eDiscovery Assistant

O'Shea v. Leader, Bulso & Nolan, PLC

2019 WL 13223712 (N.D. Ala. 2019)

April 29, 2019

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Summary

The Special Master denied the Defendant's request for an ESI inspection and granted the motion to enforce the Shiffman subpoena, requiring the production of various documents. The Plaintiffs were instructed to organize the 700 pages of documents sent to them by Mr. Shiffman, in chronological order and to BATES stamp all of the documents. The documents for which privilege is claimed shall be provided to the Special Master, by providing hard copies in three ring binders.

Thomas O'SHEA, et al., Plaintiffs,
v.
LEADER, BULSO & NOLAN, PLC, et al., Defendants.
This Document Relates to All Cases

2:14-cv-01953-KOB, 2:14-cv-01954-KOB, 2:14-cv-01955-KOB

United States District Court, N.D. Alabama, Southern Division

Signed April 29, 2019

Counsel

David B. Anderson, Deanna L. Weidner, Anderson Weidner LLC, Birmingham, AL, Michael JM Brook, Law Offices of Michael Brook, Santa Rosa, CA, for Plaintiff San Francisco Residence Club Inc.
David B. Anderson, Deanna L. Weidner, Anderson Weidner LLC, Birmingham, AL, for Plaintiffs Thomas O'Shea, Anne O'Shea, Kate Larkin Donahue.
Grandview Credit LLC, Pro Se.
E. Glenn Waldrop, Jr., James W. Gibson, Lightfoot Franklin & White LLC, Birmingham, AL, for Defendants Leader Bulso & Nolan PLC, Eugene N. Bulso.
David B. Anderson, Deanna L. Weidner, Anderson Weidner LLC, Birmingham, AL, Elton H. Darby, III, Clark, May, Price, Lawley, Duncan & Paul, LLC, Birmingham, AL, Michael JM Brook, Law Offices of Michael Brook, Santa Rosa, CA, for Plaintiffs San Francisco Residence Club Inc., Thomas O'Shea.
David B. Anderson, Deanna L. Weidner, Anderson Weidner LLC, Birmingham, AL, Elton H. Darby, III, Clark, May, Price, Lawley, Duncan & Paul, LLC, Birmingham, AL, for Plaintiffs Thomas O'Shea, Anne O'Shea, Kate Larkin Donahue, TAK Tech Point LLC, KKA CAS LLC.

Pratt, James, Special Master

ORDER ON THE DEFENDANT'S SUPPLEMENTAL MOTION TO COMPEL AND ENFORCE SUBPOENA AND REQUEST FOR AN ESI INSPECTION OF MR. SHIFFMAN'S COMPUTER

*1 The Defendants issued a subpoena duces tecum to Michael Shiffman, who served as a lawyer for Plaintiffs during the time period of the underlying suits. Mr. Shiffman, in a declaration, indicating he did a search which produced approximately 3,000 emails, which require review (Case No. 2:14-cv-01953-KOB, Doc. 154-1 at page 3).

In response to Mr. Shiffman concerns about burden, in both cost and personal time, the Special Master ordered Mr. Shiffman to provide Plaintiff's counsel with the 3,000 emails referred to in his affidavit (Case No. 2:14-cv-01953-KOB, Doc. 154-1). Special Master then placed the responsibility on Plaintiff's counsel to go through the 3,000 e-mails to determine whether or not the Plaintiff's object based upon privilege to any of those emails, and further whether any of the claimed privileged documents deal with the issues set out in the Special Master's Order of January 22, 2019 (Case No. 2:14-cv-01953-KOB, Doc. 158).

Mr. Shiffman has now filed a declaration in which he indicated he sent to Plaintiff's counsel, 700 pages of documents pursuant to the Special Master's Order (Case No. 2:14-cv-01953-KOB, Doc. 164-1 at page 3).

Plaintiff's counsel produced for in-camera inspection, 68 pages of the 700 pages produced to them by Mr. Shiffman. The Special Master, after in-camera review, required production of 10 of the 68 pages reviewed, to be produced to the Plaintiffs.

The Defendants claim a deficiency in the production provided to the Special Master for in-camera inspection, based upon a review of the documents which were produced, no documents being produced during certain timeframes, and the volume of documents identified by Mr. Shiffman and produced to Plaintiff's lawyers indicating there may well be additional documents which should have been provided for in-camera inspection.

The Defendants, because their belief of the inadequacy of the production for in-camera inspection and the confusion concerning the documents identified by Mr. Shiffman, as compared with the documents submitted to Plaintiff's counsel, requested an independent ESI inspector to go through the material on Mr. Shiffman's computer, pursuant to parameters and standards to search for any and all information on the computer relative to the subpoena. Mr. Shiffman and the Plaintiffs opposed this request as unduly intrusive, expensive and unnecessary.

After consideration of the responses filed by Plaintiffs and by Mr. Shiffman, the Special Master DENIES the request for an ESI inspection, based upon the belief the production can be handled by a less intrusive and less expensive process.

In order to establish an appropriate process and protocol for the handling of the documents subpoenaed by the Defendants, the Special Master required both parties and Mr. Shiffman to file a pleading stating their contention as to Mr. Shiffman's role in representing the Plaintiffs in the matters made the basis of the subpoena.

The Plaintiffs submitted a statement of position, indicating Mr. Shiffman is a California attorney who has represented the Plaintiffs by providing real estate and business legal services over the years. Plaintiff further contends Mr. Shiffman's role in the underlying litigation was as a real estate/ business lawyer and confidant, hired to provide real estate and business advice, suggestions when appropriate, and to assist with a request when he could. Plaintiffs contend Mr. Shiffman's role and duty was not to conduct the litigation or provide advice regarding civil procedure, evidence or the pretrial and trial strategy (Case No. 2:14-cv-01953-KOB, Doc. 175).

*2 Likewise, Mr. Shiffman responded that he advised the Plaintiffs, as a business lawyer, on any matter for which they requested his advice. (Case No. 2:14-cv-01953-KOB, Doc. 176). However, in a previous filing by through his lawyer, Mr. Shiffman argued that he primarily handled the financial, transactional and management aspects of the real estate interests of the Plaintiffs (Case No. 2:14-cv-01953-KOB, Doc. 164), and then by and through his lawyer, responded that he did assist the Defendants in certain litigation matters, (Case No. 2:14-cv-01953-KOB, Doc. 170).

The Defendants maintain that despite Mr. Shiffman not being licensed in Alabama and not appearing in the Alabama or California title cases, he provided legal services and gave legal advice relative to the litigation made the basis of their subpoena. Further, they maintain he was intimately involved in all aspects of the underlying litigation before LBN became involved in January 2009, during LBN's involvement, and after LPN was terminated in October of 2011. He stated he was an attorney, a trusted consultant, a confidant, consigliere, a participant upon whom the Plaintiffs clearly relied, (Case No. 2:14-cv-01953-KOB, Doc. 171 at pages 3-4).

The Defendants claim Mr. Shiffman billed the Plaintiffs for thousands of hours of legal work in the matters which are the subject of the subpoena and received hundreds of thousands of dollars of compensation, (Case No. 2:14-cv-01953-KOB, Doc. 171 at pages 1-3).

Hence, it is still not clear as to whether Mr. Shiffman was acting as a business advisor or assisting with legal advice concerning the subject litigation in receiving and sending the communications made the basis of the subpoena. It may well be a combination and therefore, decisions need to be made separating legal advice given as a lawyer concerning the litigation made the basis of the subpoena, and real estate and business advice given for other purposes.

Therefore, in order to address the Defendant's request to enforce the subpoena they served on Mr. Shiffman, while protecting the attorney-client privilege, objections raised about the Plaintiffs and determining whether or not as to any privileged communications, should nonetheless be produced pursuant to Ex parte State Farm Fire & Cas. Co., 794 So. 2d 368, 376 (Ala. 2001). The following process and protocol shall be utilized for the production of the requested documents:

1. As previously indicated, the Special Master DENIES Defendant's supplemental motion to compel an ESI inspection in that it seeks to compel discovery that has not been requested by the Defendants, e.g. Rocket Real Estate, LLC v. Maestres, 2016 U.S. District 113094 at *1-2 (S.D. Fla., August 24, 2016); Driskell v. Shutter, 115 F.R.D. 571, 574 (N.D. Ga. 1987). Moreover, the Special Master, in support of this decision, finds the requested computer/ server search to be unduly burdensome to Mr. Shiffman and the parties, based upon the factors outlined in Wiwa v. Royal Dutch Petroleum Company, 392 F.3d 812, 818 (5th Circuit 2000). The proposed ESI search is overly broad because it contains 49 proposed search terms, including terms like “property” and “title”, that likely would gather a large portion Mr. Shiffman's professional correspondence.

2. Special Master GRANTS the Defendant's motion to enforce the Shiffman subpoena and require the production of various documents, either directly to the Defendants or to the Special Master for in-camera inspection.

3. Plaintiff's counsel is hereby instructed to organize the 700 pages of documents sent to them by Mr. Shiffman, in chronological order and to BATES stamp all of the documents, avoiding utilizing the BATES stamp numbers assigned to the documents already produced for in-camera inspection.

*3 4. As to any document for which privilege is not claimed by the Plaintiffs, production is hereby compelled and should be made within seven days of this Order to the Defendants.

5. As for any documents where the Plaintiffs continue to maintain a claim of privilege, a privilege log shall be created, providing the date of the document, identifying information concerning the document, to include who it is from and who it was sent to, and a generic description of the content of the document so the document can be identified, but the privileged material is not disclosed. The BATES stamp number for each of these documents shall be included in the privilege log.

6. The documents for which Plaintiffs claim privilege shall not be limited simply to those falling under the State Farm criteria but shall be ALL documents produced by Mr. Shiffman for which the Plaintiffs claim privilege, and shall be provided to the Special Master, by providing hard copies in three ring binders.

7. The privilege log and claim privileged documents provided in hardcopy in three ring binders shall be produced to the Special Master within seven days of this Order.

8. Mr. Shiffman is hereby ordered to produce the remainder of the 3,000 emails he identified that have not already been produced to Plaintiff's counsel in the 700 pages referred to in his most recent affidavit (Case No. 2:14-cv-01953-KOB, Doc. 154-1).

9. Mr. Shiffman is also ordered to produce all of his itemized billing records for work done for the Plaintiffs in the matters made the basis of the subpoena. These billing records should be produced to Plaintiff's counsel for production to the Special Master for an in-camera review of the billing records.

10. Mr. Shiffman is hereby ordered to produce any correspondence and/or communication with the Plaintiffs in response to having been sent to the Defendant's email concerning the effect of Judge Kallon's March 30, 2011 Order striking certain types of damages.

11. Mr. Shiffman is hereby ordered to produce to Plaintiff's counsel any communication which describes any role he had in advising, suggesting or commenting on the Plaintiff's assertions of diminution of value claims against Wilmer and Lee in the Park Tower litigation.

12. Mr. Shiffman is ordered to provide to Plaintiff's counsel any and all communications he had with the Plaintiffs, relative to the damages that were recoverable in the California litigation.

13. Mr. Shiffman is ordered to provide any documents and/or communications which involve his role in the timing and decision of directing LBN to supplement the disclosure of damages, to include claims of diminution of value against Wilmer and Lee in the underlying Park Tower action.

14. As to the documents ordered produced by Mr. Shiffman in items Nos. 8-13, those documents and/or communication shall be delivered to Plaintiff's counsel within 10 days and produced to Special Master pursuant to the protocol and process described herein, BATES stamped and in three ring binders, within three days of receipt.

15. The standard by which the Special Master will review in-camera, the documents for which privilege is claimed, will be to determine whether production of any of the documents is required, to determine the truth of the Plaintiff's knowledge related to the effect of Judge Kallon's March 31, 2011 Order striking certain types of damages; whether Mr. Shiffman had any role in Plaintiff's assertion of the diminution of value claim against Wilmer and Lee in the Park Tower litigation; whether Mr. Shiffman provided any information and/or advice concerning the damages that were recoverable in the California litigation; and whether Mr. Shiffman play a material role in the timing and decision directing LBN to supplement the disclosure of damages, to include claims of diminution of value against Wilmer and Lee in underlying Park Tower.

*4 16. In the event the Defendants claim there are other contested issues which should provide a standard for the in-camera review in determining the truth of a contested issue, identification of issue(s) should be made within three days of the date of this Order.

17. If the Plaintiffs indicate that any or all of the above identified issues are no longer contested or that they with wish to withdraw their contention concerning any of these issues, their positions should be identified in a pleading filed within seven days of the date of this Order.

The production of any documents for which privilege is claimed for in-camera inspection, shall not be considered to be a waiver of any attorney-client privilege objection.

This Order is intended to be interlocutory, since the final order concerning the Shiffman subpoena will address any privilege claims, as well as the production of any documents determined either not to be privilege, or pursuant to State Farm, to be required to be produced.

It also it is important for all deadlines to be strictly construed and met in order stay on schedule for the taking of Mr. Shiffman's deposition in the timeframe identified in the new Scheduling Order by the District Court.

Hence, any failure to strictly comply with the process identified and the deadlines imposed may result in the imposition of sanctions for failure to comply.

DONE and ORDERED this 29th day of April, 2019.