Drop-by-Drop Water Torture Productions

There are judges who have a way with words when they want to make a point. One example of such judicial prose was by Magistrate Judge Gregory G. Hollows in Botell v. United States:

At this juncture, the United States has purportedly been looking for documents for months, yet the undersigned, to the date of the hearing, does not have confidence that an organized, thorough search has been performed. Rather, defendant’s document production performance in these proceedings has been akin to a drop-by-drop water torture. At some point, plaintiff must be protected from the United States’ further belated production of pertinent documents. The court now enters a preclusion order prohibiting the United States from presenting evidence in its case that had been requested by plaintiffs in the Requests for Production, but which has not been produced by the date of compliance with this order.

Botell v. United States, 2012 U.S. Dist. LEXIS 134265, 15-16 (E.D. Cal. Sept. 18, 2012).

Botell v. United States is a wrongful death and personal injury case involving a minor injured and another killed at a National Park. The Government produced over 7,000 pages of documents, but there was a “a glaring lack of production of emails from defendant’s agents and employees.” Botell, at *11-13. Moreover, the total number of custodians produced by the Defendant totaled one.

The Plaintiffs argued five other relevant custodians’ emails needed to be produced, because the custodians were referenced in the already produced ESI. Botell, at *11.

The Defendants produced one declaration by the Chief Ranger at the park, which explained his efforts to find responsive email.

These efforts included “searching” the office and network drives, and the Ranger’s coordination with officials and IT personnel at another National Park to search another custodian’s computer. The declaration was silent on any search for emails by the other custodians. Botell, at *11-12.

Another declaration curtly explained the back-up policy for Lotus Notes emails as follows: “[B]ack-up emails are retained for 30 days only, unless they are subject to a litigation hold notice or pertain to the BP Gulf Oil spill.” Botell, at *12.

The Court ordered the Defendants to provide a declaration explaining the searches conducted to locate physical and electronic copies of responsive emails by the five custodians. The Court specifically required the following:

The declaration shall state the steps taken to locate these emails, whether any such emails exist, and if not, a definitive statement that they no longer exist. If further responsive documents are located, they shall be produced at the time declarations are filed.

Botell, at *12-13.

Bow Tie Thoughts

Nothing goes for the jugular like a preclusion order for failing to produce discovery. Botell is a powerful example of the dangers of what appeared to be “do it yourself” collection. While it was not outright stated the Defendant did not have an eDiscovery collection expert, it sure sounds that way from the context of the declarations.

One would hope when a large organization has a triggering event for a lawsuit, an effective litigation hold is enacted. Many of today’s records information management systems have the ability to electronically sequester a specific custodian’s email and ESI with a keystroke. Additionally, much of this technology has Early Case Assessment and data reduction features that can identify the relevant information for attorneys to review.

An organization should either have professionals trained in the search and preservation of ESI or retain outside professionals to competently preserve ESI. The steps taken to search and identify responsive ESI must be documented and should, at a minimum, explain the search methodology; technology used; data sources searched; search results; possible exclusions or exotic files; and anything else relevant to explain to a judge how ESI was searched.

A requesting party should not have to blink “torture” in Morse Code for a judge to stop a party neglecting their discovery obligations. An attorney’s duty of competency should compel their preservation obligations are met with those trained to effectively find and produce responsive discovery.

Surprise Videos & Initial Disclosures

A Defendant in an SEC case offered video exhibits for trial.  The SEC objected, citing that the videos were not included in the Defendant’s Rule 26(a) initial disclosures and should be excluded under Rule 37(c)(1).  United States SEC v. Big Apple Consulting USA, Inc., 2011 U.S. Dist. LEXIS 99352, 6-8 (M.D. Fla. Sept. 2, 2011).

The Defendant argued the failure to disclose the videos was “harmless or substantially justified” under Federal Rule of Civil Procedure Rule 37(c)(1).  Big Apple Consulting USA, Inc., at *2, 6.

Courts consider five factors to determine whether the failure to make Rule 26 disclosures were substantially justified or harmless:

(1) The surprise to the party against whom the evidence would be offered;

(2) The ability of that party to cure the surprise;

(3) The extent to which allowing the evidence would disrupt the trial;

(4) The importance of the evidence; and

(5) The nondisclosing party’s explanation for its failure to disclose the evidence.

Big Apple Consulting USA, Inc., at *6-7.

The Court quickly held the Defendants’ failure to comply with Rule 26 was not substantially justified, because they provided “no explanation as to why they failed to disclose that they intended to introduce the videos at trial.” Big Apple Consulting USA, Inc., at *7.

Whether or not the error was harmless was one the Court could not determine, unless the videos were relevant, important and thus the SEC should have had an opportunity to conduct discovery upon the prospective exhibits, but did not because of their “surprised” nature.  Big Apple Consulting USA, Inc., at *7.

The Court found there was an opportunity to cure the use of the “surprise” exhibits.  Big Apple Consulting USA, Inc., at *7.  The Court held:

Nevertheless, investing the time and resources to cure is only appropriate if the videos are both relevant and important evidence. Therefore, the Court will give Defendants an opportunity to proffer the videos. If the Court determines that they are both relevant and important evidence, Defendants will be allowed to use the videos during trial; however, the SEC will be allowed to conduct any necessary discovery regarding the videos and will be awarded reasonable fees and costs related to such discovery.

Big Apple Consulting USA, Inc., at *7-8.

Bow Tie Thoughts

Determining ESI that can support a party’s claims or defenses is time consuming, especially if there is a large volume of data to review. Video, photos and audio files are forms of ESI a party should not forget.

A party could argue that the more relevant and important the non-disclosed ESI is to a case, the more harmful the failure to disclose the prospective trial exhibits was to the opposing party. This would logically weigh in favor of excluding the exhibits from trial.  Moreover, it is also plausible that the more harmless and unimportant the non-disclosed information is to the case would mean proposed exhibits are of little relevance to the case, which also weighs against their being admitted at trial on relevancy grounds.

The time to determine the importance and relevance of any ESI is not on the eve of trial, but at the beginning of a case.  Early Case Data Assessment software can be extremely helpful in identifying ESI for initial disclosures utilizing keywords, identifying key players, narrowing date ranges and other methodologies to determine relevant ESI that supports a party’s claims or defenses.  Trying to slug out in motion practice whether or not prospective exhibits are relevant and important is not cost or time effective.  Moreover, even if a party prevails, the opposing side would win on the cost to conduct additional discovery over the non-disclosed prospective trial exhibits.

Moral of the story: Identify early, disclose pursuant to the Rules, avoid motion practice and focus on the merits of your case at trial.

ABA Journal Blawg 100:

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In the War of the Roses, It is Best to Change Your Email Password

Divorce is ugly.  It can be uglier when your estranged spouse has the password to your email account. 

In Gurevich v. Gurevich, 2009 NY Slip Op 29191 (N.Y. Sup. Ct. 2009), the estranged wife had her ex-husband’s email password since their separation in 2006.  The wife accessed the husband’s email account and claimed to find email messages showing a scheme in which her husband, his employer’s accountant and former business partners attempted to shield his income from her. Gurevich, at *1.

The Court framed the issue as whether the estranged spouse had the right to use the email from the husband’s account in trial.  The Court found she could. 

The parties each had access to the other’s email while they were married.  Gurevich, at *2.  After their separation, the wife changed her email password while the husband did not.  The wife claimed the husband never revoked his permission for her to access his email after separation.  Id.

The husband did not change his email password until two years after separation.  Gurevich, at *3.

The New York statute on eavesdropping prohibits the use of any unlawfully obtained communications in a hearing or trial.  Gurevich, at *3, citing CPLR section 4506.  Eavesdropping is defined under New York law as a person who engages in “…wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.”  Gurevich, at *3, citing Penal Law section 250.05.

The Court analyzed the legal definitions of 1) “unlawfully;” 2) “intercept or access;” and 3) “electronic communication,” in determining whether the wife violated New York law.   Gurevich, at *3.

What followed was a highly technically reason why the husband lost. 

According to New York law, the interception of an electronic communication is the “…intentional acquiring, receiving, collecting, overhearing, or recording of an electronic communication, without the consent of the sender or intended receiver thereof, by means of any instrument, device or equipment…”  Gurevich, at *3.

Electronic communication is defined under Penal Law section 250.05 as

[A]ny transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system, but does not include: (a) any telephonic or telegraphic communication; or (b) any communication made through a tone only paging device; or (c) any communication made through a tracking device consisting of an electronic or mechanical device which permits the tracking of the movement of a person or object; or (d) any communication that is disseminated by the sender through a method of transmission that is configured so that such communication is readily accessible to the general public. Gurevich, at *3.

The wife claimed she did not violate the eavesdropping statute, because she did not intercept the email messages in transit, but accessed them in the husband’s email account.  Gurevich, at *4.

The Court agreed with the wife’s arguments and New York case law involving electronically stored information on laptops.  The Court found that the intent of Penal Law section 250.00 was to prohibit the interception of communications sent between individuals.  Gurevich, at *5. 

The Court explained that the email was not “in transit”, but within an email account.  Gurevich, at *5.  Even though the wife might have unlawfully gained access to the husband’s email account, the email was not “intercepted” and thus did not fall under the eavesdropping statute.  Gurevich, at *5.

Bow Tie Thoughts

This entire case could have been avoided if the email messages had been requested, collected and produced in discovery, instead of a battle over eavesdropping. The content of the email squarely sounds relevant to the case and rightly the subject of a request for production. 

The husband lost in this case on a highly narrow technical reading of the New York eavesdropping statute. This might also mean different standards are applied to email messages within Outlook on a laptop verse email messages on a web-hosted platform (while the case is silent on how the email was stored, it sounded like a cloud-based solution in which the court applied case law where ESI was stored on laptops and thus not in “transit”).  Regardless, the issue of “interception” or “access” will be fought over again in future cases with the expansion of cloud-based electronically stored information.  I think it is a fair question of whether accessing anything stored online would put that electronically stored information in “transit” opposed to being solely stored on a laptop.

More importantly, it highlights the importance of changing email passwords on a schedule or if you have a life changing event such as a divorce.

Bow Tie Law 1st Anniversary

December 30, 2009 marks the first anniversary of “Bow Tie Law.” 

2009 was a watershed year of case law, with litigation hold opinions coming up weekly this summer; the mandatory exclusion of ESI for the failure to disclose or supplement discovery; and judges holding attorneys to a higher standard for electronically stored information.

Thank you everyone who has made Bow Tie Law “Year One” a success as we enter 2010.

Admissibility of Email Strings and Co-Conspirator Emails

The Federal Rules of Civil Procedure are frequent superstars spotlighting requests and production of electronically stored information in case law.  Whether or not such discovery is admissible is another story. 

Park W. Radiology & Park W. Circle Realty v. Carecore Nat’l Llc, 2009 U.S. Dist. LEXIS 110282 (S.D.N.Y. Nov. 19, 2009) is an extensive opinion addressing the admissibility of email in motions in limine. 

Admissibility of Email Strings

The Plaintiff attempted to exclude an email string pursuant to the Federal Rules of Evidence 402 (Relevancy), 403 (Prejudice), 608 (Character Evidence/Witness Conduct), and 609 (Impeachment by Evidence of Conviction of a Crime). Park, at *8.

The email string contained the statement, “I was hoping that her friends would want to have sex with [sic] me after they saw the ring.”  Park, at *8. As one can imagine, the Plaintiffs argued the email was irrelevant and highly prejudicial if it somehow was relevant.  Park, at *8.

The Plaintiffs further claimed the email chain contained attorney-client communications.  Park, at *8.

The Defendants in turn argued the email was relevant in showing the bias of one of the Plaintiffs’ trial witnesses.  Park, at *8-9. 

The Court held the section of the email string that could show bias of a trial witness was relevant. However, the section stating, “I was hoping that her friends….” was so prejudicial that it outweighed any relevance it had in showing bias.  As such, that section would need to be redacted for trial.  Park, at *9.

Planning a Conspiracy on Email 

The Defendants sought preclusion of emails from a doctor as hearsay between nonparties (Federal Rule of Evidence 802).  Park, at *39. 

The Plaintiffs claimed the email chain showed a conspiracy because a doctor who was affiliated with the Defendants’ Board of Managers “suggested” to the other doctors on the email that the Defendant was “unlawfully controlling the market for imaging centers and suggesting a business decision agreeable to the conspiracy.”  Park, at *40. 

The Plaintiffs argued that the emails were not hearsay, because they were statements between co-conspirators under Federal Rule of Evidence Rule 801(d)(2)(E). Park, at *40. This provision requires the existence of a conspiracy and the participation of the declarant in furthering the conspiracy.  See, Federal Rule of Evidence Rule 801(d)(2)(E).

The Court issued a “preliminary” denial of the Defendants’ motion in limine to exclude the email messages.  Park, at *40-41.  The Court would allow the use of the email exchange, if the Plaintiffs could meet the co-conspirator requirements of Federal Rule of Evidence Rule 801(d) (2) (E).  Id.

Bow Tie Thoughts

Attorneys and vendors often get wrapped up in the production and review of electronically stored information.  This is with good reason, considering the volume of ESI that can appear in discovery.  However, litigation tends to be over the 10 or 20 key documents that prove a party’s case to the jury.  Being ready for any admissibility challenges can help avoid your case theory getting derailed by motions in limine to exclude a key email or instant message.

Attorneys can help prepare for the admissibility of electronically stored information while doing document review.  Coding fields can be set up for issues such as “Relevant,” “Authentication,” “Best Evidence,” “Hearsay” and “Probative Value vs Unfair Prejudice.”  Reviewing attorneys can consider the admissibility factors as they are performing document review, which may impact their choices on which documents to ultimately use in trial or mediation.

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).

Blindfolded businessmanThe 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.

Chess Pieces

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).

Auto-Exclusion: Undermining Your Own Case with Failed Disclosures

Discovery Rules with Teeth

Chatter Teeth

Here is a great rule with teeth: If you do not disclose ESI or documents under Federal Rule of Civil Procedure Rule 26(a), they are automatically excluded under Federal Rule of Civil Procedure Rule 37(c)(1). 

In Melczer v. Unum Life Ins. Co. of Am., 2009 U.S. Dist. LEXIS 82549 (D. Ariz. July 16, 2009), the Plaintiff successfully excluded 526 documents that were untimely disclosed under Federal Rule of Civil Procedure 37(c)(1). Melczer, 1-3.

Federal Rule of Civil Procedure Rule Rule 26(a)(1)(A)(ii)

The Defendants received the documents in May 2008.  Melczer, 3.  These documents were not disclosed to the Plaintiff, as required by Federal Rule of Civil Procedure Rule 26(a)(1)(A)(ii).  The Rules states, in relevant part:

“a copy–or a description of category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.”

Put it in Writing: Federal Rules of Civil Procedure Rules 26(a)(4) and 26(g)(1)

WritingDisclosures must be “in writing, signed, and served.”  Melczer, 2, citing Federal Rule of Civil Procedure Rule 26(a)(4).  The disclosure must be signed by an attorney.  Federal Rule of Civil Procedure Rule 26(g)(1).

To make life exciting, the Defendants orally told the Plaintiffs about the documents in October 2008….before the close of discovery that month. Melczer, 2.

Oral disclosure doesn’t count under the Federal Rules of Civil Procedure, because the Rules require disclosure to be in writing and signed.  Melczer, 3. As such, the disclosure was untimely. 

Auto-Exclusion of Untimely Disclosures

Pursuant to Federal Rule of Civil Procedure Rule 37(c)(1), untimely disclosures must be excluded, unless there is untimely disclosure was “substantially justified or harmless.”  Melczer, 2, citing Federal Rule of Civil Procedure Rule 37(c)(1).

The Defendants claimed there was substantial delay because the Plaintiffs refused to sign a stipulated protective order after the close of discovery. Melczer, 5-6. This was a self-defeating argument, since the stipulation was sought after the close of discovery. Melczer, 6.

The Court found the untimely production to not be harmless.  Melczer, 8. The Plaintiffs would have sought additional discovery on the documents, which would have required discovery to be reopened.  Melczer, 8-9.

The Court found the late production to be an untimely disclosure, which was neither justified nor harmless.  Melczer, 10.  Moreover, the remedy for an untimely disclosure is not reopening discovery, but an “automatic” exclusion under Federal Rule of Civil Procedure Rule 37(c)(1).  Melczer, 10. 

Bow Tie Lessons

The Courts are throwing down the gauntlet on Federal Rule of Civil Procedure Rule 26(a) violations.  After preserving electronically stored information, a party must disclose ESI and documents that support their claims or defense.  This could get ugly where there are thumb drives, mp3 players or any removal media.