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The role of electronically stored information (“ESI”) and new technologies has grown tremendously in recent years.  This growth has a direct impact on discovery specifically, and the practice of law, generally.   And so, the new practical reality is that attorneys need to be technologically literate and competent.  This should come as no surprise to those who read my blog.  Earlier posts discuss the ABA’s implementation of Model Rule 1.1. – which establishes a lawyer’s general duty of competence, including the benefits and risks associated with relevant technology – and others discuss other states’ explicit technology CLE requirement.

While New York does not have any technology CLE requirement (yet), it has adopted a technology competence for lawyers (along with 27 other states).  What exactly must a lawyer do to fulfill his/her duty of technology competence for e-discovery?  Regrettably, there is no easy answer, but a 2015 ethics opinion from California provides a very useful roadmap and identifies nine core requirements necessary to fulfill one’s duty.   Today’s blog will discuss one of those core requirements, with subsequent blogs to address the others.

  1. Assess E-Discovery Needs and Issues:

This first requirement mandates that an attorney take a long-view of the matter he or she is dealing with (sometimes in consultation with an ESI vendor) and identify e-discovery needs and issues.  Topics to consider include identifying the custodians (i.e., sources of potentially responsive ESI) and identifying any time-sensitive sources, any employee status changes, and/or IT upgrades.  Also give thought to whether third-parties within your effective control have potentially responsive information.  Think about privilege concerns and the import of a claw back agreement.  The ultimate goal of this early phase is to spend time thinking about needs and issues that might arise over the life cycle of the matter.  Obviously, not every issue can be anticipated but you may be surprised how many can be assessed and addressed early in the discovery process.

Have questions?  Please contact me at kcole@farrellfritz.com.

Often viewed as a necessary evil, the Rule 26(f) conference can serve as an invaluable opportunity to meaningfully discuss discovery such that the process is streamlined and seeks to avoid unnecessary (and often costly) disputes.   Generally speaking, Rule 26(f), among other things, sets the deadline for the conference as soon as practicable and at least 21 days before the scheduling conference, and lists several required topics for the conference, including preserving discoverable information. Although a litigant should use the Rule 26(f) conference to reduce the risk of spoliation claims through agreements on preservation, as well as reduce costs by limiting the scope of e-discovery, achieving results is almost entirely dependent on the attorney’s preparation.  Indeed, being well informed about your client, its documents ‒ including ESI ‒ and its goals will allow for a productive discussion rather than an empty formality.  But, how exactly do you prepare and what should you think about before the conference?

To prepare for the conference, it helps to think about the end game and to formulate the steps necessary to get there.  The below thoughts on preparation/topics are intended merely as a guidepost and are not exhaustive.

  • Understand your client’s ESI:  What kind of ESI is required to prosecute the client’s claims and defend against those of the adversary?  Where does that ESI reside?  To this end, it is important to become familiar with your client’s network architecture, including what hardware exists, and where.   You should strive to understand the client’s knowledge management (when/how is ESI stored), system knowledge (what is stored and where) and who is responsible for maintaining and storing data.  For example, are there physical email servers on site, or are the servers virtual?  What is necessary to access and collect data from each server?  Relatedly, give thought to addressing admissibility and how authenticity may be established over the documents (See “The New Rules of Federal Evidence Have Arrived“).
  • Identify Custodians:  Take time to identify employees/custodians likely to have potentially responsive ESI.  Preservation comes at a cost and if you fail to understand your custodians, you may over-preserve.  Consider, for example, if the client is a national organization with offices throughout the U.S.  If all of the relevant custodians work out of the Omaha office, with all of the potentially responsive data located on a particular server, is there need to preserve the content of all other servers?  Consider interviewing those custodians to identify other relevant custodians.
  • Understand the timing and execution of Hold Notices, and Related Thorny Issues: At the conference the parties should determine the scope of the duty to preserve.  For example, be prepared to disclose (and ask adversary about) the status of the litigation hold.  Has one been issued?  If so, when and who received it.  If not, why not?  You may even seek to inquire about what subjects and sources the Hold covers and if there is any procedure in place for auditing compliance.  Are there any time-sensitive data sources involved and if so, have auto-delete and auto-archive functions been turned off for those data sources?  Is data from third-parties potentially responsive?  And, if so, what steps, if any, have been taken to preserve that data?   Have any key custodians left the company or potentially leaving?  If so, what steps are being taken to preserve his/her data?  Because of the large increase in e-data and the various locations where that data may reside, think about ways to narrow defensibly the scope of what you preserve.
  • Understand Collection:   While you may agree to preserve all of Katy Cole’s emails from 2010 to the present, that doesn’t mean you are agreeing to review for production all of that data.  What will be done to identify the materials that will be reviewed?  Can the parties agree upon search terms, date delimiters and other methodologies to limit the universe of material? Consider entering an agreement as to appropriate date ranges, custodians, systems, file types, and search terms.
  • Understand Privilege Obligations:  You should also discuss privilege during the Rule 26 conference.  Consider seeking a stipulation or Rule 502(d) order stating that disclosure of privileged information does not constitute a waiver of the attorney-client privilege in the instant or another proceeding.  Discuss whether a traditional privilege log is practical or burdensome for large volumes of ESI. Would it be preferable to log privileged emails by thread groups (i.e., a message and its attachments; related messages in a string of replies and forwards)?  Or are categorical logs (i.e., those that describe withheld categories instead of listing withheld records) preferable?
  • Understand Production Format:  Don’t leave format to the whim of your adversary.  Discuss expectations.  Indeed, there is little worse than receiving a thumb drive that contains various unsearchable PDFs (well, maybe a paper production is worse).  Discuss your production specifications and be prepared to produce in the same format you demand production.  Relatedly, is there any paper in the production?  If so, be certain to request that Optical Character Recognition (OCR [i.e., the process by which paper documents are converted into editable, searchable computer files]) be applied for ease text-search ability.  And, are you producing in a fell swoop or will the parties engage in phased discovery?

A meaningful and productive Rule 26(f) conference can streamline discovery, avoid unnecessary costs and avoid spoliation concerns.  It should be embraced as an opportunity to reach agreement and engage in a cooperative discovery process that will promote proportionality.

Have questions?  Please contact me at kcole@farrellfritz.com.

On August 1, 2018, Judge Beetlestone (E.D. Pa.) granted Defendants’ motion for sanctions based upon unequivocal evidence that Plaintiffs manipulated and fabricated emails material to the litigation.  Although the Court imposed the drastic sanction of dismissing Plaintiffs’ complaint, the Court provided a detailed and instructive analysis supporting its ultimate conclusion.  The Court’s analysis, addressed below, can be read in full here.

Facts

The underlying matter arises from the sale of Second Opinion, Inc., (“SO”).  SO was a service business that connected lawyers representing personal injury plaintiffs with medical professionals who could serve as experts in litigation.  Plaintiffs entered into an agreement to purchase the assets of SO and eventually filed a lawsuit alleging fraud, misrepresentation and breach of contract against Howard and Wendy Weiss – the prior owners of SO and Defendants to the lawsuit.   The gist of the dispute was that the Defendants made false representations about the nature of SO and the assets the Plaintiffs were to receive pursuant to the purchase agreement.

In response to a letter request by the Defendants, the Court held a hearing on the record in December 2017 to decide a discovery dispute concerning whether Defendants’ interrogatories contained an impermissible number of subparts.  At that hearing, the Court was advised of a newly discovered issue – that there were a number of significant discrepancies between emails produced by Defendants and emails produced by Plaintiffs.

A forensic expert was retained to examine each party’s computer(s) and eventually the Defendants moved for sanctions.  In late June 2018, the Court received an ex parte fax from Plaintiff requesting dismissal of the suit, including the counterclaims filed by Defendants.

On July 5, 2018 the Court held a conference upon the record to discuss Defendants’ pending motion for sanctions.  During that conference Plaintiff – in a radical departure from his faxed letter– represented to the Court he had no knowledge of any counterclaim against him.  At the conclusion of the hearing, the Court scheduled another hearing to address the spoliation motion.

Spoliation

At its core, the issue boiled down to 7 emails and which, among them, were authentic.

For example, Email 3 – an email purportedly from Plaintiff to Defendant — stated, “[w]e are interested in cutting off training.  We are interested in taking over the business and moving it forward. We believe we can do this.”

Yet, Email 4  — an email sent at the exact same time as Email 3 and also from Plaintiff to Defendant stated, “[we] are not interested in cutting off training.  We are interested in taking over the business and moving it forward while still learning.  We believe we can do this.”

The forensic examiner testified that Email 3 was found only on Plaintiff’s computer and was a fabrication; and Email 4 was found on both Plaintiff’s and Defendant’s computer.  In what the Court observed was the most telling indicia of purposeful fabrication, is that Email 4 (the authentic email) was located in three different locations in Plaintiff’s computer, indicating that he had deleted the file.   Plaintiff testified but the Court found his testimony not credible, confused and riddled with inconsistencies.

Decision

In order to determine the appropriate sanction, a Court must weigh three factors:

(1) the degree of fault of the person who destroyed or altered the evidence;

(2) the prejudice suffered by the opposing party; and

(3) the existence of alternative sanctions.

In assessing these factors the Court concluded that Plaintiff “intentionally altered and manipulated evidence” and when confronted with the altered emails he “accused the Defendants of having manipulated the authentic emails.  [Plaintiff] actively deleted emails and the evidence shows that he continued to delete pertinent files as recently as…after the deposition when he was confronted with the fabricated emails.”  And so, the Court determined Plaintiff’s actions were intentional and willful.

The Court then determined that notwithstanding the early discovery of Plaintiff’s actions, the prejudice “was substantial.”  Specifically, Defendants had to hire an expert and expend significant sums of money (motion practice, full day of testimony).  Additionally, the fabricated emails materially assisted Plaintiff’s case against Defendants.  Such actions, said the Court, is a “wrong against the institutions set up to protect the public….fraud cannot be complacently tolerated…”  Thus, the Court found Plaintiff’s behavior threatened to undermine the public’s faith in courts and the discovery process.

Finally, the Court assessed the various sanctions available to it inherently and specifically pursuant to Rule 37.  The Court chose not to impose an adverse jury instruction as that would not remediate the prejudice to Defendants, would not deter this type of egregious conduct, and would be a minimal sanction where, as here, there was significant effort and costs imposed during the process.  In opting not to impose only a financial sanction the Court noted that doing so would convey the wrong message to litigants that money could cure one’s improper actions.   And so, according to the Court, based upon well-established law in the Third Circuit, the only remedy available that was proportional to the deleterious and egregious fraudulent conduct involved here was the outright dismissal of Plaintiffs’ claims.  Indeed, “[a] party’s resort to fabricated evidence justifies denial of all relief to that party.”

Conclusion

There is little that needs to be said about this decision, as we all understand the egregious and continual conduct that was at play in this matter and the need for swift and severe sanctions.  The decision, however, reminds us of the vast discretion a Court has when imposing sanctions.

Have questions?  Please contact me at kcole@farrellfritz.com.

It has become apparent that lawyers must keep informed of changes in the law, including the benefits and risks associated with relevant technology.  And, relevant technology is not limited to electronic dockets (i.e., NYSCEF, and ECF) and preserving text messages a client sends about his/her representation.  Rather, relevant technology includes today’s world of social media including Facebook, Twitter, Instagram, and Snap Chat to name a few.  Today’s blog is intended to highlight a few of the risks associated with social media.

1.  Know What Your Client is Posting on Social Media

In a 2014 case out of the Florida Court of Appeals, the daughter of the winning party posted a comment on her Facebook page commenting about the outcome of the lawsuit and the European vacation paid for as a result.  Unfortunately, the post violated the confidentiality provisions of the parties’ settlement and torpedoed the settlement.  Ouch!  Chances are, the attorneys had no idea what the daughter was up to but this case is a good reminder to know what your client is posting on social media.

2.  Don’t Spoliate, or Condone the Spoliation of Evidence

Social media posts, like any other type of “evidence” may be relevant to the lawsuit in which you are involved.  And so, like any other type of evidence, counsel may not alter or destroy relevant social media posts nor can we direct or assist others in doing so.  But, what happens when you tell your client to “clean up” his Facebook page?

In one particularly egregious example of “deceptive and obstructionist conduct,” a lawyer directed his client to clean up his Facebook page, and then ultimately deactivated the client’s account before signing a discovery response the client did not have a Facebook account. The Court levied a collective fine of $722,000 in sanctions against the lawyer and the client, and referred the attorney to the Virginia State Bar.   Other less egregious “housekeeping efforts” can also result in spoliation motions and adverse inferences at trial (see e.g. Gatto v. United Airlines Inc.,  United States District Court, District of N.J., Civil Action No.: 10-cv-1090-ES-SCM [personal injury plaintiff intentionally deactivated Facebook account during discovery, unbeknownst to his lawyer]).  In addition to the spoliation dangers presented by social media, Gatto dovetails nicely with Point I, supra, and serves as an important reminder to know both what your client is posting, and what your client may be deleting.

3.  If You Resort to Social Media to Research a Prospective or Sitting Juror, Do it Ethically

Various ethics opinions (see e.g., the NY County Lawyer Association Opinion 743 (2011) the New York City Bar Association Commission on Professional Ethics Formal Opinion 2012-2 (2012) say it is okay to research perspective and sitting jurors through social media.  However, make sure you do not communicate with the individual in the process so you don’t run afoul of the “no contact” rule.  See, e.g., Rule 3.5 of the New York Rules of Professional Conduct.  It is therefore critically important before you, a colleague or agent conduct any social media research about a juror, that you understand how the particular network operates. For example, certain jurisdictions find the automatic system-generated notice, “Katy Cole has viewed your LinkedIn profile,” to be a “communication” and therefore an improper communication with a prospective juror (or witness, or party). See previous blog post, “Ethical Information Gathering When Using Social Media.”

4.  Understand the Impact of What You Share

Finally, it is important to remember that the essence of the legal profession is confidentiality and discretion.  And yet, there are many public examples of lawyers demonstrating, on social media, a lack of judgment when, for example, they share tweets or posts about clients or trial strategies.  Such behavior is really a recipe for disaster as a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation.  Therefore, a comment about even a generic/unidentified client or a case runs the risk of violating one’s duty of confidentiality to the client. See, e.g., “Blogging Assistant PD Gets 60-Day Suspension for Posts on Little-Disguised Clients,” American Bar Association, May 26, 2010.

The take-away is simple: Rather than run into an ethics problem as a result of a social media post, tweet, hashtag, etc., think before you post.

Have questions?  Please contact me at kcole@farrellfritz.com.

Angela Lawrence (“Lawrence”) was a plaintiff in a civil rights action that alleged officers of the New York City Police Department (“NYPD”) entered her home in August 2014 without a warrant, pushed her to the ground, damaged her property, and stole $1,000 in cash.   In September 2016, Lawrence provided photographs to her attorney (“Leventhal”) that she claimed depicted the condition of her apartment several days after the incident and which appeared consistent with Lawrence’s recitation of what transpired.  Leventhal accepted his client’s representations and, after reviewing the photographs, saved them to a PDF, Bates-stamped them, and produced them to Defendants At that time, Leventhal was unfamiliar with electronically stored metadata and “did not doubt [that] the photographs were taken contemporaneously with the occurrence of the damage.” (Decl. of Jason L. Leventhal, Esq., in Opp. to Defs.’ Mot. For Sanctions & Attorneys’ Fees & Costs, ECF No. 123 (“Leventhal Decl.”) 15–16.)

During a December 2016 deposition, Lawrence testified that her son or a friend took the photographs two days after the incident. In a subsequent deposition in April 2017, Lawrence asserted that she had taken most of the pictures, that her son had taken a few, and that none of them were taken by the previously described friend.

At that juncture, Leventhal believed his client had memory problems but did not believe she was testifying falsely. In view of Lawrence’s conflicting testimony, Defendants requested the smartphones which Lawrence claimed were used to take the photos. In August 2017, Leventhal objected, but agreed to produce the photographs’ native files, which included metadata. When Defendants checked the photographs’ metadata, they learned that 67 of the 70 photographs had been taken in September 2016—two years after the incident and immediately before Lawrence provided them to Leventhal.

In September 2017, Defendants moved for sanctions against Lawrence and Leventhal. The Court granted in part, and denied in part Defendants’ motion.  Specifically, the Court found Lawrence committed a fraud upon the Court, and dismissed her action.  The Court, however, spared the attorney and held his failure to discover that his client had lied about when digital photos were taken in order to support her case against the NYPD was not sanctionable even though he could have uncovered his client’s fraud by checking the images’ metadata.

In reaching this conclusion Judge Pauley examined each of Rule 11, Rule 26, Rule 37 and the Court’s inherent powers to impose a sanction. While the decision itself (Lawrence v. City of New York, 2018 BL 267050, S.D.N.Y., No. 15cv8947, 7/27/18) provides a detailed analysis of each Rule and its applicability, for purposes of this blog, the Court concluded that none of the Rules provided a basis for imposing a sanction on Leventhal.

The Court, noting that beyond the powers conferred expressly by rule and statute, a federal court has inherent power to sanction a party for bad faith litigation conduct, determined that the creation of staged photos was the beginning of a sustained effort by Lawrence to mislead Defendants and this Court.*   Ultimately, the Court concluded Lawrence’s willful and repeated conduct “requires that the policy favoring adjudication on the merits yield to the need to preserve the integrity of the courts” and dismissed her lawsuit.   Lawrence, however, was spared any sanction.

Conclusion

This decision is an important reminder that we, as attorneys, must verify a client’s representation, especially involving evidence and discovery.  We cannot accept blindly a client’s representation.  Indeed, if an attorney is complicit in making a false or misleading statement to Court or an adversary, we are subject to sanctions and repercussions.  In fact, Judge Pauley showed mercy to Leventhal that is not embraced by all Courts.  See, e.g., Johnson v. BAE Sys., Inc., 307 F.R.D. 220, 226 (D.D.C. 2013) (sanctioning attorney for producing doctored medical records without any inspection or inquiry); Brown v. Tellermate Holdings Ltd., No. 2:11-CV-1122, 2014 WL 2987051 (S.D. Ohio July 1, 2014) (sanctioning attorney who relied on client representations that resulted in failure to uncover basic information about an ESI database, resulting in false or misleading statements to opposing counsel that hampered their ability to carry out discovery).

* It was only after Defendants discovered the metadata that Lawrence acknowledged that the photos were taken in 2016. Lawrence’s attempts to explain the photographs and her deposition testimony continue a pattern of evasion and untruths. First, she asserted the production was caused by conjunctivitis, and presented her prescription for eye drops. (ECF No. 105.) Only after the Court rejected that explanation did Lawrence contend that the production was due to mental illness. However, after providing that explanation, Lawrence submitted further documents in which she amended her deposition testimony and claimed that the photos were taken by her grandson as part of a school project. (ECF No. 132-1, at 76.)  The Court noted that these shifting explanations were as troubling as the photographs themselves.

Have questions?  Please contact me at kcole@farrellfritz.com.

“Self-collection” refers to the situation in which the custodians of information potentially relevant to a legal proceeding undertake to identify and collect that information on their own and provide the collected content to counsel.

The typical self-collection situation involves some limited instruction or oversight from counsel (in-house or outside).  For example, outside counsel issues a litigation hold notice identifying various topics and potentially responsive data.   A recipient of that notice undertakes to review his/her paper files, self-designates what he/she deems relevant, and provides that “relevant” content to in-house counsel.  Similarly, the self-collecting custodian may run key words in his/her Outlook mailbox and drag and drop “hits” to a designated folder in Outlook.

Such self-collection efforts, however, are often not an advisable course in any litigation, as the risks and consequences of employing self-collection can be significant.

Time Commitment

Consider for example, the salesperson with a computer who has received a legal hold notice and who is deemed to be in possession of potentially responsive information.   Assuming the individual acknowledges receipts of the hold notice (obtaining an acknowledgment of receipt and an intent to comply can often be a task in and of itself), does the individual have the time needed and interest to commit to a thorough and comprehensive collection?  If not, what are the chances the collection is done well, if at all?

Understanding the Scope of What is Required

Does the individual really understand the legal and factual scope of the proceeding at issue?  Even the most thoughtfully drafted hold notice does not necessarily convey to a non-lawyer unfamiliar with the matter the precise scope of relevant materials.  If the custodian doesn’t understand completely the factual and legal scope of the proceeding at hand, relevant materials may be overlooked.  And, assuming there is more than one custodian undertaking a self-collection exercise, how does counsel verify each self-collector’s respective understanding is consistent with those of other self-collectors?  In other words, custodian A may understand that widgets are clearly relevant, while custodian B understands only certain categories of widgets are relevant.

Technical Know How; Potential Conflict of Interest

Putting aside the timing and factual issues that can undermine a self-collection, do the custodians have the technical know-how to complete a defensible and sound collection?   This concern is, in my opinion, more troubling than the first two issues.  Indeed, the technical rube could inadvertently alter or delete relevant content and metadata, which may ultimately affect the data’s evidentiary value.  Or worse, the ill-intentioned self-collector whose interest may be contrary to the client’s interests, could intentionally omit or destroy content (which, could, potentially lead to spoliation motions and sanctions).

Given the potential risks presented by self-collection, lawyers should think long and hard before allowing it.  In the words of the Honorable Shira Scheindlin, “[s]earching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context…” and “most custodians cannot be ‘trusted’” to effectuate a legally sufficient collection.  National Day Laborer Org. Network v US Immigration and Customs Enf. Agency, (10 Civ. 3488 [SAS] [SDNY 2012]).

(See related post, Litigation Hold Notices Should Not Cloak the Recipient With Discretion Over What Documents to Preserve).

Have questions regarding data collection in legal proceedings?  Please contact me at kcole@farrellfritz.com.

On October 1, 2018, a new Rule (specifically, a new subdivision to existing Rule 11-e) of the Commercial Division Rules, will go into effect. 

Rule 11-e governs Responses and Objections to Document Requests.  The new subdivision, promulgated by administrative Order of Chief Administrative Judge Lawrence K. Marks, governs the use of technology-assisted review (“TAR”) in the discovery process. 

The new subdivision (f) states:

The parties are encouraged to use the most efficient means to review documents, including electronically stored information (“ESI”), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case.  Such means may include technology-assisted review, including predictive coding, in appropriate cases…

In addition to implicitly recognizing the cost attendant to e-discovery, the rule promotes cooperation by encouraging parties in commercial cases “to confer, at the outset of discovery and as needed throughout the discovery period, about [TAR] mechanisms they intend to use in document review and production.”  And so, the new Commercial Division Rule appears to bring New York State Commercial Division expectations closer in line with those set forth in the Federal Rules, specifically Rule 26(f), which encourages litigants (with an eye toward proportionality) to discuss preservation and production of ESI.

Questions about technology assisted review?  Please contact kcole@farrellfritz.com.

In a recent decision out of Oklahoma (Curtis v. Progressive N. Ins. Co., No. CIV-17-1076-C [W.D. Okla. June 13, 2018]), District Judge Robin J. Cauthron ruled that non-party ESI subpoenaed pursuant to Rule 45 was not subject to the 100 mile-limitation found in the Rule.  Specifically, the Court held there is “no violation of the 100-mile limitation,” as the non-party “subpoena at issue does not require the travel or attendance of any witnesses and Plaintiff is requesting the production of electronic documents.”

Factual Background

After plaintiff was involved in two automobile collisions, Curtis’ insurance company (“Progressive”) engaged Mitchell International, Inc. (“MII”), to create valuations of total loss for its use.  Eventually, Curtis filed the instant lawsuit against Progressive, claiming breach of contract, bad faith, unjust enrichment, and fraud in connection with the valuation of Curtis’ vehicles.  During discovery, Curtis served non-party MII with a subpoena duces tecum requesting the production of documents relating to “the correspondence, purchase, and analysis of the [computer valuation system]” MII used to create valuations of total loss for Progressive (“Subpoena”).  Curtis’ attorneys served the Subpoena upon MII using MII’s Oklahoma registered agent.  MII served written objections to the Subpoena, and meet and confer sessions failed to resolve the impasse reached between MII and Curtis.  And so, Curtis filed a Motion to Compel Compliance with Subpoena (the “Motion”).

MII argued the Court lacked jurisdiction to hear the Motion because MII’s headquarters and principal place of business are located in San Diego, and the Subpoena required compliance more than 100 miles away in Shawnee, Oklahoma.

In response, Curtis argued that her subpoena was valid and enforceable because “a subpoena that commands a person to travel beyond the 100-mile boundary must be quashed however, a Court retains discretion to command compliance with a subpoena for documents which requires production beyond the 100-mile limitation.”

In granting the Motion, Judge Cauthron noted that “Federal district courts enjoy broad discretion over discovery measures” and further stated:

“Here, Plaintiff states—and Mitchell does not dispute—that the information requested can be produced electronically. Mitchell has an Oklahoma registered agent and Progressive Northern Insurance Company continues to use the valuation system licensed and provided by Mitchell in Oklahoma to conduct business. As a result, Mitchell regularly transacts business in Oklahoma. The subpoena at issue does not require the travel or attendance of any witnesses and Plaintiff is requesting the production of electronic documents. This Court finds that there is no violation of the 100-mile limitation for electronic documents…”

This case is a good reminder that the Rule 45 geographic restrictions relates to how far a subpoena-recipient can be compelled to travel in order to comply with a subpoena (see FRCP 45[c]) and that while the geographic limitation applies equally to parties, and party officers, who cannot be commanded to appear for trial outside of the geographic restrictions set forth in the Rule (FRCP 45[c], [d][3][A][ii]), it has no applicability to the production of ESI.

The American Bar Association Ethics 20/20 Commission and Rule 1.1 provide that a lawyer’s duty of competence “[t]o maintain the requisite knowledge and skill, [requires] a lawyer [to] keep abreast of changes in law and its practice, including the benefits and risks associated with relevant technology.”  The New York County Lawyers’ Association Professional Ethics Committee Formal Opinion 749 (Feb. 21, 2017) echoes Rule 1.1 and discusses a lawyer’s “ethical duty of technological competence.”  Therefore, in today’s world replete with tweets, posts and handles, it is important that attorneys have some degree of social media savvy.

But what exactly does a lawyer need to know or do to be savvy when it comes to the internet of things and modern day technology?  For example, who knew there is a trend nationwide that lawyers have “a duty to Google.”  (See, e.g., Johnson v. McCullough 306 SW3d 551 [Mo. 2010] [the Court held that counsel had an affirmative duty to research jurors online]).  And, while New York has not gone so far as to require counsel to research jurors, New York does have a number of ethical opinions in place that govern how/when a lawyer may conduct such research should they choose to research a juror online.

The two opinions worth being aware of are the NY County Lawyer Association Opinion 743 (2011) (“NYCLA”) and the New York City Bar Association Commission on Professional Ethics Formal Opinion 2012-2 (2012) (“NYCBA”), which both provide that a lawyer may view the social media profile of a prospective juror provided that there is no communication with the juror.  The NYCLA Opinion further provides that a lawyer cannot seek to friend jurors, subscribe to their Twitter accounts or otherwise contact the juror.  Rather, a lawyer may only visit the prospective juror’s publicly available social media content.   In addition to lawyers’ conduct vis-à-vis prospective jurors, this same rule applies to sitting jurors.

The area rife for concern is what exactly is a “communication with a juror” under these Ethical Opinions?  And what happens if a lawyer intentionally or inadvertently communicates with a juror or prospective juror?

Use of social media by the tech-rube attorney could be rife with issues, as often times social media networks will generate an automatic notice (i.e., Katy Cole viewed your LinkedIn account).  Such notices are, under the ethical opinions, a violation of the no-communication rule.  It is therefore critically important that before you, a colleague or agent conduct any social media research about jurors, that you understand how the particular network operates.*

The ABA (Formal Rule 466 [April 2014]) reaches a different conclusion: that system generated notices are not communications. “The fact that a juror, or a potential juror may become aware that a lawyer is reviewing his internet presence when a network setting notifies juror or such, does not constitute a communication from the lawyer in violation of Rule 3.5(b).”   Below is a summary chart that may be a helpful tool when trying to determine whether you may view the social media profile of a prospective or sitting juror, the limitations of what you may/may not do and your attendant obligations, should you learn of a juror’s misconduct as a result of your viewing his/her social media content.

Pre-Trial Search:

NY County Lawyer Association

  • Lawyer may view social media profile of a prospective juror so long as there is no communication with the juror (whether initiated by the lawyer, her agent or automatically generated by the social media network) NYCLA, Formal Op. 743 (2011)
  • Lawyer cannot seek to “friend” jurors, subscribe to their Twitter accounts, send tweets to jurors or otherwise contact them. Id.
  • Lawyer may visit whatever is publicly available. Id.

NY City Bar Association

  • Lawyer may view the social media profile of a prospective juror so long as there is no communication with the juror (whether initiated by the lawyer, her agent or automatically generated by the social media network). NYCBA, Formal Op. 2012-2 (2012)

Mid-Trial Search:

NY County Lawyer Association

  • Lawyer may view the social media profile of a sitting juror so long as there is no communication with the juror (whether initiated by the lawyer, her agent or automatically generated by the social media networks). NYCLA, Formal Op. 743
  • Passive monitoring of jurors, such as viewing publicly available blog or Facebook page, may be permissible. Id.
  • Cannot make the juror aware of an attorney’s efforts to see the juror’s profiles on websites because might tend to influence the juror’s conduct in trial. Id.

NY City Bar Association

  • Lawyer may view the social media profile of a sitting juror so long as there is no communication with the juror (whether initiated by the lawyer, her agent or automatically generated by the social media network). NYCBA, Formal Op. 2012-2

Contact/Communication:

NY County Lawyer Association

  • Even inadvertent contact with a prospective juror or sitting juror caused by an automatic notice generated by a social media network is technically a violation. NYCLA, Formal Op. 743
  • Viewing the public portion of a social media profile is ethical so long as there’s no message to the account owner of such viewing. Id.

NY City Bar Association

  • Even inadvertent contact with a prospective juror or sitting juror caused by an automatic notice generated by a social media network is technically a violation.  NYCBA, Formal Op. 2012-2
  • Viewing the public portion of a social media profile is ethical so long as there’s no message to the account owner of such viewing.** Such conduct is permissible even if juror might be unaware that information is publicly available, unless it is clear that juror intended the information to be private. Id.
  • A “friend” request or similar invitation or any other form that allows the juror to learn of the attorney’s viewing or attempted viewing is prohibited communication if the attorney “was aware that her actions would cause a juror to receive such a message or notification.” If attempts to research are inadvertent or unintended, then MAY be prohibited (makes note that mens rea is not a component). Id.

Reporting Obligations:

NY County Lawyer Association

  • In the event that a lawyer learns of a juror’s misconduct due to social media research, he/she must promptly bring it to the court’s attention. Id.
  • Cannot use knowledge of juror misconduct to their advantage. Id.

NY City Bar Association

  • In the event that a lawyer learns of a juror’s misconduct due to social media research, he/she must promptly bring it to the court’s attention. NYCBA, Formal Op. 2012-2
  • Attorney must use their best judgment in determining whether a juror has acted improperly. Id.
  • Cannot use knowledge of juror misconduct to their advantage. Id.

 

* Recall the “Hustle” mortgage fraud trial in the Southern District against Bank of America Corp. A juror complained that a first-year associate on the defense team had “cyberstalked him” on LinkedIn.   In that case, U.S. District Judge Jed S. Rakoff admonished defense attorneys after a juror sent him a note complaining “the defense was checking on me on social media.”  Although “It was a good faith misunderstanding,” according to the defense counsel, it was an embarrassing and potentially costly mistake.   It is therefore important to know which systems generate automatic notices of one’s viewing activity.

** If a lawyer logs into LinkedIn and clicks on a link to a Linkedin profile of a juror, an automatic message may be sent by LinkedIn to the juror whose profile was viewed advising of the identity of the LinkedIn subscriber who viewed the juror’s profile. In order for that reviewer’s profile not to be identified through LinkedIn, that person must change his or her settings so that he or she is anonymous or, alternatively, be fully logged out of his or her LinkedIn account.

Have questions on using social media for trial research?  Please contact me at kcole@farrellfritz.com.

In my December 2016 blog post, I wrote about how developing effective key words is very much an iterative and thought intensive process.  This message was recently reaffirmed by a decision out of the Southern District of Ohio, wherein the Judge reminded us that the process of identifying search terms it not merely one of guesswork.  Rather, it requires deliberative thought, testing and refining such that the searches yield target-rich and proportionate results.

In the complex commercial matter, AMERICAN MUNICIPAL POWER, INC., Plaintiff, vs. VOITH HYDRO, INC., Defendant, the parties were in litigation over the construction of four hydroelectric power plants (“Projects”) that spanned a decade.

When it came to discovery, the parties could not have been more oppositional in their respective stances.  Voith Hydro, Inc. (“Voith”) requested plaintiff conduct a search for ESI using only the four Project names (Cannelton, Smithland, Willow and Meldahl) as standalone search terms without qualifiers.

American Municipal Power, Inc., (“AMP”)  on the other hand, requested that Voith search its ESI collection without reference to any of the four project names; searching instead for various employee and contractor names connected in a boolean way with a list of common construction terms and the names of hydroelectric parts restricted only by date range.

However, both proposals were too expansive in their scope and, as a result, too burdensome.  For example, when proposing its search terms, defense counsel did not appreciate that not every shred of ESI that hit upon one of the four fairly common project names (i.e., Willow) would be relevant or, at the very least, worth examining for relevance.  As the Court noted, “As owner, AMP had retained millions of documents for more than a decade that contain the name of the four projects which refer to all kinds of matters unrelated to the case.”  The Project names –detached from any other qualifier or restriction – returned documents related to real property acquisitions, licensing, employee benefits, facility tours, parking lot signage, etc.  All content that “hit” on a search term, but none of which was relevant to the construction of the four hydroelectric power plants.  Thus, accepting Voith’s request would result in overly broad results not sufficiently tailored to the needs of the case.  And so, Judge Deavers ruled against the defense on the four project names keywords request, and granted a protective order for the plaintiff because, in the Judge’s words:

“The burden and expense of applying the search terms of each Project’s name without additional qualifiers outweighs the benefits of this discovery for Voith and is disproportionate to the needs of even this extremely complicated case.”

AMP’s more “expansive” search terms, however, were equally problematic.  Indeed, if the searches combined employee and contractor names together with a list of common construction terms and the names of hydroelectric parts, the results included innumerable confidential communications about other projects Voith performed for other customers.  Therefore, like Voith’s request, AMP’s search request similarly returned a large corpus of documents not relevant to the litigation.  AMP’s proposed searches also raised confidentiality concerns (i.e., commercial information about other customers).*

Keyword searching should be an iterative process that is tested and refined, and tested and refined again, before any commitments to search are made.

* AMP proposed to exclude the names of other customers’ project names with “AND NOT” exclusionary phrases.  This was deemed by the Court unworkable because Voith could not possibly reasonably identify all the projects from around the world with which its employees were involved during the decade they were engaged in work for AMP on the Projects.

Have questions on keyword searching?  Please contact me at kcole@farrellfritz.com.