Civil Procedure AND Star Wars?

Discovery disputes often result in strong judicial rebukes. Then there are the judges who work in a good Star Wars reference in an opinion. This case has both.

Jedi_MindTrick_Discovery_9352

Judge Richard Jones must have felt he was dealing with a phantom menace of discovery disputes, because most of the issues in the case could have been solved if the parties actually had a meaningful a meet and confer. Instead, the Court dressed down the attorneys on their meet and confer efforts:

This discovery dispute has quickly transformed into a behemoth, replete with competing and disputed descriptions of at the Parties’ efforts to meet and confer. This is not the cooperative discovery contemplated by the Federal Rules of Civil Procedure (the “Rules”) and this Court does not look kindly on the Parties’ behavior, especially when even a quick a review of the record reveals that many of the disputes have since been resolved and would have been resolved even without judicial intervention.

Cedar Grove Composting, Inc. v. Ironshore Specialty Ins. Co. (W.D.Wash. Dec. 23, 2015, No. C14-1443RAJ) 2015 U.S. Dist. LEXIS 171576, at *2-3.

The first issue was a motion for fees by the Plaintiff to recover costs for a motion to compel. The Court denied the motion, holding that the “that Plaintiff did not attempt in good faith to obtain the requested discovery prior to filing its Motion to Compel.” Cedar Grove, at *5. Judge Jones explained that the Plaintiff’s effort to confer with the Defendant over a discovery production could “hardly” be described as done in good faith to resolve issues. Cedar Grove, at *6.

The parties had a telephone meet and confer that had two very different stories, depending on which party was telling the story. The Defendants offered three attorney declarations that recounted the call, which the Plaintiff’s attorney did not dispute. The Court found that “unacceptable.” Cedar Grove, at *7.

In summarizing the dueling meet and confers, the stated the “Plaintiff has given the meet and confer requirement short shift.” Cedar Grove, at *8. Moreover, the Plaintiff never discussed the only remaining discovery dispute between the parties regarding an attorney retained to assess insurance coverage. Id. Furthermore, the motion to compel pertained to amending the Defendant’s privilege log, which was produced before the briefing on the motions had even been finished. Cedar Grove, at *9.

This is right up there with Admiral Kendal Ozzel coming out of light speed directly above Hoth. Unlike Vader, the Court took this moment as a learning opportunity, stating:

The Court will take the opportunity to advise the Parties of the necessity of meaningfully cooperating in discovery. What this means is actively meeting and conferring regarding discovery issues before bringing any concerns to the attention of the Court. In order for the Parties to engage in meaningful, cost-effective discovery, they must cooperate in accordance with the spirit and purposes of the Rules. The Court strongly encourages the Parties to promptly meet their respective discovery obligations without resort to motion practice and advises them that “it would be wise for the parties to consider the letter and spirit of the Rules regarding discovery and engage in open, cooperative, meaningful and efficient discovery practices.”

Cedar Grove, at *10-11, citations omitted.

The next issue addressed whether the attorney-client privilege or work product doctrine applied to communications from an attorney retained to analysis possible liability and its renewal policy. Cedar Grove, at *13. What followed was beautiful analysis of what was protected by the attorney-client privilege and what was protected by the work product doctrine. Effectively summarizing the work product doctrine, for a document to be protected, it must: “1) be ‘prepared in anticipation of litigation or for trial’ and (2) be prepared “by or for another party or by or for that other party’s representative.” Cedar Grove, at *18.

The review of the subject communications sought for production revealed they were covered by the work product doctrine. Cedar Grove, at *18-19.

The Plaintiff argued that the Defendant was not producing written claims files improperly withheld behind the work product doctrine, taking the position that the files “simply must exist.” Cedar Grove, at *19.

The Court addressed the Plaintiff’s argument in footnote 4, stating:

In addressing this argument, the Court is tempted to simply invoke Occam’s razor — “that in explaining anything, no more assumptions should be made than necessary.” See ACLU v. Clapper, 804 F.3d 617, 624 n.2 (2d Cir. 2015) (quoting Oxford English Dictionary (3d ed. 2004)). Perhaps it is too much of an assumption to think that Defendant seriously trying to mislead both Plaintiff and the Court by simply waving its hand and stating that “these aren’t the droids you’re looking for.” Star Wars: Episode IV — A New Hope (Lucasfilm 1977). A simpler explanation is that many of those documents do exist — and Plaintiff has received them (and would have received them) without this Court’s intervention.

Cedar Grove, at *20, footnote 4, emphasis added.

The Court ultimately held that the subject documents were protected by the work product doctrine and likely covered by attorney-client privilege under state law. Cedar Grove, at *21-22.

Bow Tie Thoughts

There are many Federal Judges who masterfully explain Civil Procedure and enjoy Star Wars. It is good to know Judge Richard Jones can discuss the work product doctrine and make an Obe-Wan Kenobi reference.

Conducting privilege review often is reduced to attorneys simply checking a box that an email, document, or Excel file is “privileged.” The term “privilege” cannot be an all-encompassing term to be used in a privilege log. What is the actual privilege being asserted? If it is an attorney-client communication, it has to be a communication from the client to a lawyer seeking legal advice, or a communication from the lawyer to the client giving legal advice.

Lawyers should define the privileges in their case and set-up document review to reflect those privileges. If privilege issue tagging is done, coupled with notes stating the claimed privilege, the reviewing attorneys are building their privilege logs as they conduct document review. This is far easier then trying to later use the Force to construct an effective privilege log as a later step.

Status Messages and Client Confidences

Web 2.0 marketing is a highly effective way for lawyers to promote their services to prospective clients.  Web 2.0 marketing is leveraging collaborative programs hosted over the Internet, such as social networking sites or Wikis, to provide content highlighting an attorney’s services.  This form of marketing could also result in disaster if used incorrectly. 

Client Confidences: The Work Product Doctrine and the Attorney Client Privilege

tugboatThe sailor in me remembers Hickman v Taylor 329 U.S. 495 (U.S. 1947) because it had a tug boat that sank.  The lawyer in me remembers it for the Work Product Doctrine.

 

For those not familiar with the Work Product Doctrine, the Doctrine protects documents prepared in anticipation of litigation from discovery, including mental impressions, conclusions, opinions, or a lawyer’s legal theories.  Chemtech Royalty Assocs., L.P. v. United States, 2009 U.S. Dist. LEXIS 27696 (M.D. La. Mar. 30, 2009).  The Work Product Doctrine is codified by Federal Rule of Civil Procedure 26(b)(3).  The Doctrine covers material prepared by a party and a party’s representative, which includes lawyers, consultants or agents.  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), citing FRCP 26(b)(3). 

istock_000002813503xsmallThe Attorney Client Privilege is a different concept.  The Attorney Client Privilege protects “confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such disclosures.”  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), (citations omitted).  Additionally, the privilege applies “only [to] those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege.” Id.

California law also requires a lawyer to, “…maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Cal Bus & Prof Code § 6068

Additionally, attorneys should realize they are responsible for their staff, consultants, non-lawyers, and others also using technology. ABA Model Rule of Professional Conduct, Rule 5.1, Rule 5.2 and Rule 5.3 outline these responsibilities.

Enter Web 2.0 Marketing

There is the potential for disclosure of information protected by both the Work Product Doctrine and the Attorney Client Privilege on social networking sites such as Twitter or Facebook.  These services are popular Web 2.0 sites where users can create public profiles, invite other users to follow their daily updates, micro-blogging and other information sharing.  It does not take much to imagine someone new to Web 2.0 marketing disclosing too much information to their “friends” or “followers.”

Here is how the risk of disclosure is possible: a Facebook user posts a status message they deem harmless, such as “I just landed ‘Company A’ as a client and have a bunch of back-up tapes to restore.”

Does this disclose any mental impressions or strategy about the case?  Probably not, but it is flirting with disclosure.  Moreover, Company A would probably not be thrilled with their lawyer announcing their actions in a lawsuit to 300 “friends.”

After reviewing data from imaged hard drives, the same individual posts the status message, “Wow, they really blew preserving their emails.” 

If the client is somehow identifiable, there is a problem, because a mental impression of the client’s ESI is being disclosed.  While the “friends” are probably in no way related to anyone in a lawsuit, disclosing a client confidence to one person is one too many. 

This Does Not Mean Don’t Market!

This is only a call to action for common sense.  Lawyers, consultants and their agents should exercise reasonable care in promoting their services.  A status message of “Working on a Summary Judgment Motion” or “Preparing for the CMC” or “I settled the case!” is not disclosing any legal theory or confidence.  Moreover, using Facebook with the JDSupa application to show published documents can be very effective marketing.  However, saying a client name, plus a specific argument or confidence in a status message, might put a tech savvy lawyer in hot water. 

Web 2.0 empowers lawyers to promote their services and demonstrate their knowledge in ways few people could imagine when Silicon Valley engineers were teenagers building computers in the 1970s.  Lawyers marketing their services on Facebook, Twitter and other social networking sites should exercise reasonable care to protect client confidences.  While this may seem like stating the obvious, the potential for someone saying too much in a status message is very real.