Civilized Proceedings, Discovered on Demand, Litigation of Business | Business of Litigation

Monday Morning Subpoena Blues

Not the Best Way to Start Your Week

(Monday Morning 8:07 a.m.)

our receptionist walks in and hands you an envelope. As you open it up, you recognize the format and see the word SUBPOENA¬†printed on the first page. The receptionist says someone just handed it to her and left . . .¬†didn’t say a word.061314_1453_MondayMorni1.png You¬†know you have no lawsuits going on. The last one settled last month. You paid the lawyer’s invoice. That pain is still vivid. It’ll be a hundred bucks just to call him about this! And then he’ll answer every question with a question. Twist it around and into a question.

Duces Tecum

(Monday Morning 8:12 a.m.)

Scanning the crisp paper quickly, your glasses slip down your nose. You focus on the names. Bold. Black. Names. Don’t know who they are. Looking it over closer, you see something is scheduled? A deposition? Not again! Oh, the custodian‘s deposition? Must mean the janitor. Isn’t “maintenance man” more correct? Luke? Yeah, Luke.Wonder what he did? Custodian! He cleans and maintains ‚Äď He doesn’t custody! The stark letters form words that look like English, just not the everyday kind of English. Subpoena Duces Tecum.¬†Must be some special subpoena.

 Duces Tecum? D-u-c-e-s Tecum. Duces T-e-c-u-m. D-u-c-e-s- T-e-c-u-m?

Duke’s Dilemma

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(Monday Morning 8:15 a.m.)

Oh, wait. The maintenance guy’s name is Duke. Not Luke! Duke Tayler . . . or something or other? Dukes Tatum? Deuces Takem? Ducks Teacup? You toss the envelope aside‚ÄĒnot you this time.When Duke gets in you must tell him. Poor guy. After staring at it for far too long, you give in and pick up the envelope again. You pull the papers out and iron them flat. Date and time. Only a week away. Hope Duke can find a lawyer by then.

Records Recalled

(Monday Morning 8:17 a.m.)

Flipping the page, there’s a description of what’s wanted. Sounds like a project you did a year ago. Sounds the same. Maybe longer than a year? Why would the janitor have a project file like this? Moonlighting? Stealing company secrets? Yeah right.061114_0714_MondayMorni2.png It sure is specific. Horowitz & Associates. Horowitz? Horowitz? The Horowitz file! “To Custodian of Records: You are commanded to appear with all documents in your possession and under your control,¬†relating¬†in any way to the transaction between . . . .” Custodian of Records? Of Records! It wasn’t the janitor. It’s like custody. The Custodian of The Records! It’s not Duke. It’s you. Again. Damn it. Alright. You get it now. But where would that file be? And a week? Only a week? And if not? Then what? Duces Tecum!¬†

Confidences Collide

(Monday Morning 8:20 a.m.)

The way the subpoena is worded it seems like they want documents that are not related to the project too. Some documents listed are full of confidential information. Your confidential information. No one sees that except you and some ofTop_Secret_glossy the senior managers. And only when they need to. Need-to-know basis only.¬†Some of it i s the client’s financial records. You can’t just hand that over . . . Can you? Do you have to? Maybe you should call Horowitz first? Is that legal? Duces Tecum?

Publicly Proprietary

(Monday Morning 8:22 a.m.)

Oh boy. This covers more than finances. It covers Horowitz’ processes too. Didn’t you sign something saying you would not disclose that information? And if you did there’d be hell to pay? Horowitz’ competitors would love to see this stuff. Proprietary systems and designs. The procedures and process. The underlying data. Trade secrets. Hell, your competitor’s would like to see your stuff in that file too. It’s not like Horowitz’ records, but . . . If it’s a lawsuit it’s public, right? Anyone can see it? That can’t be allowed. Can it? They can’t just do this! Or can they? Damn lawyers.

Disrupted

(Monday Morning 8:37 a.m.)image

Last time you spoke to Horowitz was the day the deal closed. It was fourteen-sixteen-some months ago. You don’t know if you can, or should, or want to call him. Just look through the files first.¬†Figure out what’s really in there. It might not be nothing. Maybe you’re the wrong custodian and don’t have the right records? Maybe it’s a mistake? Know soon enough. Duke’s on his way out to the off-site storage. But it will still take time to find the file. You could just call the lawyer who signed the Subpoena? Won’t have to pay for that. Can you trust him? What if he tricks you? Not good. Dunce To-sum? It’s already disruptive and may jeopardize your relationship with a good client. This is the last thing you want to deal with right now. What do they think gives them a right to do this?¬†You did nothing wrong. Horowitz? Maybe. But the deal is closed. Done. Over with. Maybe you should have returned the original file to him? Maybe that should be the new policy. And who’s paying for this wasted time? Duke doesn’t work for free! And he bills his mileage at the IRS rate. Twenty five miles to the gallon at fifty six cents per mile? Gas ain’t $14.00 a gallon! And he takes the long way back every time, too.

Instruct and Define

(Monday Morning 8:41 a.m.)

cautinAs you’re looking for your good pen on your desk, you notice a page sticking out from the envelope the subpoena came in. Must’ve missed it. Sticking out from the envelope is the stapled corner of another document. Pulling it out while unfolding it, you read the title, “Schedule A‚ÄĒInstructions and Definitions.” Hmm? They already asked for the whole damn file, what more could they want? The boxed up file is all you got. Wondering what more there might be, you read Schedule A’s Instructions and Definitions. The everyday words, “Instructions and Definitions” now sound foreboding.

Every Stupid Item

(Monday Morning 8:44 a.m.)

With your stomach already burning it slowly starts to churn. You look at what is on the last, and almost overlooked, pages. You read through the Instructions and Definitions. Twice. To be certain. Okay, they want every piece of paper related to the file. I get it! But gawd. For real?  There is no way! For the third time, you slowly read the paragraph again (hoping it may have changed):

 . . . all electronically stored information (ESI). You have an obligation to keep all potentially relevant internal and external emails sent or received. Email must be preserved in electronic format, regardless of whether hard copies of the information exist.

      All devices with either magnetic core or solid state random access memories should be immediately placed in a litigation hold and preserved until further notice. Remove all backup drives, tapes or other media out of regular rotation. Due to its format, electronic information is easily deleted, modified or corrupted (i.e., by data compression, disk de-fragmentation, or optimization routines). ESI must be produced to retain the associated metadata. When produced, it should be in native format and include single page TIFF files, Bates Numbered with OPT and DAT load files retaining all associated file. 

serverIT begins

(Monday Morning 8:53 a.m.) Your computers? Okay. You get it. You’ll call the IT guy too! What the hell is TIFF? And OPT DAT? Sounds like some pop star or a military acronym used only during wartime. What is the IT guy’s number filed under? Computer . . . Something ‚Ķ Tech ‚Ķ Something ‚ĶTeam? He’ll know what to do. He’s so damn expensive he better know what to do. Not as expensive as the lawyer. But sometimes the IT guy makes things worse. Way worse. He does make them better, but first it’s worse. Actually, the lawyer does that too. What is it with . . . oh no. You haven’t paid the IT guy’s invoice since . . . shoot! It’s at least ninety days past due. Is he going to even take your call?

So many questions?

got-a-question-1398184097TUB

(Monday Morning 8:56 a.m.)

Where do you even start? What do you have to do and by when? What happens if you don’t do anything or don’t do it on time? Do you have any rights? Can you get more time? Do you really have to give some random attorney access to your company’s trade secrets? To your client’s secrets too? It’s proprietary and valuable. He’ll fire you. Can your client sue you if you comply and hand over his trade secrets? What if you signed an NDA? Is this all public information now? Can all of our competitors can just go take a look and see it? And access to your servers? Are the computers going to be down? How are you supposed to get anything done and meet deadlines? Should you even have your employees come into work? Do you just send everyone home for the next week? Can you even stay open at all? And who is paying for all this down time? And the IT guy? And the lawyer? And the copying? And Duke’s mileage? Do you have any options? How much of this burden do you have to bear ? Do you have any rights at all?¬†Phone-keypad183

What to do? 

(Monday Morning 9:01 a.m.)

The first thing you need to do is take a deep breath. Then call your attorney. And not too deep a breath. You need to call your attorney now. You have rights. You have options. You won’t be ruined by this. But the Rules are particular. You have to know what they are and how they work. The Rules authorizing subpoenas also protect you. But you need to know how to use them. You have no time to dawdle. Call. Your. Attorney. Now.

To be continued . . .

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Attorneys & Lawyers & Counselors, Discovered on Demand

Discovering to Discover thru Discovery how it was Discovered

When I first heard of the discovery dispute and resolution ordered in RuizBueno v. Scott, No. 12-cv-0809 (S.D. Ohio Nov. 15, 2013) I thought: This is the worst punishment possible. They have to conduct discovery into discovery! It must be one of Dante’s circles in the pits of litigation hell. Please, just sanction me instead!

SCOTUS

How could you punish anyone more than forcing them to pose and respond to requests under Fed.R.Civ.P. 26(b). Then being subjected to inquires under Fed.R.Civ.P. 26(b) requiring explanations into compliance with Fed.R.Civ.P.26(b)? The viciousness of the gratuitous circuitousness. Is there no justice anymore?

Deciding Disputes

Or so I thought. Despite my horror, I couldn’t believe it was true. I questioned the legitimacy of ordering discovery into discovery. Under what authority? How do you get there? I gave into my curiosity and read the Opinion and Order in RuizBueno v. Scott. Not only did it all make sense, it was reasonable and rational. To top it off the support came right out of the Advisory Committee Notes to Fed.R.Civ.P. 26(b) itself–in 1946!

To keep a long story extended, one party’s attorney was recalcitrant and intractable about answering two interrogatories inquiring into what and how counsel searched for emails requested and subject to production. The emails were relevant but remarkably the emails were bot produced. Due to the apparent conduct and a lack of cooperation, the issue of how counsel handled the discovery process itself became relevant to the proceeding. After all, these days it seems the attenuated line between intentionally hiding evidence and being non-cooperative during discovery is more delicate than ever.

Ideally Apparent

The Court proffered a perfect solution based on compliance with the spirit (and basis) of the Rules: “In an ideal world (a situation which apparently does not exist here), these types of disputes would never be presented to the Court because counsel would have recognized, early in the case, the potential for disagreements ……. and would have actively sought to avoid such disagreements through collaboration.”

The Court went through a fully cited primer that, understandably, sounds like a lecture to counsel on how to behave. After sounding constrained but frustrated by counsel’s failure to respond to what efforts were undertaken to locate certain emails, the Court described the conduct and justified how “discovery into discovery” became relevant and appropriate. By this point in the sermon, I had been fully converted and was even sitting in the balcony with the choir.

Restraint Queried

To emphasis the point the Court posed apparently rhetorical, and reasonable, questions about the searching for the emails : “How did the individual defendants do that here? Through keyword searches? Through searching by sender or recipient? Through searching emails sent or received in a specified time frame? Or going by memory? Did they all do it the same way, or were they left to pick among various methods? The record provides no answer to these questions.” The fact the Judge ends up only ordering the interrogatories be answered shows greater restraint, patience and tolerance than many other courts I have seen exhibit.

The Court emphasized the preferable way to have handled the discovery process in explaining the seemingly unusual ruling:

What should have occurred¬† here is . . . counsel should have engaged in a collaborative effort to solve the problem. ¬†That effort would require defendants’ counsel to state explicitly how the search was constructed or organized. Plaintiffs’ counsel would then have been given the chance to provide suggestions about making the search more thorough.¬† That does not mean that all of plaintiffs’ suggestions would have to be followed, but it would change the nature of dispute from one about whether plaintiffs are entitled to find out how defendants went about retrieving information to one about whether those efforts were reasonable.¬† That issue cannot be discussed intelligently either between counsel or by the Court in the absence of shared information about the nature of the search.

Confronting Communication

Counsel had argued collaborating with opposing counsel on discovery would violate the duty of zealously advocating for the client and could be volitional of client owed privileges. The Court addressed this contention with a cite to Mancia v. Mayflower, 253 F.R.D. 354 (D. Md. 2008):

It cannot seriously be disputed that compliance with the ‚Äúspirit and purposes‚ÄĚ of these discovery rules requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation.¬† Counsel cannot ‚Äúbehave responsively‚ÄĚ during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation.

Changing Collaboration

With Minnesota’s state court amended discovery rules in effect, I anticipate seeing the Courts begin to rule the same in future discovery disputes. It will be interesting to see if the emphasized collaboration will come to pass.

The discovery process is conducted with such adversarial zeal since I began practicing, it is normal to expect relevant information will be withheld (at least I expect it). It was fairly common for me to request and receive attorney’s fee awards as a sanction against opponents for dilatory and incomplete discovery answers/responses.

Compelled Recollection

This is no longer the case. Not that there is more cooperation. It is just the Courts got tired of the constant discovery squabbles. Now a hearing on a motion to compel is rare with informal letter briefs required and tele-cons with the Court taking place instead of formal motion hearings. But I still fondly recall when it wasn’t so . . . .

About 10 years, I brought a motion to compel answers and responses to discovery that were well overdue and did not appear forthcoming despite my constant cajoling. My opponent eventually produced the discovery but not until I had noticed the motion and had filed/served all required supporting papers.

It was at about a week before the hearing and he called asking if I would cancel the motion since it was moot now that I got what I wanted. I said I was not inclined to do so unless he paid $500 for the fees my client incurred for me preparing/filing the motion (he had been thoroughly forewarned well in advance of being served). He scoffed at me. So I said I would ask for more than $500.00 from the Court and see him at the hearing.

The hearing went forward and I kept my word to counsel. The same argument was made. The Court found that since my client incurred the fees to get the discovery produced, the fees would be awarded against counsel. The Judge ordered fees of $1,000.00 based on the motion submitted.

I sure haven‚Äôt had that happen in a while. Maybe that’s good . . .

MKT

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Attorneys & Lawyers & Counselors

The Discovery Plan–Sage e-discovery Advice

Following is a link to a full post by New York attorney, Mark Lyon, who blogs at http://www.marklyon.org. Although it doesn’t look like he‚Äôs licensed in Minnesota (but is in a few other places) he must be a pretty smart, tech-oriented kind of guy. You’ll see what I mean when you read his post about discovery conferences under new Rule 26.06 that sprang to life due to this year’s amendments to the Minnesota Rules of Civil Procedure.

I have two of these Rule 26.06 (c) conferences this week so  I am appreciating the pertinent advice. These mandatory conferences seem to come up so quick that, thinking about it, I have not really been as ready as I would like. All of my discovery conferences to date have been perfunctory and mundane (except for my first, which was with a pro se litigant and a story for another day). So, to start the week, here is Mark’s post:

Minnesota Updates Discovery Rules | Mark Lyon

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