The Right to Privacy in Modern Discovery: a review of another great law review article – Part 3

September 13, 2022
Professor Allyson Stuart (image by Losey)

This is the conclusion of the blog, The Right to Privacy in Modern Discovery: a review of another great law review article. See here for Part 1 and Part 2. This blog series considers the interplay between privacy and civil discovery as discussed in the law review article by Professor Allyson Haynes Stuart, entitled A Right to Privacy for Modern Discovery, 29 GEO. MASON L. REV. (Issue 3, 2022).

Part Three wrap up the series with longer than usual concluding remarks. Professor Stuart’s important article and insights are tied to efforts of the electronic discovery community. I plea for further efforts and make some specific suggestions, including a proposed change to Rule 26(b)(1) to add privacy as a proportionality factor. Evidence Rule 502 may also need to be revised. Vendors should also focus on new technological solutions. The need to address the problem of discovery privacy is urgent. EDRM, The Sedona Conference, the Advisory Committee on Civil Rules, and other important legal groups need to focus on this now, not later.

Conclusion

Ralph Losey August 29, 2022

I look forward to hearing much more from Allyson Stuart in the years to come. We need to begin a new dialogue on how to treat confidential information in civil discovery. Judges and private practitioners like myself are facing these issues every day. Professor Stuart’s article is a good step towards finding a practical solution. A Right to Privacy for Modern Discovery, 29 GEO. MASON L. REV. (Issue 3, 2022). This is the first scholarly article I have seen focused solely on privacy in civil discovery, as opposed to the many legal articles on privacy in general, or ones just focused on attorney-client privilege, or international privacy. That is one reason her new article is so important.

I am impressed by Professor Stuart’s points and suggestions, but would like to hear more comments on her proposed framework. I hope her article and this blog series starts Sedona-style dialogues on the subject in many fora, not just The Sedona Conference. See eg. The 13th Annual Sedona Conference Institute Program on eDiscovery: Protecting Privacy, Confidentiality, and Privilege in Civil Litigation. This March 2019 Sedona Conference event in Charlotte was co-chaired by the well-known, retired Judge Andrew Peck and Andrea L. D’Ambra and had a great faculty. I would like to hear Sedona’s input concerning Professor Stuart’s article and proposals. Also see the 2018 publication, The Sedona Conference Data Privacy Primer. This Data Privacy Primer was a project of The Sedona Conference Working Group Eleven on Data Security and Privacy Liability and was first published for comments in January 2017. Much has changed since then, not only the shock and disruption of Covid and politics, and the ever accelerating advance of personal technologies and social media, but especially the recent, radicalizing shock of Dobbs.

Let’s hope that all serious students, practitioners, judges and scholars of the law, including Sedona, will revisit the discovery privacy issues and hear from the next generation of experts like Professor Stuart. This time I suggest groups narrow their focus to discovery as a sub-set of privacy. Let’s look at the trees, not just the forest. That is what working lawyers like me really need right now. Sedona and others may also want to have another group work on post-Dobbs personal privacy activity rights. That involves serious political issues way beyond my pay grade, and so I have no recommendations, aside from saying that The Sedona Conference would be a good place to try and reach legal sanity. So too would my current personal favorite, the EDRM. Let’s all cooperate and try to figure this out together.

Losey pondering yet another question “way above his pay grade”

Pleading for further rules revisions is, however, within my limited wheel-house. Even without the further advice of scholars and experts, I am ready to commit to Professor Stuart’s admittedly reluctant suggestion that Rule 26(b)(1), Frankenstein or not, be revised once again, to include Privacy as a factor in proportionality analysis. You could get fancy with the revisions, but I am presently inclined to go with a short and simple solution and just include the words “the privacy considerations” on the 26(b)(1) list:

Image by Losey

. . . and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, the privacy considerations, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

When the Advisory Committee on Civil Rules takes up this proposal, and I urge them to begin the consideration process at their next meeting, they should not only consider individual, corporate and government privacy rights, but also the costs and burdens to litigants to protect these rights. That should be part of any Committee comments, which are always included with a rules revision and carry great weight.

Redaction can be very expensive. In my experience as a practitioner over the last couple of years, it is much more expensive and burdensome than privilege logs. More expensive still, is the effort to cull out irrelevant ESI for privacy protection in productions.

Good work has been accomplished in cutting the costs of privilege logs, but now we should focus on the related, but different issue of privacy protocols for other types of confidential information in civil discovery. See eg. the work of the EDRM on privilege logs). Also see the excellent 2015, The Sedona Conference Commentary on the Protection of Privileged ESI. The Sedona publication discusses four general principles concerning privileged communications. The fourth principle is easily applicable to proportional privacy protection in civil discovery. It states “Parties and their counsel should make use of protocols, processes, tools, and technologies to reduce the costs and burdens associated with the identification, logging, and dispute resolution relating to the assertion of privilege.” The Sedona Conference Commentary on the Protection of Privileged ESI.

It is time to conclude and move beyond the privilege log projects and focus on related issues, other privacy protection concerns in discovery, including redaction protocols, court sealing protocols, filter team protocols, and confidentiality agreements and orders. We should look for ways to protect privacy rights, including the rule tweak here suggested. But in so doing we should be careful to control the costs. We do not want to create an accidental Frankenstein monster that eats up more time and money, not less. There are other many possibilities to both protect privacy and control costs. One might be expanding the scope of Evidence Rule 502 to include all types of confidential ESI within quick peek protection. Others solutions might be more technological in nature.

EDRM Graphic

Another possible answer with great promise is far greater use of Special Masters and discovery mediators. See: EDRM’s “Using Special Masters and Discovery Mediators to Resolve eDiscovery Disputes: A Bench Book for Judges and Attorneys 2022 Edition” (draft public comment version). Certainly there are initial upfront costs to use of a Special Master, but good ones can and will save far more expense to the parties than they cost. Far more. It will also speed things up. The costs of motion practice and excessive discovery remain an enormous cost and time waster, one that Masters and mediators with discovery and tech experience, knowledge are uniquely positioned to help control. This process can be abused too, as we are seeing now in the news.

EDRM graphic

As usual, the success of any endeavor like this, of more rules, best practices and technology solutions, will depend on education of bench and bar, the cooperation of litigation counsel in implementation, and the active, learned supervision of judges. It will also depend heavily on pre-litigation records management and related record keeping best practices. See eg. the work of the EDRM going back to 2013 and the EDRM graphic here summarizing the protocol recommended.

Confidential, secret documents should not just be left lying around. And flushing secret materials down toilets is not proper, legal disposition. Companies, individuals and the government, especially the Executive branch of the federal government, must do a far better job. The laws governing confidential documents and privacy must be taken seriously and enforced. See eg. FULL TEXT OF THE OFFICIAL COURT REDACTED SEARCH WARRANT AGAINST DONALD TRUMP. The popular Internet meme that “privacy is dead” is a hacker myth, promoted by greedy tech-corporations, over-zealous journalists, foreign spies, criminals and kleptocrats everywhere. No society can function without privacy. A total lack of privacy is unnatural and wrong. It is an inalienable human right. The great Justice Brandeis correctly characterized “the right to be let alone” as “the right most valued by civilized men.” Olmstead v. United States, 277 U.S. 438 (1928) (dissent).

Privacy in discovery is a real problem in both civil and criminal litigation. See eg. In re Warrant, No. 22-8332-BER, 2022 U.S. Dist. LEXIS 150388 (S.D. Fla. Aug. 22, 2022). It requires our immediate attention, discussion and early response. Continued delay in addressing the discovery issues, the costs, benefits and burdens, will only make the situation worse. I come back to the proactive, stitch in time saying that I have analyzed before in the context of litigation. Professor Stuart’s article has started the stitching in a scholarly, but accessible manner. We should be grateful to her for that and continue the important work.

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Posted by Ralph Losey

The Right to Privacy in Modern Discovery: a review of another great law review article – Part 2

September 8, 2022
Professor Allyson Stuart (image by Losey)

This is part two of the blog series, The Right to Privacy in Modern Discovery: a review of another great law review article. See here for Part 1. This blog series considers the interplay between privacy and civil discovery as discussed in the law review article by Professor Allyson Haynes Stuart, entitled A Right to Privacy for Modern Discovery, 29 GEO. MASON L. REV. (Issue 3, 2022). The blogs are supplemented by Allyson’s written comments and video interviews.

In Part Two we continue review of the article, plus share Professor Stuart’s supplementary comments and videos. They will address criminal law considerations and the impact of the Supreme Court’s bombshell case rendered in draft and then final form after her article. Dobbs v. Jackson Women’s Health Organization, 597 U.S. _ (2022). The Professor’s unexpected comments are somewhat hopeful, at least in so far as civil e-discovery is concerned.

Supreme Court on Privacy and Technology

Photo by Losey of the Supreme Court before the fences went up

Next up in our review of Professor Stuart’s law review is subsection B. Supreme Court Case Law on Privacy and Technology of Section II. Privacy in Modern Discovery. She starts off with a good summary of civil discovery law.

Under the discovery rules, there is no concept of “reasonable expectation of privacy.”267 A diary entry is perfectly discoverable if it is relevant.268 A statement shouted from a rooftop is not discoverable if irrelevant. Instead, the rules speak in terms of privilege.269 Federal courts recognize that privacy interests are implicated in the discovery rules and that courts should protect privacy interests as part of their issuance of protective orders,270 but do not treat discovery as constrained by the Fourth Amendment. However, concepts of privacy have inevitably overlapped. Many courts refer to “expectations of privacy” in the context of civil discovery.271

She then discusses the series of Supreme Court cases noting how technology today has changed privacy analysis in criminal cases and then concludes subsection B as follows:

There are implications of this theory too in the civil discovery context. In addition to discovery of cell phone information, where courts have already applied recent Supreme Court doctrine in protecting against broad examination,302 other types of discovery should be viewed through this lens, including social media, health tracker data, and other information from devices connected to the IoT.

A Modern Framework for Privacy Protection in Discovery

The next subsection is C., A Modern Framework for Privacy Protection in Discovery. Here Allyson Stuart lays out her proposal for reform of civil discovery. Here is the summary she provides in the opening paragraph.

First, privacy rights in discovery are protected by the Constitution when requests touch on personal, intimate matters, or implicate rights to association like donor or membership lists, and are protected by public policy when they implicate state or federal statutory confidentiality provisions. Second, when such privacy rights are implicated, courts should require a higher showing of relevance as opposed to discovery that is solely for purposes of impeachment or is otherwise “collateral.” Courts should apply higher limits still when private information is sought from or implicates the rights of third parties. And third, even where information sought does not fall within traditional notions of confidentiality or constitutional zones of intimacy, the totality of what is comprised within broad sets of data may implicate privacy pursuant to the mosaic theory. All three of these bases for restriction are proper subjects for arguments that discovery is not proportional under Rule 26(b), or should be protected under Rule 26(c).

I urge you to read the full article for her complete argument for this new framework for privacy protection in discovery. A Right to Privacy for Modern Discovery, 29 GEO. MASON L. REV. (Issue 3, 2022).

Professor Allyson Stuart’s Conclusion

After the framework discussion and argument in the article, comes the all important conclusion. It is excellent, so I reproduce it in full, again to entice you to read the whole article.

As in the Fourth Amendment context, discovery has been upended by changes in technology. Information that was not capable of creation is now saved automatically in vast databases. Formerly private communications are now shared in semi-public fora. People’s movements, bodily functions—indeed, their entire lives—are chronicled by devices on their wrists or their countertops. Courts can and should apply privacy protections when this data is sought in discovery.

Text messages and other communications may be private if they implicate personal relationships or otherwise intrude on the zone of intimacy. Fitbit data intrudes on privacy of medical and other personal information, and may include GPS data that gives a detailed record of a user’s activity every day. Social media account information too could offer a detailed portrait of a user’s life, and could implicate associational and other constitutional privacy rights. Finally, all of these discovery requests risk the privacy of third parties. These considerations are appropriate for a court in balancing the need for the discovery—including how relevant it is to the claim—against the intrusion into the privacy of the party and others. The law gives courts the discretion to say this comprehensive, intrusive discovery is not proportional.

Privacy in the Context of Criminal Discovery

I asked Allyson Stuart to comment on an issue slightly outside of her article, but related, namely privacy in criminal discovery. I wrote about this recently in a lengthy blog series, Examining a Leaked Criminal Warrant for Apple iCloud Data in a High Profile Case, Part One, Part Two and Part Three. She later read this series, but before that, commented generally on privacy in the context of criminal discovery. Again, I share these comments from a private email with her permission:

One thing that I find interesting is the idea that the Fourth Amendment should apply to civil discovery.  I cite at least one article making that argument in my article.  Otherwise there is certainly more robust protection under the Fourth Amendment than under interpretation of Rule 26.  In particular, Jones, Riley and Carpenter do a good job with changing technology in the 4th A. context.

Professor Stuart and I also discussed by video the Fourth Amendment’s indirect impact on civil discovery. Again, here is our chat shared with her permission.

Professor Stuart on the Fourth Amendment and Civil Discovery (Losey video)

My blog series Examining a Leaked Criminal Warrant for Apple iCloud Data in a High Profile Case concerned the leak of a criminal warrant that was filed under seal and was supposed to remain secret. The public posting of the secret warrant on Pacer appears to have been an accident, a major blooper to be sure. My article discusses the dangers posed to both civil and criminal suits by wide-spread public access to Pacer. Also see: The Sedona Conference Commentary on the Need for Guidance and Uniformity in Filing ESI and Records Under Seal. My concerns about Pacer are broad-based: First Amendment rights, individual privacy rights, privacy rights of individuals under investigation, the rights of criminal investigators for unimpeded discovery of the truth, and the rights of litigants to preserve trade-secrets and other confidential information. Professor Stuart agreed generally with these comments on Pacer in my article, stating in correspondence, which, again I have permission to publish:

Wow, what a blunder. And I think for all the reasons you mention this makes it more important than ever to limit private material at the front end. Sealing or confidentiality can be problematic. TMZ has a field day when anything shows up involving celebrities (not that I am particularly sorry for them). But the whole “practical obscurity” of court filings is clearly a thing of the past, and the federal government moves so slowly when it comes to technology. 

The recent case concerning a normally secret criminal warrant against a past President, one that has high First Amendment values for that reason, is instructive on litigants privacy, Pacer and balancing privacy interests against the public’s right to know. In re Warrant, No. 22-8332-BER, 2022 U.S. Dist. LEXIS 150388 (S.D. Fla. Aug. 22, 2022). Motions to unseal the warrant were brought by almost every major news organization in the world as Intervenors and opposed by DOJ. On August 22, 2022, Magistrate Judge Reinhart ordered the Warrant to be unsealed, but only after the DOJ first had an opportunity to suggest redactions. He imposed a deadline of August 25, 2022, for the DOJ to file, under seal, the warrant with redactions. His reasoning is very timely and instructive:

Despite the First Amendment right of access, a document can be sealed if there is a compelling governmental interest and the denial of access is “narrowly tailored to serve that interest.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982). . . .

The Government argues that unsealing the Affidavit would jeopardize the integrity of its ongoing criminal investigation. The Government’s motion says, “As the Court is aware from its review of the affidavit, it contains, among other critically important and detailed investigative facts: highly sensitive information about witnesses, including witnesses interviewed by the government; specific investigative techniques; and information required by law to be kept under seal pursuant to Federal Rule of Criminal Procedure 6(e).” ECF No. 59 at 8. . . .

After weighing all the relevant factors, I find that the Government has met its burden of [*16]  showing good cause/a compelling interest that overrides any public interest in unsealing the full contents of the Affidavit. . . . I must still consider whether there is a less onerous alternative to sealing the entire document. The Government argues that redacting the Affidavit and unsealing it in part is not a viable option because the necessary redactions “would be so extensive as to render the document devoid of content that would meaningfully enhance the public’s understanding of these events beyond the information already now in the public record.” ECF No. 59 at 10; see also Steinger, 626 F. Supp. 2d at 1237 (redactions not feasible because they would “be so heavy as to make the released versions incomprehensible and unintelligible.”). I cannot say at this point that partial redactions will be so extensive that they will result in a meaningless disclosure, but I may ultimately reach that conclusion after hearing further from the Government. . . . I therefore reject the Government’s argument that the present record justifies keeping the entire Affidavit under seal. 

Id. at *15

On August 26, 2022, the judge approved the redacted warrant and it was unsealed and opened to public view. I then was able to immediately download a copy and post it on my blog, FULL TEXT OF THE OFFICIAL COURT REDACTED SEARCH WARRANT AGAINST DONALD TRUMP.

 Dobbs v. Jackson Women’s Health Organization

I also asked Professor Stuart to address for my readers the limited topic of what Dobbs has done to the right to privacy in discovery. She is currently working on a full article on this important subject. So please take this short comment as something of a teaser. I will let you know when the full article is released. Her full essay will look more generally “at how far the Dobbs decision goes to eroding not just the right to choose but the more general right to privacy that Roe found implicit in the Constitution.” Stuart, private correspondence with Losey, August 2022. In the meantime, here is her comment on Dobbs.

In sum, Dobbs most directly threatens the right to privacy in the sense of autonomy and decision-making.  It is less of a threat to the privacy of information. This conclusion is buttressed by the decision by the Court in the previous term striking a California statute that required disclosure of donor information, Americans for Prosperity Foundation v. Bonta, 594 U.S. __ (2021).  While grounded in the First Amendment’s freedom of association, the opinion gives broad support to privacy concerns respecting anonymity in relation to “sensitive causes.”

Professor Stuart, Id.

Professor Stuart was kind enough to create a video for us that further explains this distinction and the impact of Dobbs.

Professor Stuart on “Dobbs” and right to privacy (used with permission)

Stay tuned for Part 3 coming soon with the Conclusion of this series. I will make specific suggestions for how to build upon the important work of Professor Stuart in privacy and discovery, including yet another revision to Frankenstein Rule 26, and how the EDRM, The Sedona Conferences and other organizations can help.

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Posted by Ralph Losey

The Right to Privacy in Modern Discovery: a review of a great, new law review article – Part 1

August 29, 2022
Professor Allyson Stuart

Summary and analysis of Professor Allyson Stuart’s much needed law review article on privacy in ediscovery in civil litigation. The article is supplemented with written and video interviews of Professor Stuart on ediscovery and privacy issues. In Part 2 there will be a special focus on the impact of the Supreme Court’s overturn of Roe v Wade, which was rendered after the article’s publication.

This blog is the first part of my review of one of the most informative and useful law review articles I have read in a long time. A Right to Privacy for Modern Discovery, 29 GEO. MASON L. REV. (Issue 3, 2022). The article is by Professor Allyson Haynes Stuart of the Charleston School of Law. I encourage you to download and read A Right to Privacy for Modern Discovery and keep it handy for its many good case citations. Professor Stuart is a bona fide expert in this area. She specializes as both a scholar and legal practitioner in information privacy, e-discovery and Internet law; three of my favorite subjects.

This is my second venture this year into review of law reviews. For the first on another of my favorite subjects, artificial intelligence, see the May 2022 blogs, Robophobia: Great New Law Review Article – Part 1, Part 2 and Part 3 and Professor Wood’s article, Robophobia. Woods, Andrew K., Robophobia, 93 U. Colo. L. Rev. 51  (Winter, 2022). These highly intelligent, engaging law professor attorneys, Woods and Stuart, give me renewed hope for the profession in general and, especially, for the key areas of technology law.

About Professor Allyson Hynes Stuart

Allyson Haynes Stuart

Allyson Haynes Stuart joined the Charleston School of Law faculty in 2004. Allyson is a 1995 magna cum laude graduate of the University of South Carolina. Upon graduation she clerked for David C. Norton, District Court Judge for the District of South Carolina in Charleston. She then worked as an associate for Cleary, Gottlieb, Steen and Hamilton from 1997-2002, and then as a director of the legal department at Sony Corporation of America, 2002-2004. At Charleston School of Law Stuart Professor Stuart teaches contracts, civil procedure, evidence, information privacy law and e-discovery. She has also taught as an adjunct professor at Brooklyn Law School and at the Institute Empresa (I.E.) Law School in Madrid, Spain.

Professor Stuart has written many other articles of interest to readers, including:

Allyson Stuart has also served as Of Counsel for the Crystal law firm, since 2015. The firm has an intriguing slogan: “Lawyers for Lawyers and International Matters.” The firm says that it is primarily a transactional law firm that offers some litigation services.

To conclude the personal introduction, Allyson, like me, has her own YouTube Channel, focusing on legal instruction. Professor Stuart’s videos, made in 2013, are on what she calls “flipping the classroom.” They address most first semester Contracts issues as well as some difficult aspects of Evidence.

Introduction to Professor Stuart’s Article

Privacy in discovery has been largely ignored in rules of civil procedure and left to the courts and lawyers to come up with their own solutions. The result is a hodge-podge of case law and local rules. This area of the law is, as Professor Stuart aptly describes, buried in “surprising obscurity.” Her article is a much needed unearthing and organization of the law. As Professor Stuart explains in her introduction after discussion of federal civil procedure rule changes:

Amid all these changes, little attention has been paid to privacy as opposed to time and expense.10 The Rules do not provide for explicit protection against discovery based on privacy,11 with the exception of redaction of personal information under Rule 5.2.12 There has long been the idea that privacy protection exists against government searches and seizures, but that there is no such concept in civil discovery.13 However, close analysis of cases reaching back to the adoption of the Rules shows that federal courts have in fact used privacy rationales to protect against discovery in many areas. District courts in particular have developed an interpretation of the Rules that protects litigants and non-litigants from discovery; courts have developed certain categories of protected information based on a balancing of the right to privacy against the need for the information in the context of the litigation.14 This law derives from Supreme Court precedent, from public policy represented in federal and state statutes, and from discretionary judicial application of the Rules. This Article unearths this body of law from its surprising obscurity. With a firm grounding in the foundations and justifications for federal protection of privacy in discovery, and in light of recent Supreme Court doctrine, the Article describes how privacy arguments can address increasingly intrusive discovery demands.

Overview of Professor Stuart’s article, A Right to Privacy for Modern Discovery

After an Introduction, A Right to Privacy for Modern Discovery begins with a historical overview of privacy in civil discovery, including the landmark case of Hickman v. Taylor, 329 U.S. 495 (1947). Professor Stuart observes that discovery protections can be divided into two broad categories. One is protection for information or communications deemed confidential, including attorney-client, trade-secret, business records, tax returns. The other is protection for personal privacy reasons, which professor Stuart explains:

is based on Supreme Court interpretation of the constitutional right to privacy in intimate or otherwise highly personal matters, including marriage, contraception, sexual activity, medical information, family relations, and other personal information. In addition, the Constitution protects against compelled disclosure of information that would violate a person’s First Amendment rights, such as freedom of association.

As to the Constitution based privacy protection provided to discovery in civil proceedings (criminal proceedings are not discussed directly in this article), Professor Stuart notes three broad areas:

  1. Freedom from Compelled Disclosure of Association: NAACP v. Alabama and Seattle Times v. Rhinehart.
  2. Privacy of Intimate Matters: Griswold v. Connecticut, Whalen v. Roe, and Roe v. Wade.
  3. Freedom from Compelled Disclosure of Personal Matters: Whalen v. Roe, Nixon, and Reps. Comm.

Next the article considers the public policy of privacy in discovery and identifies three basic grounds:

  1. Statutory Publication Shelters
  2. Persuasive State Law
  3. Balancing the Privacy and Litigation Interests

As to the balancing used to provide privacy to litigants, four factors are considered:

  1. Clear Relevancy Rather Than Mere Impeachment
  2. Evidentiary Influences
  3. Third Party Protection
  4. Protective Measures

The next section is Privacy in Modern Discovery, discussed in detail below, followed by the Conclusion. The Privacy in Modern Discovery section, which is the real meat of the article, is divided into three main parts:

  1.  Discovery Today, which includes E-Discovery and Proportionality, Modern Subjects of Discovery such as cell phone and social media, Fitbits and other smart trackers, and other discovery from the Internet of Things.
  2. Supreme Court Case Law on Privacy and Technology, including the impact on civil discovery of issues arising in criminal cases, such as cell-phone searches, GPS tracking and the “mosaic theory” of collective personal data accumulation.
  3. A Modern Framework for Privacy Protection in Discovery, examining the current arguments about privacy in discovery.

Discovery Today

Professor Stuart’s Privacy in Modern Discovery section begins, as noted, with the Discovery Today overview (II.A.). Most readers here will already be familiar with these topics and discussion, so I will not go into them in depth. One important insight she provides pertains to the omission of “privacy” as an express factor for proportionality consideration under the Rule 26(b), FRCP.

While the Rules revisions generally addressed the tremendous rise in ESI volume and costs with emphasis on judicial intervention, cooperation, and reduction in scope, they did not give specific attention to issues of privacy.219 However, as discovery’s intrusiveness has pervaded not just vast storage databases and email but chronicles of individuals’ personal lives, privacy has received more attention. Commentators have advocated for privacy to be a factor in the proportionality equation,220 and courts have followed suit.221 Privacy has also featured prominently in recent Fourth Amendment case law, which has in turn influenced discovery decisions.

In a recent email exchange with Allyson Stuart on the interesting point of Rule 26(B), I pressed her on whether she thinks the Rule should be changed again. Here is her response, which, I should add, she gave me permission to include in this blog post:

I have mixed feelings about yet another revision to the Frankenstein that is Rule 26.  As it is, many practitioners fail to pay attention to the revisions, treating the scope as still including anything that would lead to the discovery of relevant evidence and failing to recognize that proportionality is nothing new.  I think instead the culture needs to be curbed, and attorneys should not try to obtain a vast amount of e-discovery simply because it is accessible. The casual nature of email, text and some social media content make them catnip for attorneys, but I really believe there is a chilling effect on litigation because of it.  In particular, if the only relevance for certain discovery is impeachment value, it should be weighed less strongly against competing privacy interests.  All that said, I would love it if the word privacy were included in the proportionality factors.

Author’s Correspondence 8//9/22 with Professor Stuart

I love how she describes Rule 26 as a Frankenstein. The question remains should privacy be added as another body part to the proportionality considerations. In a video conference with Professor Stuart on August 23, 2022, she expanded on this point. Here is the relevant excerpt, which, I should again add, Allyson Stuart gave me permission to record and publish.

Aside from Rule 26(b) and including privacy factors as part of a proportionality analysis, another hot issue today practitioners is cell-phone discovery. It is found at II.A.2.a. Professor Stuart’s article and case citations and discussion on this point are a helpful starting point for your research. Be sure to look at the article itself for the all-important footnotes.

As the Supreme Court has recognized, cell phones are ubiquitous.222 Courts find a strong privacy interest in the content of those devices, particular when a party seeks a forensic examination of the phone.223 Like inspection of litigants’ hard drives and other computer systems,224 inspection of cell phones implicates privacy rights, privileged communications, and non-relevant information.225 Courts are therefore reluctant to order litigants to submit their cell phones to their opponent for purposes of forensic examination absent necessity for purposes of finding highly relevant evidence, or proof of spoliation.226 Courts also find a strong privacy interest in cell phone records.227 Courts have been strongly persuaded by recent Supreme Court Fourth Amendment doctrine in finding privacy rights in this data.228

Professor Stuarts discussion of case law is also very interesting in the Fitbit and Internet of Things sub-sections of Discovery Today (II.A.2.c.&d.). She points out that:

All of these subjects of modern discovery push the boundaries of privacy. Technology enables the gathering and storage of vast amounts of information that create digital chronicles of individuals’ personal lives. This phenomenon has been the focus of recent Supreme Court decisions in the Fourth Amendment context.

In Part 2 of this blog series I will go on to next section of her article, II.B., entitled Supreme Court Case Law on Privacy and Technology. This is very interesting, especially considering the Supreme Court bombshell case on abortion that came down after her article. Dobbs v. Jackson Women’s Health Organization, 597 U.S. _ (2022). Part 2 will go into all of this, along with criminal law considerations, and several more written and video interviews of Professor Stuart, including an interview that goes beyond discovery issues to consider the general privacy implications of Dobbs. I will also consider the privacy implications and other issues raised by the recent Donald Trump criminal warrant.

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Posted by Ralph Losey

Jerry Seinfeld Meets eDiscovery: Rules of the Game and the Pony Scene

May 14, 2022
Ralph Reading the Rules

I could not resist writing about a new case that mentions electronic discovery (yes, I have a standing Lexis search), not because it creates any kind of great precedent or anything, but because it involves one of my all-time favorite comedians, Jerry Seinfeld. Charles v. Seinfeld, 2022 U.S. Dist. LEXIS 54387, Case No. 18-cv-1196 (AJN), (SDNY, April 29, 2022). The opinion is by Judge Alison Julie Nathan, who was sitting by designation after her elevation on March 30, 2022, to the Second Circuit Court of Appeals. The opinion itself, is, with all due respect, kind of like the Seinfeld’s series. It is not about anything terribly important. It’s not about much really. But still, I found it very funny in a cynical, jealous lawyer sort of way and it does have an important, between the lines, message. Read on if you are into that sort of thing.

Rules of the Game

To lay the proper groundwork for this blog about Seinfeld (personal opinions only), I have to start by sharing, for fair use educational purposes only, one of my favorite Jerry Seinfeld quotes. You’ve all heard it, the one about lawyers and judges. It explains my photo.

“What are lawyers, really? To me a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there’s a problem, the lawyer is the only person that has read the inside of the top of the box. I think one of the fun things for them is to say, ‘objection.’ ‘Objection! Objection, Your Honor.’ Objection, of course, is the adult version of, ‘’fraid not.’ To which the judge can say two things, he can say, ‘overruled’ which is the adult version of ‘’fraid so,’ or he could say, ‘sustained,’ which is the adult version of ‘Duh.’”

Jerry Seinfeld, Seinfeld, Season 4: The Visa

Who Wouldn’t Love A Pony ?

I have seen every episode of Seinfeld many times. The famous Pony scene in Season 2, Episode 2, immediately came to mind when I read Charles v. Seinfeld. As you read on, see if you can figure out why that popped into my head. In case you don’t have instant recall of this great, family dinner table scene, check out this excerpt on YouTube. Better yet, treat yourself and watch the whole episode. It’s one of the best.

Before I do a fair use educational quote of the Pony script, let me share another Seinfeld quote, one that is supposedly serious. Being the naive idealist that I am, I believe it. Anyway, Jerry is credited with saying: “I like money, but it’s never been about the money.” I get that, as I truly feel the same way. Still, I do like money as much as the next person, maybe even the next lawyer (nah, probably not), and money is what Charles v. Seinfeld is all about. It considers a request for an award of fees and costs in favor of the prevailing party, Jerry Seinfeld, which includes costs of $32,692.21 for electronic discovery database hosting fees. Charles v. Seinfeld at *18 (by the way, check out Fn 5 on that page for a great Seinfeld-like note by the obviously very sharp, Judge Nathan: “There is a $0.30 discrepancy in the costs requested ($100,918.71) and the sum of the component costs.”)

Here are the lines and scene that came to mind when I read Charles v. Seinfeld. First, to set the stage, Manya is an elderly Jewish immigrant relative who is hosting a family dinner that Jerry and Elaine were roped into attending. Jerry and Elaine were bored and wanted to leave. At Elaine’s prodding, Jerry started to rant about children who had ponies.

Elaine: What about Ponies huh? What kind of abnormal animal is that? And those kids who had their own ponies.

Jerry: I know. I hated those kids. In fact, I hate anyone that ever had a pony when they were growing up.

Manya: I had a pony!

Jerry: Well, I didn’t mean a pony per se

Manya: When I was a little girl in Poland, we all had ponies. My sister had pony, my cousin had pony. So, what’s wrong with that?

Jerry: Nothing. Nothing at all. I was just expressing

Helen: Should we have coffee? Who’s having coffee?

Manya: He was a beautiful pony. And I loved him!

Jerry: Well, I’m sure you did. Who wouldn’t love a pony? Who wouldn’t love a person who had a pony?

Manya: You! You said so!

Jerry Seinfeld, Seinfeld, Season 2, Episode 2.

At the end of this scene, Manya storms out, very upset at Jerry, saying “That’s it! I had enough!” Unfortunately, Jerry learns the next day that Manya died later that night.

Charles v. Seinfeld: A Run of the Mill Frivolous Copyright Case

If you are really interested (I’m not) in the dubious merits of the case, see the 2019 order granting the defendants’ motion to dismiss (Fraid-so!) by then District Court Judge Nathan. Charles v. Seinfeld, 410 F. Supp. 3d 656, 2019 U.S. Dist. LEXIS 169543, 2019 WL 4805684 (S.D.N.Y., Sept. 30, 2019). It is enough for my purposes to hear Judge Nathan’s later summary of the case in her April 29, 2022 order ruling on defendants’ motion for attorneys’ fees and costs under 17 U.S.C. § 505.

Plaintiff Christian Charles, an award-winning writer, director, and producer, alleged copyright claims against Jerry Seinfeld and several related Defendants related to the show Comedians in Cars Getting Coffee. The Court ultimately dismissed the second amended complaint on statute-of-limitations grounds, explaining [*2] that Charles was on notice of his claims since at least 2012 but did not file suit until 2018, far outside the three-year statute of limitations for such claims. Id. at 8.

Charles v. Seinfeld, 2022 U.S. Dist. LEXIS 54387, Case No. 18-cv-1196, *1-2, at pg. 5 of 13, (SDNY, April 29, 2022),

The Second Circuit affirmed (Fraid not. Duh!) the Sept. 30, 2019 dismissal on June 18, 2020. The obvious Statute of Limitations winner, Jerry Seinfeld, et al, then moved for fees. That’s when the real fun began. To get an award of fees under the copyright statute Seinfeld’s attorneys had to show that Charles’s claims were objectively unreasonable. They failed to convince the Magistrate (Fraid not!) who was assigned to hear their motion for fees and costs, Judge Katharine H. Parker.

Seinfeld then objected to Judge Parker’s Report and Recommendation and Judge Nathan agreed (Fraid so. Duh!) with Seinfeld. Judge Nathan concluded that Charles’s claims were objectively unreasonable and that other relevant factors favored awarding Defendants’ attorneys’ fees. Id. She ordered Charles to file a brief on “the amount of the fee award,” with particular attention to the relative financial strength of the parties. Id.

Charles didn’t do that, instead he re-argued the merits of the Magistrate Judge’s report and recommendation denying any award at all. That usually upsets a judge, but here, Judge Nathan, now an appellate judge sitting by designation to wrap up old business, showed great restraint. She heard the procedurally improper, caveman lawyer type motion for rehearing and ruled on it here. She denied the rehearing argument (Duh!) and went on to address the issue of the amount of the award with no help from Charles. Id. at *3-5 at pgs. 5-6 of 13. Who knows, that might have been a smart move on his part.

Seinfeld Attorney’s Fee and Costs Motion – Those Are Some Expensive Ponies!

Before we get to the ponies, remember that this case was decided on a motion to dismiss. There was no discovery. None. Yet, somehow Seinfeld’s attorneys incurred costs of $32,692.21 for electronic discovery database hosting. Hmm. They moved for an award of these costs and, of course, the motion was denied. They got nada, because, as all ediscovery lawyers know, the ancient federal costs award statute does not allow for ediscovery costs. Moreover, as Judge Nathan patiently explained, instead of just saying duh:

Similarly, the electronic database hosting fees are [*19]  very high and not properly imposed on Charles in a case that did not proceed to discovery. Defendants of course had an obligation to preserve relevant documents for discovery, as did Charles, but both sides bear and typically retain that cost.

Id. at *17 at pg. 11 of 13.

Seinfeld’s attorneys were, however, awarded costs of $92 for paper copies. I personally find that funny.

In another Fraid Not! type eliciting move, Seinfeld’s attorneys also asked for an award of costs of $66,386.26 for electronic research fees. Again, same result, zero award for that. (Duh!) As Judge Nathan ruled, it is well settled such charges are already accounted in the attorneys’ hourly rates and research time. Id. at *16 at pg. 10 of 13. Wish it were not so, but it is; besides, $66,386.26 is one large Westlaw or Lexis fee for a simple Statute of Limitations case. Plus, as everyone knows, including the judge I presume, law firms are not charged by the project.

Still, Seinfeld’s attorneys justified the reasonableness of the fees and costs award requested on the representation that these were the fees and costs at rates actually billed to and paid by their clients. Here again is Judge Nathan explaining that argument, one which I have carefully used myself, and I emphasize carefully, because the representations better be true. Note I have omitted the lawyers names here as I have no intent to offend and I understand their frustration perfectly well with the obviously very annoying opposing counsel.

Generally, an “attorney’s customary billing rate for fee-paying clients is ordinarily the best evidence of” a reasonable hourly rate.

According to the ______’s declaration, the rates listed above are those actually charged and paid by ___________ clients for comparable work. That weighs in favor of finding the rates reasonable, but is not dispositive.

Id. at *6, *9 at pgs 6, 7 of 13.

Now we finally get to the unusually large ponies, the facts that took my breath away, namely the hourly rates of the attorneys, the fees requested, and the things they billed their client for. They also seemed to shock Judge Nathan, a very experienced judge in New York City, where all of the judges have pretty much seen it all, and so that’s really saying something.

Defendants request a staggering $872,939.66 in attorneys’ fees and $100,918.71 in costs. … That fee amount is constituted by 1,465.9 hours of work completed by eight attorneys as well as paralegals and support staff…

Id. at *8 at pg. 7 of 13.

Wow. I’m staggered. All for a simple copyright case that the defense argued was frivolous and they won on a motion to dismiss based on an obvious statute of limitation defense. But wait, there are still more ponies. The senior partner in charge of the case represented that his hourly rate in 2020 was $1,550.00. Yup, that’s One Thousand, Five Hundred and Fifty Dollars per hour. Ok. I’m really impressed, maybe just a wee bit jealous. <Secret thought: I really need to raise my rates. I’ve read the rules on the back of many game boxes.> And that was two years ago. I bet his rate is even higher now.

But wait, my sisters and cousins have ponies too. The sixth year associate working on the case had a standard rate of $965 per hour. Gees! But wait, there’s more. Five first-year associates, yup, kids barely out of law school, had their own ponies. Their hourly rates ranged from $545 in 2018 to $650 in 2020. <Secret thought: All right, that does it! I’m raising my rates.> There’s still more. Everyone had ponies. Three paralegals working on the case had standard rates of $431.25 per hour. If you are not astonished yet, consider this additional detail by Judge Nathan, who, along with her clerks, obviously put a lot of work into this. But I guess “a lot of work” is relative as these comments show.

A few examples demonstrate the excessive nature of the hours billed. First, take the series of motions to dismiss that Defendants filed. The lead associate, _______, alone billed 120 hours to research and draft the initial motion to dismiss; an additional [*14]  130 hours to update the motion following the first amended complaint; and a further 37 hours to update it following the second amended complaint. And partners and junior associates also billed hours to contribute to and review this work. The Court finds substantial overlap in the authorities across the three briefs filed in support of the motions to dismiss, suggesting that the hours billed to modify later briefs were in large part unnecessary. And the approximately 180 hours spent by associates to analyze Charles’s response and to draft a reply exacerbates the issue. At bottom, given the straightforward statute-of-limitations defense at the center of this case, Defendants’ request of $300,000 for drafting just the moving briefs alone is plainly unreasonable.4

FN 4- As Defense counsel observed at the oral argument before Judge Parker: “There was no novelty here. There was no mystery here. This case was as dead on arrival as a copyright case can be. I’ve been practicing copyright for a lot of years, 30 years.” Tr. at 13, Dkt. No. 135.

Id. at *13-14 at pg. 9 of 13.

I could go on, but the icing on the pony cake for me was that the defense attorneys put on and billed for a mock argument. Not only that, they even billed for first years to watch it. I kid you not. Here is Judge Nathan again and her dry wit. I’m pretty sure she is a Seinfeld fan too.

Third, the records reflect hours billed for multiple attorneys, including junior associates, to attend a mock argument and oral argument. Typically, courts do not pass the cost of associates observing mock arguments or oral arguments on to the opposing party in a fee award.

Id. *15 at pg. 9 of 13.

Conclusion – DUH!

Judge Alison Nathan

Second Circuit Court of Appeals Judge Alison Julie Nathan, sitting by designation as the former trial judge of Charles v. Seinfeld, considered Seinfeld’s motion for award of fees of $872,939.66 and costs of $100,918.71. She also considered the objections of the plaintiff, Charles. She ruled and awarded only $28,750 in attorneys’ fees and $92 in costs for a total of $28,842. Judge Nathan did make the award joint and several against the plaintiff and plaintiff’s counsel. Some small solace to Seinfeld’s attorneys. They were pushing hard for personal sanctions against opposing counsel. On the other hand, as a final gesture, that seems funny to me at least, Judge Nathan said Charles and his attorney could make these payments in equal monthly installments over a ten-year period.

Dear fellow lawyers, even if opposing counsel is beyond annoying, a real caveman, don’t kid around with a judge in seeking sanctions. This is, in effect, what was going on here, seeking sanctions in the form of fees against opposing counsel. The judges have not only read the rules of the game, but they know them well and know how to apply them fairly. Do not try to game the system with inflated demands.

2 Comments | Lawyers Duties, Spoliation/Sanctions | Tagged: , , | Permalink
Posted by Ralph Losey

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