INFORMATION DECK ABOUT YOUR KNOWLEDGE

Sunday, June 23, 2013

Discovery on Discovery Demands Cost-Shifting

Courts should order more cost-shifting in discovery. In particular, in the rare cases where courts allow discovery on discovery (i.e., how the opponent preserved, collected, and produced responsive documents), it should be presumed that the requester pays for the responding party's costs to produce this information.

As U.S. Magistrate Judge John Facciola noted more than 10 years ago in McPeek v. Ashcroft, 202 F.R.D. 31, 33-34 (D.C 2001):

American lawyers engaged in discovery have never been accused of asking for too little. To the contrary, like the Rolling Stones, they hope if they ask for what they want, they will get what they need. They hardly need any more encouragement to demand as much as they can from their opponent.

The reason that lawyers do not self-regulate their discovery requests is self-evident: They can consume this free good without restraint. Under the American Rule, requesting parties have little financial incentive to narrow their requests or only seek information they expect to actually help them, because the cost of finding and producing the information falls on their opponent. And, while there are other incentives to curb wanton discovery abuse — such as professionalism, courtesy, reputation, discovery sanctions, FRCP 26(g), and proportionality — these measures only restrain the grossest of actions (and, often, only with Court intervention) and do not focus a requesting party or its counsel's mind on the marginal costs and benefits of a request quite like paying for it would.

The basis for the American Rule is well-known and perhaps most succinctly discussed by Judge Shira Scheindlin in Zubulake I:

Courts must remember that cost-shifting may effectively end discovery, especially when private parties are engaged in litigation with large corporations. As large companies increasingly move to entirely paper-free environments, the frequent use of cost-shifting will have the effect of crippling discovery in discrimination and retaliation cases. This will both undermine the 'strong public policy favoring resolving disputes on their merits,' and may ultimately deter the filing of potentially meritorious claims (Zubulake v. UBS Warburg, 217 FRD 309, 317-318, quoting Pecarsky v. Galaxiworld.com Limited, 249 F.3d 167, 172 (2d Cir. 2001)).

In essence, the American Rule exists to prevent the doors of the courthouse being slammed shut on poor parties who cannot afford to prosecute their claims. This is why the best, least costly, most refined tool to manage the costs of discovery — making the requester pay — has been used only in cases where the data is not reasonably accessible.

However, the power behind the logic of the American Rule fades when the requested discovery has little to do with the merits of the claims and defenses. In the case of discovery on discovery, the requesting party does not seek information directly relevant to its claims or defenses, but rather seeks to verify that the responding party has complied with its obligations in responding to prior discovery requests. As an initial matter, courts should only permit this type of discovery in rare situations where good cause exists to suspect that such discovery will indeed yield relevant results. See, e.g., Federal Rule of Civil Procedure 26(b)(1). Too often, discovery on discovery is used as a strategic tool to increase costs incurred by the responding party and is sought not based on evidence that discovery abuse has occurred, but rather, "on a wing and a prayer," in the optimistic hope that a second go-round will yield relevant information.

A reversal of the American Rule here will properly incentivize requesting parties to seek discovery on discovery only when they have a genuine belief that such discovery is necessary to a just resolution of the dispute, as opposed to utilizing such discovery as a means of exacting strategic pressure on an opponent, without great risk of chilling meritorious claims being resolved on the merits. Parties seeking discovery on discovery will only do so where they expect the benefit of the discovery to outweigh its costs and will naturally tailor the discovery to those areas where it thinks there have been failures, rather than the blunderbuss approach that is too often used now. Switching the presumption as to who pays for such discovery does not close the courthouse doors on parties who cannot afford discovery because the underlying facts of the dispute (was the contract breached; was toxic sludge dumped in the river; was there a price-fixing conspiracy) are not the ones being sought. A party can — and should — be able to bring, investigate, and advocate claims or defenses without ever investigating how the other party produced documents or disclosed information. Making a party pay for the privilege of undertaking this satellite discovery, after meeting the necessary thresholds, does not hinder a party from prosecuting its case-in-chief. Simply put, discovery on discovery is not about resolving claims on the merits. Moreover, if a requesting party does uncover discovery abuse or establish a material failure to properly respond, shifting the costs back to the responding party may be appropriate.

Similarly, the requesting party may, at times, seek to understand the structure of its opponent's IT architecture, usually in an effort to identify additional custodians or locations of files as a potential source of relevant information. While the discovery of a company's data management systems and resources does not lead to the same egregious problems as discovery on discovery, formal depositions, document requests, and interrogatories regarding such information, which do nothing to resolve the actual dispute, can be terribly expensive and time-consuming. Reversal of the American Rule here will encourage informal resolution of these issues, which should be possible absent extraordinary circumstances. Courts will then not be required to delve into the minutiae related to the various issues associated with IT architecture.

A browser or device that allows javascript is required to view this content.

Subscribe to Law Technology News

You must be signed in to comment on an article

View the original article here

Safeguarding Brand Reputation In Social Media

By Alan L. Friel, Akash Sachdeva, Jesse Brody, and Jatinder Bahra All Articles

Corporate Counsel

June 18, 2013

Social media has changed the way businesses communicate, enabling brands to directly engage with consumers. Companies are turning increasingly to social media platforms to structure innovative and edgy marketing and promotions that often include a mix of user-generated content, text messaging, Twitter messaging, Facebook applications, blogging, viral marketing, and other social elements. However, the tech-savvy marketing professionals that are entrusted to do this are often unaware of the complex legal overlay of the digital world and the potential pitfalls for their company’s failure to comply.

In working closely with our clients engaged in social media marketing, we have identified the following top 10 compliance issues to consider:

1. Statements made in social media will be held to the same standard as traditional advertising claims.

Laws regarding advertising and consumer protection apply equally to social media and traditional media. All claims must be substantiated and the message, taken as a whole, must not be deceptive. If the message cannot be presented in an ad or commercial, it cannot be presented via social media.

2. Companies may be responsible for what their customers, employees, celebrity spokespersons, and contractors say about them in social media.

The Federal Trade Commission, which regulates deceptive advertising and unfair business practices, updated its Endorsement and Testimonial Guidelines to address use of social media to promote a company or its products or services. Other countries have similarly applied their consumer protection and advertising laws to social media. In the U.K., the Advertising Standards Authority and the Office of Fair Trading have actively done so. In short, if there is a material connection between the speaker and the company, it must be disclosed in a clear and conspicuous manner proximate to the message.

Employees, contractors, and spokespersons have a material connection because they are all paid. However, merely giving a blogger free products to sample and write about, or providing sweepstakes entries to consumers each time they tweet may also be enough to trigger disclosure requirements. The FTC and OFT have initiated investigations and enforcement actions against companies that gave gift bags to bloggers attending an advance product demonstration, paid for blog posts, and gave sales lead commissions to bloggers that linked readers to an e-commerce site—all where the bloggers failed to disclose that they got something of value from the company. In recent guidance regarding online and mobile disclosures, the FTC warned that notices using icons and abbreviations, such as in Twitter, would be inadequate if the meaning was not clear to consumers.

3. Where the company does not review and approve social media messages of those with material connections to it before they are publicly distributed, it needs a program to train and monitor those who speak for it and take corrective action when violations occur.

Frequently, in social media promotions it is not practical for the company to review and select or approve the messages its social media influencers are making. The FTC will nonetheless hold the company liable if its influencers fail to make the required disclosures or if they make false, misleading, atypical, or unsubstantiated claims. To minimize the risk of this happening, companies need to educate their influencers on what the law requires and how to comply, require them to follow these rules, make reasonable efforts to monitor them, and take appropriate corrective action for violations.

4. Maintaining a good social media policy, which influencers are contractually obligated to follow, may help to stave off liability.

Although the FTC has stated that having a good social media policy and compliance program is not a safe harbor, it has shown that it takes such efforts into account in exercising prosecutorial discretion.

5. Be careful about restricting employee speech in your social media policy and using social media to make HR decisions.

To avoid running afoul of the FTC’s requirements, many companies have simply prohibited employees from using social media to talk about the company or its products or services, absent company review and consent. However, the National Labor Relations Board has been very active in prosecuting companies taking this approach for illegally restricting an employee’s right to organize and to speak about the conditions of their work and workplace. The laws protecting employee rights are even more protective of employee speech in Europe. Accordingly, social media policies need to be carefully tailored to not infringe upon employees’ rights. Your social media policy should, however, address ownership of the company’s social media accounts and the account’s followers—especially when the account is opened by an employee on behalf of the company—to avoid problems when account operators leave.

Six states in the U.S. have passed laws that prohibit requiring applicants to make their social media accounts available to a potential employer so that it may review private content. Password disclosure requirements would also violate the fundamental right of privacy in Europe. Further, even looking at publicly available social media profiles and postings of job applicants might create problems, for instance where sexual orientation, religion, or political affiliation is learned and is alleged to be the basis of a decision not to hire. If a company is going to include a review of public social media content as part of its pre-employment screening, it may want to consider having that done by a party that will not be making hiring decisions and have that person provide to the decision-makers only information that would be appropriate in making legal hiring decisions.

Finally, taking disciplinary action against employees for their off-duty speech, unrelated to the company and on their own social media accounts, could potentially violate employee rights.

6. Consider the medium, platform, industry, and jurisdiction in designing compliance efforts.

There are specific regulatory requirements, including opt-in or opt-out options, for using email, social media system messaging, and text messaging for promotional messages. In addition, social networks have their own terms of use, end-user license agreements, privacy policies, and rules that govern the use of the platform for commercial purposes and the ownership of content and data passing through the platform, which should be carefully considered before a third-party platform is incorporated into a company’s promotional marketing. Also, there are many additional requirements applicable to specific regulated industries such as food, alcoholic beverages, drugs, tobacco, telecommunications, insurance, financial services, gambling, automobiles, gasoline, and health care.

7. Be aware of special considerations regarding children.

As of July 13, 2013, the U.S. Children’s Online Privacy Protection Act (COPPA) Rule will prohibit use of social media plug-ins on children’s sites, or knowing use of same in connection with children under 13 years of age. Similarly, online behavioral advertising and use of persistent identifiers for other than limited internal operational purposes is prohibited for children and children’s sites.

This not only means no integration of social media into children’s sites, it also means that even operators of mixed-use and general-audience services will need to disable social media tools if they become aware that a user is 12 years of age or under, such as may be the case if a user attempts to register or enter a sweepstakes indicating an age under 13 years.

8. Respect third-party intellectual property and publicity rights, and determine an appropriate policy regarding ownership of user-submitted content.

Laws in various jurisdictions, the nature of the platforms selected, and the manner in which a social media promotion is structured will all affect the degree to which companies will be responsible for infringement of third-party rights arising out of user-generated content promotions, including claims of copyright infringement and defamation. Further, in the U.S., a company must have consent to associate a person with the promotion of a company or its products or services. Failure to obtain adequate permission to do so has led to lawsuits against brands arising out of social ads on social media platforms and adding uncleared photos of individuals on Facebook Timelines. For these reasons, companies should be cautious with repinning, re-tweeting, and reposting.

9. Perform due diligence on vendors and obtain an indemnity in your contract with them.

Undertake due diligence regarding the vendors enaged to execute social media campaigns. Vendor agreements should include specific compliance obligations (including following the company’s social media policy and requiring it to educate its employees and subcontractors) and warranties and an indemnity.

10. Don't forget about social media evidence in litigation.

If your company is involved in litigation, chances are social media evidence could be relevant. Anything potentially relevant, whether or not it is viewable by members of the public, is discoverable. It also is critical to preserve social media evidence, just like other types of evidence, as part of a litigation hold. Content on your organization’s blogs, Facebook pages, and other social media accounts most likely continually evolves, with some posts being regularly deleted. However, when faced with litigation, failure to preserve such information could violate discovery obligations. Remind employees about social media sources in particular when issuing litigation holds, and, if necessary, use forensic collection tools designed to capture social media information for discovery, ensuring that metadata—important for authentication purposes—remains intact.

Social media is an important and effective tool for brands to use in engaging with consumers. However, doing so presents numerous regulatory, intellectual property, labor and employment, and other potential liability issues that corporate counsel must consider.

Alan L. Friel is a partner at Edwards Wildman Palmer in Los Angeles, where he is chair of the Media and Technology Licensing & Transactions practice, co-chair of the Technology, Media, and Telecommunications practice, and is on the Data Protection steering committee. He writes, speaks on, and provides counsel on the privacy, data security, technology, regulatory, and intellectual property implications of using mobile, social, and digital media. Akash Sachdeva, a partner with Edwards Wildman in London, has over 13 years of experience in intellectual property litigation. Jesse Brody is a partner at Edwards Wildman Palmer in Los Angeles, where his practice focuses on legal issues affecting entertainment, technology, advertising, and privacy. He routinely advises clients in new media-related matters that involve privacy policies, terms of use, user-generated content, social networks, downloadable software, and commercial text messages. Jatinder Bahra, an associate in the London office of Edwards Wildman, specializes in technology, media, and telecommunications matters.

A browser or device that allows javascript is required to view this content.

You must be signed in to comment on an article

View the original article here