Page 10 - E-Discovery

S10 | MONDAY, OCTOBER 5, 2015 | E-Discovery
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Nonparties
discovery context, with expansive rules of disclosure, it is Strategies
sion promulgated rules that permit and
reasonable to conclude that the legislature would employ a broader “possession, custody or control” standard.”).
3. Id.
encourage the use of categorical privilege
logs.11 A categorical privilege log does not 4. See, e.g., Osberg v. Foot Locker, No. 07-cv-1358
« Continued from page S3
« Continued from page S5
require the traditional document-by-docu- (KBF), 2014 WL 3767033, at *1 (S.D.N.Y. July 25, 2014).
forthcoming and to limit the scope of pres- to a production set late in the review pro- ment logging of the privilege claims being 5. See Smith v. Superior Ct., 151 Cal. App. 3d 491, 496
ervation to minimize business disruption cess often do not undergo all of the privi- asserted. It permits a party claiming privilege (1984) (the court in that case reasoned that no innocent victim should go uncompensated and that “[f]or every
and/or to allocate the cost and expense lege safeguards previously discussed. These to make a categorical claim across numerous wrong there is a remedy”). Fourteen years after Smith, in
associated with preservation. Moreover, if safeguards should be re-applied and checked documents. While categorical privilege logs Cedars-Sinai Medical Center v. Superior Ct., 954 P.2d 511
a preservation request includes information across the production set before it is finalized.
can be efficient, it is recommended to meet (Cal. 1998), the Supreme Court of California overruled
leading a nonparty to reasonably believe It is also important to check the final and confer with the receiving party and come the Second District Court of Appeal’s decision to recog-
nize separate causes of action for intentional spoliation. The court refrained from recognizing the spoliation torts
and anticipate it may become a party to the production deliverable against what was to terms with the specific application of this because it found that they were inherently speculative,
suit, a duty to preserve relevant evidence marked for production to make sure the two approach to avoid later disputes. Memori- violated the policy against derivative tort remedies, and
should be presumed and the appropriate are consistent. This is particularly important alizing these terms in a court order is also decided that traditional remedies were adequate to de-
preservation protocol initiated.
when producing documents with redactions recommended.
ter spoliation. Id. at 524.
New York courts have made clear that the because redacted documents require several Categorical privilege logs offer many poten- 6. See, e.g., Smith v. Howard Johnson, 615 N.E.2d 1037 (Ohio 1993) (recognizing independent tort for first-party
burden is on parties to a litigation to take additional technical steps to produce prop- tial advantages but there is little case law to intentional spoliation and third-party intentional spo-
steps to preserve documents of nonparties.26 erly without disclosing privileged content. date defining what information is required liation); Hannah v. Heeter, 584 S.E.2d 560 (W. Va. 2003)
As such, parties seeking preservation from Oftentimes production documents are pro- in these logs. New York courts have already (recognizing first and third-party intentional spoliation);
Oliver v. Stimson Lbr. Co., 297 Mont. 336, 993 P.2d 11
nonparties should consider whether it is duced in components including the docu- indicated that paltry categorical descriptions (1999); Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. App. 1998).
necessary to serve a subpoena or preserva- ment images, document text and the native will not be sufficient.12 As always, litigants 7. Fletcher v. Dorchester Mut. Ins. Co., 773 N.E.2d 420,
tion order to impose a legal obligation on the electronic document as it originally existed. need to know the local court rules regarding 549 n.9 (Mass. 2002) (listing the majority of courts de-
nonparty. Indeed, there is little dispute that Some things to check in the final production privilege and how to properly log privilege clining to recognize the tort of spoliation).
when nonparty receives a subpoena it must deliverable are (1) that redactions exist on claims.
8. MetLife Auto & Home v. Joe Basil Chevrolet, 1 N.Y.3d
take reasonable steps to preserve documents the production images where intended and as E-discovery continues to pervade the 478, 775 N.Y.S.2d 754 (2004).
9. Id. at 481.
that are responsive to the subpoena or face intended and that they are “burned” into the litigation landscape, increasing the need for 10. Id. at 482.
an action for contempt before the court that production images, (2) the production text smart privilege strategies. Understanding the 11. 1 N.Y.3d at 484.
issued the subpoena. Utilizing court orders for redacted documents has been updated to protections available under Fed. R. Evid. 502 12. 9 N.Y.3d 69 (2007).
13. Id. at 73.
to require preservation may also open the remove any redacted content, and (3) native and implementing practical safeguards during 14. Id.
15. Id. at 73-74.
lines of communication with a nonparty as files are not being provided for redacted docu- the e-discovery process puts litigators in the 16. Id. at 80.
to the scope and burden of preservation for ments nor the parent of any redacted docu- best possible position to avoid the production 17. Id. at 81.
the nonparty.
ment (i.e., where a PDF document is redacted of privileged documents.
18. 63 A.D.3d 583 (1st Dep’t 2009).
•
but attached to an email, the email itself needs 19. Id. at 584.
•••••••••••••• •••••••••••••• to be withheld natively because it includes an ••••••••••••• • ••••••••••••• ••
20. Id. at 585.
21. Id. at 586.
1. Mazzei v. Money Store, No. 01cv5694 (JGK) (RLE), unredacted version of the PDF file). While it 1. Andrew J. Peck, Forward: A Survey of Emerging Is- 22. 906 N.Y.S.2d 887 (Sup. Ct. Kings County 2010).
2014 WL 3610894, at *2 (S.D.N.Y. July 21, 2014) (citing is often unrealistic to check every redacted sues in Electronic Discovery, 26 Regent U. L. Rev. 1, 5 23. Id. at 894.
Zubulake v. UBS Warburg, 220 F.R.D. 212, 218 (S.D.N.Y. document for these things, a simple spot- (2013-2014).
24. Id at 893.
2003)).
2. See Fed. R. Evid. 502 Advisory Committee Notes.
25. See also Fletcher, 773 N.E.2d at 425 (“A third-party
2. In re NTL, Inc. Sec. Litig., 244 F.R.D. 179, 195 (S.D.N.Y. 2007); see also Commonwealth of Northern Mariana Is- check will usually suffice.
3. Part of the power of the rule is that it imposes fed- witness may also agree to preserve an item of evidence and thereby enter into an enforceable contract.”).
lands v. Canadian Imperial Bank of Commerce, 21 N.Y.3d Technology can also play a useful role in eral evidentiary rules on state courts.
4. Fed. R. Evid. 502(a).
26. See, e.g., MetLife, 1 N.Y.3d at 484 (focusing on the
55, 62,, 967 N.Y.S.2d 876, 881 (2013) (“[I]n a documentary
the production QC process. While technology 5. Fed. R. Evid. 502 Advisory Committee Notes.
“burden of forcing a party to preserve”).
assisted review (TAR) is frequently mentioned 6. Fed. R. Evid. 502 Advisory Committee Notes.
in the context of a general responsiveness 7. Fed. R. Evid. 502 Advisory Committee Notes. In
review, it can also be used as a privilege QC some claw-back agreements, the parties dispense with privilege review entirely in favor of an agreement to re-
Proportionality
tool. By using documents already determined turn inadvertently produced privileged documents. In appeared would provide non-duplicative information;
by attorneys to be privileged, TAR tools can a quick peek agreement, the producing party makes all “allowing plaintiffs a moderate number of additional cus-
potentially responsive documents available in response todians does not seem disproportionate to the size and
attempt to score or rank the documents in to a request, the requesting party reviews the materials scale of this action”).
8. Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294,
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the potential production set based on how and identifies the documents it wants, and the produc- ing party then reviews that subset of documents for 301 (S.D.N.Y. 2012).
(denying additional discovery based on a proportional- similar they are to previously identified privi- privilege and produces the non-privileged responsive 9. Id. at 303 (quoting 11 Sedona Conf. J. 289, 294
ity review, holding that it was “senseless” to require one party “to go to great lengths to produce data” that the leged documents. An additional QC step can documents.
(2010)).
other party appeared not to need to calculate its dam- include a quick review of the highest scoring 8. Andrew J. Peck, “Forward: A Survey of Emerging Is- 10. Id. at 306.
ages).
documents.
sues in Electronic Discovery,” 26 Regent U. L. Rev. 1, 5 (2013-2014).
11. Id. at 306-07.
12. See, e.g., Daniels v. City of New York, 2014 WL
2. Fed. R. Civ. P. 26(b)(1), eff. Dec. 1, 2015 (emphasis Finally, be sure to record the production 9. Id.
325934, at *1 (S.D.N.Y. Jan. 27, 2014) (Castel, D.J.); Dong-
added).
quality control efforts with regard to privi- 10. N.Y. C.P.L.R. §3122
guk Univ., 270 F.R.D. at 72 (Fitzsimmons, M.J.). See also
3. Fed. R. Civ. P. 26(b)(1).
4. See Dongguk Univ. v. Yale University, 270 F.R.D. 70, lege. It is good practice to develop and use 11. 22 N.Y.C.R.R. §202.70(g), 11-b.
Tucker v. American Intern. Group, 281 F.R.D. 85, 91 (D.
73 (D. Conn. 2010) (Rule 26(b)(2)(C) includes a “pro- 12. McNamee v. Clemens, No. 09 cv 1647, 2013 U.S.
Conn. 2012) (Haight, D.J.) (under Rule 26(b), “courts im- pose a proportionality test to weigh the interests of the
portionality consideration [that] was added in 1983 a checklist for each production that ensures Dist. LEXIS 179736, at *6 (S.D.N.Y. Sept. 17, 2013); SEC v. Yorkville Advisors, 300 F.R.D. 152 (S.D.N.Y. 2014).
parties to determine whether discovery, even if relevant,
specifically to address the perceived problem of over- and records checks like these were made. should be allowed to proceed”); Pippins v. KPMG, 279
discovery”).
This documentation will be instrumental if a F.R.D. 245, 255 (S.D.N.Y. 2012) (McMahon, D.J.) (applying
5. 217 F.R.D. 309, 316 & n.30 (S.D.N.Y. 2003) (observ- ing that the broad discovery allowed under Rule 26(b) privileged document should ever sneak out principle of proportionality to preservation obligations);
(1) was subject to the limitations of 26(b)(2), which im- without a protective order in place because, Predictive Coding
Orbit One Commc’ns v. Numerex, 271 F.R.D. 429, 436 n.10 (S.D.N.Y. 2010) (Francis, M.J.) (same).
posed “general limitations on the scope of discovery in as discussed above, attempting a clawback 13. EM Ltd. v. Republic of Argentina, 695 F.3d 201, 207
the form of a ‘proportionality test’”).
under Fed. R. Evid. 502(b) will place the steps (2d Cir. 2012).
6. See, e.g., Artt v. Orange Lake Country Club Realty, taken under scrutiny.
14. 287 F.R.D. 182, 192-93 (S.D.N.Y 2012), adopted sub
2015 WL 4911086, at *1 (M.D. Fla. Aug. 17, 2015) (“Rule 26 also requires that discovery be proportional to the « nom. Moore v. Publicis Groupe SA, 2012 WL 1446534
needs of the case. When a person signs a discovery re- Continued from page S9
(S.D.N.Y. April 26, 2012).
15. 287 F.R.D. at 192.
quest she/he is certifying ‘that to the best of the person’s Privilege Logs
involves quite a few issues and potential 16. 2014 WL 4923014, at *1 (M.D. Tenn. July 22, 2014).
knowledge, information, and belief formed after reason- hurdles. To successfully navigate the pro- 17. Id.
able inquiry’ the discovery request is neither unreason- The end product of a privilege review is cess, it is critical to have an e-discovery 18. 2014 WL 2548137, at *13 (S.D. Ga. June 6, 2014)
able nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the often the privilege log. A privilege review service provider with the appropriate (Smith, J.).
amount in controversy, and the importance of the issues strategy should take into account whether technology, pricing and experience, as 19. 2015 WL 872294, at *1 (S.D.N.Y. March 2, 2015). 20. See, e.g., Turner v. The Paul Revere Life Ins., 2015
at stake in the litigation.’” (citing Rule 26(g)(1)(B)(iii))); a privilege log is needed and, if it is, what well as the assistance of counsel with the WL 5097805, at *1 & n.2 (D. Nev. Aug. 28, 2015) (applying
Coleman v. Starbucks, 2015 WL 2449585, at *5 (M.D. Fla. it must include. In New York state courts, appropriate knowledge and experience of the revised proportionality standard to scope); Uppal
May 22, 2015) (“Concern about overbroad discovery the CPLR requires identification of (1) the these issues.
v. Rosalind Franklin Univ. of Medicine and Science, __
requests doubtless provided some of the motivation for the Rules Advisory Committee to propose making F. Supp. 3d __, 2015 WL 5026228, at *3, n. 5-6 (2015) (dis-
proportionality concerns an express component of the type of document; (2) the general subject •••cussing the role of proportionality in the Rules and the pending amendment).
scope of discovery in the pending 2015 amendments to matter of the document; (3) the date of the ••••••••••••••••••••••••••
21. 2015 WL 4469704, *3 n.2 (S.D.N.Y. June 29, 2015)
Rule 26.” (quotation marks omitted)).
document; and (4) such other information 1. Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 128-29 (Preska, C.J.).
7. City of Sterling Heights Gen. Employees’ Ret. Sys. v. as is sufficient to identify the document for (S.D.N.Y. 2015).
22. 2015 WL 5097805, at *1 (citing Rule 26(b)(1), Advi-
Prudential Fin., 2015 WL 5055241, at *2 (D.N.J. Aug. 21, a subpoena duces tecum.10
2. See Dynamo Holdings Ltd. Partnership v. Com- missioner of Internal Revenue, 143 T.C. No. 9, 2014 WL sory Comm. Notes (2015)).
2015) (citation omitted) (granting motion to add addi- tional custodians to review, but limiting to those that
Last year, the New York Commercial Divi-
4636526 (Sept. 17, 2014).
23. Id. at *1 & n.2. 24. Fed. R. Civ. P. 1.