United States District Judge.

Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 43588 (D. Conn. May 21, 2009) is a polychlorinated biphenyls (“PCBs”) clean up case brought under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and Connecticut law. 

Unfortunately, the clean up efforts included getting ride of evidence that resulted in sanctions for the Plaintiff, Innis Arden Golf Club. 

Pitney Bowes and Pateley Associates 1, LLC, the Defendants in the case, charged that Innis Arden failed to preserve soil samples and related electronically stored information.  The Defendants requested either a dismissal or a proportional alternative sanction for the loss of evidence. 

Things figuratively turned into a toxic mess for the Plaintiffs because their experts failed to have a document retention policy over soil samples from the subject property and related electronically stored information.  Neither the Plaintiffs’ attorneys nor the experts activated a litigation hold on the evidence, which resulted in all the emails and draft reports being deleted after 30 days.  Innis Arden Golf Club, 12-13. 

The following deposition testimony, where the witness admits to litigation being anticipated and the lawyer volunteers they did not inform the Defendants the evidence was going to be destroyed, says it all.

Things You NEVER Want to hear in Deposition Testimony

Q. You knew this case was going to be in litigation, correct?

A. We anticipated that this possibly could go to litigation.

Q. Okay. Did anyone tell you to retain the samples as evidence for this Case?

A. No.

Q. Did you ask?

A. No. . . . But we discussed with counsel notification requirements of all those responsible parties in advance of the remediation to allow them the opportunity to participate or obtain whatever samples they were wanting.

Q. Well, I’m asking you about the evidence you gathered as evidence of alleged contamination. Did you retain that evidence?

A. No. Standard–standard protocol is to dispose of samples once analyzed. . . .

Q. Do you know when the samples in this case were destroyed?

A. No.

Q. Prior to destroying any or all of the samples, did you give notice or did counsel give notice to any of the defendants in this case?

Mr. Flynn: Objection

A. I don’t know.

Mr. Steinberg: Did you?

Mr. Flynn: Did I give notice?

Mr. Steinberg: You or your company.

Mr. Flynn: Notice of what?

Mr. Steinberg: That they were going to destroy the samples. I think it’s pretty obvious what the question is.

Mr. Flynn: Did we give notice? No. Innis Arden Golf Club, 10-12.

The Court cited that the duty to preserve arises when “the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Innis Arden Golf Club, 14, citing Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998).  Courts must weigh if the destruction was the result of an intentional act and the likely the contents of the evidence to determine the appropriate sanction. Innis Arden Golf Club, 14.

The Court had to answer the following issues:

(1)     Whether the Plaintiff was obligated to preserve the samples and associated data and failed to do so; and

(2)     Whether the failure to preserve evidence warranted imposition of sanctions and to what severity.  Innis Arden Golf Club,15.

Duty to Preserve the Soil Samples & ESI?  You Bet There Was One.

Evidence must be preserved if a party reasonably anticipates litigation.  Once this happens, a party “must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”  Innis Arden Golf Club, 16, citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003).

The Plaintiffs’ documents and their discussion of possible legal action showed the Plaintiff recognized the relevance of the soil samples for possible litigation.  Innis Arden Golf Club, 18.  As such, the duty to preserve began by mid-2005.  Innis Arden Golf Club, 19.

Finding the Appropriate Sanctions for Destroying Evidence

Courts evaluate the following in determining the appropriate sanction for spoliation:

1) The degree of fault of the party who altered or destroyed the evidence;

2) The degree of prejudice suffered by the opposing party; and

3) Whether the appropriate sanction minimizes the prejudice to the opposing party and “serve to deter such conduct by others in the future.” Innis Arden Golf Club, 25 (citations omitted).

 

The Plaintiffs’ email correspondence with their attorney and expert illustrated they wanted to seek a cost-recovery action against the Defendants.  The correspondence showed the Plaintiffs believed the soil samples were important evidence and that the Plaintiffs wanted to avoid being accused of destroying evidence.  Innis Arden Golf Club, 25-26.

The Defendants were prejudiced because they could not review the evidence for dating analysis or type of toxic material.  Innis Arden Golf Club, 26.

The Court found that only sanctioning with an adverse inference instruction was not sufficient for the spoliation the Plaintiffs caused, let alone a strange application in a bench trial.  Innis Arden Golf Club, 28-29.  As such, the Court held the appropriate sanction was the preclusion of evidence based on the soil samples the Plaintiffs took from the subject property and later destroyed. Innis Arden Golf Club, 30.

Producing Social Networking Profiles: What Court has Jurisdiction?

A Facebook user in Massachusetts was facing criminal charges in Massachusetts for criminal harassment and threats to commit a crime from Facebook messages.  Skerry, 2009 U.S. Dist. LEXIS 38804, 1-2 (D. Cal. 2009).  The Petitioner’s defense was that someone had improperly used his account to send the Facebook messages.  Skerry, 4.  The Petitioner sought the emergency deposition of Facebook’s “recorder keeper” because of the concern Facebook periodically purged its information system.  Skerry, 2-4.   

The petitioner’s criminal defense attorney emailed Facebook for ESI pertaining to the petitioner’s profile.  Facebook replied they were creating a preservation order, but they required a formal subpoena to produce any ESI or Documents.  Skerry, 2. 

The Petition filed a pro se motion to compel a deposition of Facebook’s record keeper to perpetuate testimony before any action been filed according to Federal Rule of Civil Procedure 27(a). 

The Petitioner had two major problems: 1) There was no adverse party in the Northern District of California and 2) The Petitioner did not seek to perpetuate testimony “about any matter cognizable in a United States court.”  Skerry, 4

The Petitioner fell victim to the United States District Court for the Northern District of California not having any Federal jurisdiction.  The case was a Massachusetts criminal case with a Massachusetts victim of the alleged crime.  There was no Federal Question for the Federal Court to hear the case, but rather a state criminal action from Massachusetts. Skerry, 4-5.  Since the Court did not have jurisdiction, there was no relief to grant. 

While the Court did deny the motion, the Federal Magistrate Judge did not state any opinion on what a California state court would do with such a request.  Skerry, 5-6. 

The Petitioner’s issue goes back to Marbury v. Madison: A Federal Court needs jurisdiction to hear a case.  When dealing with social networking sites based in one state that provide services to the entire country, the issues of proper venue, choice of law and even state vs Federal court must be considered when seeking legal relief.

Back on the Record: Tips on Deposition Preparation with Technology

I have taken and defended a good number of depositions.  Preparing for deposition requires thoroughness, thoughtfulness, and not being tied to your question outline like a student actor reading a script.  Whether you are “old school” or “new school,” there are many ways to enhance your deposition practice with litigation support software.

There are many effective ways to prepare for a deposition.  Here are tactics I have used with and without technology:

Option 1: No Deposition or Litigation Support Technology

Discovery is maintained as paper in boxes or a document depository.

Documents from the repository are selected and copied for the deposition.

The lawyer attends the deposition with a trusted Redwell Folder under their arm.

The question outline is prepared on a yellow legal pad.  More software friendly lawyers will use Word or Wordperfect for their outline.

This is a tried and true method that worked for lawyers from Clarence Darrow’s time to Gerry Spence.  If you are organized and keep your exhibits in order, this is an effective way to depose a witness.

The downside: if you have a lot of paper exhibits, you can lose time wadding through a stack of paper if you want to take an exhibit out of order.  Additionally, finding a document not selected as an exhibit you want to use in response to answer might require time to go off the record and check the document depository.

Option 2: Limited Use of Litigation Support Technology

Many law firms today use CT Summation iBlaze, LexisNexis Concordance, LiveNote or other litigation support software (LSS) to manage discovery.  These are all fine tools with their own strengths in preparing for a deposition.

The “hybrid” approach is using litigation support software instead of a document depository.  Searching for a document across a database is extremely faster than sending an associate attorney on a spelunking expedition to the document depository.

Lawyers and paralegals preparing for deposition can search for responsive exhibits in their LSS database.  These searches might be based on authors, recipients or date ranges on emails, faxes, or letters.

Exhibits sets are then printed for the deposition and the rest of the process follows Option 1.

Option 3: Full Use of Litigation Support & Trial Presentation Technology

Going “full technology” is used by lawyers who have successfully deposed witnesses with Options 1 and 2.  They are comfortable with technology and understand how to leverage it to their advantage.

As in Option 2, associate attorneys or paralegals search for deposition exhibits in the firm’s litigation support software.  Documents selected for deposition exhibits are marked as a “Hot Document” or noted in the database.

Many LSS programs allow users to create folders, such as “Defense Witness” or “Plaintiff PMK.”  Documents can be selected for witness folders as a way to organize exhibits.

While preparing deposition exhibits, attorneys can prepare their deposition outlines with linked exhibits in their litigation software.  This organization helps focus the deposition and allows the deposing attorney to move beyond a yellow legal tab.  Coupled with a real time feed from the court reporter, a lawyer can see their question outline and the witness’s answers at the same time.

Sophisticated techno-attorneys can conduct a deposition without paper exhibits.  Instead of a Redwell Folder full of paper, exhibits can be labeled digital on a DVD.  Digital copies can be given to both the court reporter and opposing attorney.

In CT Summation, this can be accomplished with a Browser Briefcase for non-CT Summation users or Summation Briefcase Format file (SBF) for Summation users.  Either format can be provided to opposing counsel and the court reporter at the deposition.

Exhibits can be numbered in advanced in the litigation support program.  The court reporter can mark the DVD/CD/External Hard drive with the exhibits as “Plaintiff Exhibits 1 to 37″ or whatever is appropriate.

Conducting a paperless deposition requires trial presentation software to display the exhibits for the witness.  This would include such products as Trial Director by inData.

A Note on Court Reporters

Court Reporters utilize technology with real time transcription, synced deposition exhibits and many other services.  Lawyers can assist their court reporters by providing a key term list prior to the deposition, so court reporters are not trying to figure out how to spell complex scientific jargon, party names or other terms of art on the fly.

Lawyers can increase their effectiveness during the deposition with a real time feed from their court reporter (for example, LiveNote, CT Summation and other fine products).  The deposing attorney can track answers as they come in, catch potential transcription errors and effectively compare prior answers for consistency from the witness.

For deposition review, ask the court reporter for a transcript with linked exhibits and synced video (if video recorded).  Depending on your transcript review tool, these will have different names, such as LiveNote Evidence Format (LEF) or CT Summation Briefcase Format (SBF).

Linked exhibits are useful in checking on which exhibit the witness is discussing.  More importantly, the associate or paralegal doing deposition review does not lose time jumping from the back of a printed deposition’s exhibits to the text.

There are many ways to take a deposition, be it with the Redwell or a laptop under your arm.  What matters is to look at the tools your firm employs and find the best deposition strategy for you.

Mock Motion in Limine Arguments to Exclude ESI

Michael Berman, Esq., of Rifkin, Livingston, Levitan & Silver, LLC, argued to excluded email messages and a voice mail at the CT Summation Best Practices Summit, held in Washington, DC on May 20^th, 2008.

 The Best Practices Summit included a mock motion in limine hearing.  In the fictional case, the Plaintiffs attempted to prove breach of contract and break of fiduciary duty with email messages, native file contracts and a voice mail.  The Defendants sought to exclude these exhibits on admissibility grounds.

 Watch Mr. Berman’s arguments to see the admissibility challenges to the electronically stored information.  Also note, on the right screen you can see CT Summation iBlaze with a Real Time transcript and on the left screen the exhibits presented with Trial Director by inData Corporation. 

SURPRISE! First Amendment e-Discovery Objections!

 

 

The Discovery of Electronically Stored Information has many surprises, ranging from stating the form of production, the inadvertent production of privileged material and defensible search terms.  A very surprised lawyer fought a First Amendment objection they probably did not see coming during a deposition. 

 

In Quixtar Inc. v. Signature Mgmt. Team, LLC, 2008 U.S. Dist. LEXIS 56593 (D. Nev. July 7, 2008), the Plaintiff claimed the Defendant launched an internet campaign to induce the Plaintiff’s employees to defect to Defendant’s company.  The Plaintiff claimed the Defendant launched multiple websites and blogs directed the Plaintiff’s at sales people to leave the company.

 

During deposition, a defense witness was questioned on his company’s blogs.  Plaintiff‘s counsel inquired whether there were other blogs that the witness had set up and maintained.  The witness responded “yes” and Defense counsel instructed the witness not to answer any questions regarding websites in a separate lawsuit on the basis of the First Amendment privilege.  

 

Defense counsel claimed the First Amendment privileged applied to the witness’s involvement or non-involvement in setting up other websites, video postings, and whether the witness posted under a pseudonym. 

 

What followed was a very detailed discussion on First Amendment Rights and Anonymous Posting on the Internet vs. State Tort Law. The analysis heavily focused on First Amendment rights, balancing tests for identifying anonymous parties and standing requirements to bring third party objections. 

 

The principle of anonymous speech dates back to such examples as Alexander Hamilton, John Jay and James Madison in the Federalist Papers or then Vice President Thomas Jefferson and James Madison (again) secretly attacking the Alien & Sedition Acts in the Kentucky and Virginia Resolutions.  The United States Supreme Court has protected this right, stating that, “Anonymity is a shield from the tyranny of the majority,” McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 357, (1995).  Additionally, the right to speak anonymously extends to the Internet.  Doe v. 2TheMart.Com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D.Wash 2001). 

 

The District Court found that the Defendant did not have to answer deposition questions on blogs until anonymous third parties had an opportunity to contest the discovery of their identities under pseudonyms and show they had legal standing to raise their objections.

 

To say the intersection of the First Amendment, Anonymous Posting and e-Discovery is complex is an understatement.  With the relative ease a website or blog can be created, lawyers should consider if their clients have any First Amendment issues warranting protection. Conversely, no one wants to inadvertently stumble into one of these disputes in a deposition without understanding the issues. 

Deposition Review with CT Summation iBlaze Color Highlighting

You can open my old Civil Procedure course book and see I usually highlighted cases with three colors: Blue for the “Issue,” orange for “Rule,” yellow for “Analysis” and a note in the margin for the “Conclusion” (IRAC for the non-lawyers). Law students have been highlighting and writing in textbooks since the “Paper Chase,” be it in search of “peppercorns” in Contracts cases or untying the Gordian Knot in Asahi Metal Industry Co., v. Superior Court.

 The latest version of CT Summation iBlaze allows for issue color highlighting in deposition review. [1] The new feature in CT Summation iBlaze 2.9.1 allows for a lawyer or paralegal to color code all of their issues, select favorite issues (most likely the key issues or facts) or assign a specific color to a user.

 For some background, I first started using CT Summation iBlaze back with version 2.6. I later worked for CT Summation for two and a half years demonstrating the product at seminars and tradeshows.

My main assignment when I used CT Summation iBlaze was summarizing 60 depositions and reviewing documents. While nothing beats the analysis of a good note about a deponent, the color highlighting feature would have been very helpful for the managing attorney to visually look for issue colored excerpts on reviewed transcripts.

 Here is how I would use the new transcript highlighting in deposition review:

 Assign colors to 1 to no more than 5 issues as “Favorites.” For example, if I were representing a plumber in a construction defect case, I would have an issue for “Plumbing Work” and assign the color blue. I would assign “Damages” the color red. In that case, I might have issues based on the Plaintiff’s causes of action, the plumber’s defenses, facts relating to the other subcontractors and the damage to the property. I would avoid “color confusion” by assigning every issue a color.

 I prefer my deposition summaries to be each question and answer compressed into one statement for review.  [2] To accomplish this in CT Summation iBlaze, I would select the deposing attorney’s question and the deponent’s answer. I would then do a right click to the left of the transcript line number and select the “Add Note” option.

Once the Note appears, I would then type in my summary of the question and answer. I would then Issue code as needed for each note. My “Favorite” color coded Issues will appear if I have selected the option to “Show Only Favorites.”  

The above would enable the reviewer to skim the transcripts visually for the colors Blue or Red guide their review. 

Those reviewing the deposition summaries may do so in CT Summation or a print out that includes the color highlights and notes. Additionally, you could print the notes creating a true summary of the deposition as paper or as a PDF.

 There are many ways to conduct deposition review in CT Summation. The above are just a few strategies for deposition review. Nothing will ever top the ability to do integrated searches across multiple transcripts or organize notes by issues. However, the color highlighting is a helpful new tool for deposition review.

 

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[1] In the interest of full disclosure, I worked at CT Summation for 2.5 years.

[2] There are many ways to summarize depositions in CT Summation iBlaze, from copying excerpts into Notes, Digesting and many other combinations.