Electronic Discovery & Digital Evidence Case Update
Florida eDiscovery Decisions for August 2017: FRE 502, Generalized Objections, Forensic Images, attorneys fees under FDUTPA, and discovery of social media pictures. Hat tip to Bart for Bates decision.
Absolute Activist Value Master Fund Ltd. v. Devine, No. 215CV328FTM29MRM, 2017 WL 1355012 (M.D. Fla. Apr. 13, 2017
In this decision from a diversity action in the Middle District of Florida, U.S. Magistrate Judge McCoy was faced with interpreting a protective order that incorporated Fed.R.Evid. 502 and addressing “express intent” to waive, and inadvertence. The disputed language of the protective order arises from two sentences contained in that stipulated order.
The first sentence read as follows: A “disclosure without the express consent to waive such privilege shall not be deemed to be a waiver.” The Court agreed with the Plaintiff’s contention that, in the Court’s words, “when disclosing Discovery Material, only anexpress intent to waive a privilege will serve to waive any applicable privilege at the time of disclosure.”
The second sentence reads in part as follows: “…while there is no per se waiver of privilege in the absence of an intent to waive, the question of whether an ‘inadvertent disclosure’ constituted waiver.
To be sure, the stipulated order was, imo, drafted very poorly, and this did not go unnoticed by the Court. While the order referred to Rule 502, and even unconditional claw back pursuant to 502(d), the stipulated order’s language then traverses through requirements that parallel Rule 502(b)’s inadvertence elements where inadvertence was asserted to justify a claw back. The court notes, somewhat wryly, that “[A]ssuming that the notice requirements are met, the second sentence then states that Fed. R. Evid. 502 and Fed. R. Civ. P. 26(b)(5)(B) must apply.” The parties essentially tied themselves to a Rule 502(b) analysis anytime notice (which was always required) was given.
The Court then applied the five Florida common law factors for determining whether inadvertence constituted waiver “(1) the reasonableness of the precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness.”
Ultimately the Court found that the disclosure was inadvertent and no waiver ensued. Seriously, folks, you should only, repeat only be using Fed.R.Evid. 502(d)’s unconditional clawback language – unless you’re production processes are perfect.
Crom, LLC v. Preload, LLC, 2017 WL 2408126 (ND Fla. June 2, 2017)
In case you’re still using generalized objections, consider the language in this decision from U.S. Magistrate Gary Jones from the Northern District of Florida:
“To the extent Crom's general claims of attorney-client privilege and work product were raised in response to Defendants' discovery requests, those objections are not appropriate and are stricken. General objections such as these do not inform opposing counsel or the Court as to what documents are being withheld, who created the documents, or to whom the documents were disseminated. See Fed. R. Civ. P. 26(b)(5)…”
In this case, Plaintiff Crom objected to “a number” of requests based on attorney client privilege and work product doctrine, but had not provided a privilege log. Crom eventually provided a privilege log with only two entries after defendant filed his motion to compel, but the privilege log did not include communications between Crom and his current or previous counsel.
While the Court did not find a waiver of either privilege or work product, it granted defendant’s motion to extent it sought an order compelling the production of a privilege log that complied with the requirements of Fed.R.Civ.P. 26(b)(5)(B).
But wait, we’re not quite done. Defendant Bacon (yep)m sought production from Plaintiff Crom of computer forensic images of all ESI storage devices used by Bacon during her employment with Plaintiff. While the Court denied the motion to produce the forensic images, it did order the production of the forensic analysis reports, redacted to exclude irrelevant or confidential information other than to provide evidence that Bacom “impermissibluy downloaded certain information prior to leaving Crom and thereafter” used that information at her new place of employment.
PROCAPS S.A., Plaintiff, v. PATHEON INC., Defendant, 2017 WL 3536917, at *16 (S.D. Fla. Aug. 17, 2017)
“Nothing in this case was easy. Nothing.” Great way to start a decision. In this decision by U.S. District Judge Goodman from the Southern District of Florida (where else?), the Plaintiff’s FDUTPA claim was predicated on a (badly) losing antitrust claim. The antitrust claim was dismissed on summary judgment, appealed, and affirmed, after which Plaintiff again asserted anti-trust violations on a different theory, which was also dismissed on summary judgment. The prevailing party (Defendant) sought significant attorneys fees from the Plaintiff. Sounds relatively straightforward? Well, not so fast. The Court noted that in affirming the dismissal, the Eleventh Circuit likened the anti-trust claims to others that were “…intrinsically hopeless because…they merely dress up in antitrust garb what is, at best, a business tort of contract violation.”
Counsel’s conduct in this matter was also, shall we say, not complimented by the Court. In fact, Defendant attempted to introduce (and the Court declined to consider) a now-vacated Circuit Court order sanctioning then-counsel for Plaintiff.
“For purposes of this Order, suffice it to say that the Court is, at a minimum, extremely disappointed in the way that Procaps and its counsel handled many aspects (both substantive and procedural) of this complex case.”
Here, Plaintiff’s FDUTPA claims was based on the same factual assertions as it doomed anti-trust claim. Plaintiff argued that the Court should exercise its discretionary powers under FDUTPA to deny attorneys fees to the prevailing defendant.
The Court wasn’t in a buying mood. As to the award of attorneys fees to a prevailing FDUTPA defendant, the District Court relied on Florida Supreme Court decisional authority in finding that:
“…in the absence of an admission by the prevailing party that some of the legal services were unrelated to the FDUTPA claim, Diamond Aircraft authorizes attorney's fees to a prevailing party for all fees incurred in the case unless the non-FDUTPA claims were clearly unrelated to or clearly beyond the scope of a FDUTPA proceeding. Patheon does not admit that the services were unrelated. In fact, to the contrary, Patheon urges that the antitrust claim and FDUTPA claim were, in effect, the same. Procaps also argues the claims were substantively similar.
The Court rejected Plaintiffs’ “tag along” theory (and unclear standalone decision), which arguably would have denied the prevailing defendant from entitlement to attorneys fees and costs where a FDUTPA claim is linked to a non-FDUTPA claim where fees are not authorized.
The Court ultimately found that Plaintiff failed to meet its burden to establish that the attorneys fees and costs incurred by the prevailing Defendant were “clearly not related to the FDUTPA claim, which was largely based on the same antitrust theory as the antitrust count.”
Judgment for Defendant for attorneys fees and costs for entire action (after 47% discount): 18.5 million.
Steadfast Insurance Company v. Progressive Casualty Insurance Company, 2017 WL 3065269 (MD Fla. July 19, 2017)
A reminder about third parties and negligent spoliation of evidence:
“Under Florida law, to prevail on a negligent spoliation of evidence claim, a party must establish the following:
(1) the existence of a potential civil action; (2) a legal or contractual duty to preserve evidence relevant to the potential civil action; (3) destruction of that evidence; (4) significant impairment in the ability to prove the lawsuit; (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit; and (6) damages.”
“In Florida, a “ ‘duty to preserve evidence can arise by contract, by statute, or by properly served discovery request.’”
Notice could be created duty to preserve if alleged spoliation received it.
“Florida case law does not provide for a third-party responsibility to preserve evidence absent notice… However, even in the absence of a common law duty, a third party may have a statutory, contractual or administrative duty to preserve evidence.”
Bates v. City of Tampa, 15 CA-006097 (Hillsboro Circ. Court, May 10, 2017)
In decision compelling production of social media information, the Court dismissed (at least generally) privacy concerns about personal information posted on social media. Citing Nucci v Target, 162 So. 3d 146 (Fla 4th DCA 2015) the court first reasons that such posts are “created with the acknowldgement that personal information will be shared with others” and that the privacy interest in pictures posted to social media is “very limited.”
Here, the Court found the request (and the subject of the motion to compel) was limited only to pictures and that the pictures were relevant because plaintiff had put her physical and mental condition at issue.