Opinion
Criminal No. 10-185.
July 18, 2011
ORDER
On or about March 22, 2011, Defendant served essentially identical subpoenas on Key Environmental, Inc. and Field and Technical Services LLC seeking 33 separate categories of documents. On March 29, 2011, Key Environmental and Field and Technical Services moved to quash these subpoenas pursuant to Federal Rule of Criminal Procedure 17(c)(2), primarily on grounds that they were unduly burdensome, unreasonable, and oppressive. (Doc. No. 36). In connection with their motion, Key Environmental and Field and Technical Services submitted detailed, itemized estimates as to the costs they would incur in searching for and preparing the large quantity of documents sought by Defendant. They stated that these costs would exceed $100,000, and could exceed $200,000.
A hearing on this motion was held on May 3, 2011. At that hearing, the Court held that, having reviewed the broad and extensive requests contained in Defendant's subpoenas, it agreed that compliance would be unduly burdensome, and that the subpoenas were unreasonable and oppressive. However, in lieu of quashing the subpoenas, the Court permitted Defendant to request the documents on the condition that he incur the costs associated with complying with his requests, relying on In re: Grand Jury Investigation, 459 F. Supp. 1335 (E.D. Pa. 1978) and Standard Chlorine of Delaware, Inc. v. Sinibaldi, 821 F. Supp. 232 (D. Del. 1992). The Court indicated that requiring Defendant to bear the cost of compliance was particularly appropriate in light of the fact that his very broadly-worded subpoenas seemed much more like a fishing expedition in which he hoped to find useful information than an attempt to obtain evidentiary material, and in light of the fact that the Government had already provided Defendant with access to all information it has regarding this case.
Accordingly, the Court held that if Defendant sought to investigate the case further, he should bear the expense of doing so, not the alleged victims. The Court therefore conditioned compliance on Defendant's payment of the costs of such compliance. The Court set forth the following procedure that the parties were to follow. First, Defendant was ordered to indicate to Key Environmental and Field and Technical Services the requests to which he wanted them to comply. Next, Key Environmental and Field and Technical Services were to provide him with a good faith estimate of the costs of compliance. Finally, Defendant was to then notify the Court and pay this amount, as ordered by the Court, into a government account that would be held in escrow until the Court ordered the funds to be released to Key Environmental and/or Field and Technical Services. The Court further ordered that if there were any specific objections to any requests, the parties should notify the Court immediately.
Subsequently, on June 22, 2011, Key Environmental and Field and Technical Services filed a motion to enforce the Court's May 3 order. (Doc. No. 60). The motion indicated that they had, pursuant to the Court's order, provided a good faith estimate of the costs of complying with Defendant's modified document requests in the amount of $226,565.00. They asserted, however, that Defendant rejected the cost estimate and indicated that he was willing to pay the amount of $10,868.25. They requested that the Court enforce its May 3 order by requiring Defendant to pay the appropriate costs for production of the records sought or, alternatively, not receive the records if he is unwilling to pay. Defendant filed a response (Doc. No. 61), essentially contesting the reasonableness of the estimate provided by Key Environmental and Field and Technical Services.
The circumstances of this case, including the number of documents at issue, the technical issues involved, and the limited time resources of the Court, which is currently conducting a lengthy criminal trial, compel the appointment of a Special Master. Therefore, the Court intends to appoint David R. Cohen, Esquire, of Reed Smith LLP, 225 Fifth Avenue, Pittsburgh, PA 15222, to serve as Special Master. The Special Master will review Defendant's requests for documents and/or records from Key Environmental and Field and Technical Services as well as the estimate of the costs of compliance submitted by Key Environmental and Field and Technical Services and will submit a Report and Recommendation to the Court as to the reasonableness of those cost estimates. The Court emphasizes, however, that whatever the ultimate cost of compliance is, that cost will be borne by Defendant if he wishes to receive the requested material. The Special Master shall be paid at the rate of $350 per hour for services performed. One-half of the cost shall be borne by Defendant and one-half of the cost shall be borne by Key Environmental and Field and Technical Services.
Therefore, this 18th day of July, 2011, IT IS HEREBY ORDERED that counsel for Defendant and counsel for Key Environmental and Field and Technical Services shall file their objections, if any, to the appointment of David R. Cohen, Esquire, as Special Master, by July 25, 2011. ReedSmith Our people David R. Cohen Partner Pittsburgh drcohen@reedsmith.com Vcard Records Management and E-Discovery Delta Financial Corp. v. Morrison Technology and Intellectual Property Litigation Insurance Coverage Litigation Other Complex Litigation Publications Practical Law InsideCounsel e-Discovery BizTechMagazine.com The Litigation Manual: First Supplement Speeches / Presentations Experience Legal Education Undergraduate Education Professional Admissions / Qualifications Court Admissions Professional Affiliations
Print page ¦ Close window The business of relationships T: +1 412 288 1098 (Pittsburgh) F: +1 412 288 3063 (Pittsburgh) E: David has more than 25 years of commercial litigation experience in a variety of subject matters. He serves as discovery counsel in many cases, represents companies in complex litigation matters and also counsels clients on records management and litigation readiness issues. He has been involved in setting up the E-Discovery Special Masters program in the U.S. District Court for the Western District of Pennsylvania, and he has been approved by the Court to serve as an E-Discovery Special Master in that jurisdiction. David has authored numerous legal publications and is a frequent presenter at continuing legal education seminars regarding e-discovery, technology and litigation tactics. David's representative matters include: • Serve as special e-discovery counsel in commercial litigation, including briefing and argument that led to the cost-shifting opinion in , NY Sup. Ct. Aug 17, 2006). • Counsel to several Fortune 500 companies and a number of smaller companies on record management and e-discovery readiness issues. • Present training programs for company personnel with regard to records management, e-mail sensitivity, and e-discovery readiness. • Develop and supervise both hard copy and electronic record collection and review projects in complex litigation matters. • Litigation counsel to companies prosecuting and defending patent infringement and other intellectual property claims in several fields, including power converters, Internet systems, aircraft radar, the design of road safety devices and industrial manufacturing, including jury and non-jury trial, Markman hearing and Federal Circuit appellate argument experience. • Litigation counsel to Fortune 500 Companies pursuing insurance coverage for toxic tort, environmental and technology-related liabilities, including jury and non-jury trial experience. • Litigation counsel to property owners in Pennsylvania, including utilities, manufacturers, retailers, warehouses, entertainment facilities and other properties in real estate tax, exemption and other litigation, including trials and appeals. • Participated in national defense of several corporations named as defendants in mass toxic tort litigation, including asbestos and tobacco cases. • Litigation counsel to non-profit organization in defense of antitrust and wrongful termination claims by former employees, including jury trial. • Litigation counsel to defendants in putative class action litigation. • Defended and prosecuted claims alleging minority shareholder oppression, self- dealing, and fraud in closely-held corporations, including trial experience. • "Choosing Outside E-discovery Service Providers," , May 25, 2011 • "Mastering the E-Beast," , March 28, 2011 • "E-Discovery Collection and Processing," co-authored with Lynn M. Reilly, a chapter in , published by the Pennsylvania Bar Institute, November 2008 • "Avoiding E-Discovery Pitfalls," , March 2008 • "Writing Winning Briefs," a chapter in , published by the American Bar Association, 2007 • "What General Counsel Need to Know About New E-Discovery Best Practices — Including Your IT Team, Understanding the Impact of Social Media Reducing Costs in 2011," ExecSense Live Webinar, May 19, 2011 • "Halfway There: Beyond the Basics of Electronic Data Discovery," Pennsylvania Bar Institute, March 22, 2011 (Pittsburgh) • "Is Your Head in the Clouds? Best Policies, Practices, and Risk Management for Cloud Computing and ASP Services," The Knowledge Congress Live Webcast, March 15, 2011 • "Western District of PA E-Discovery Special Master Program Podcast," ESIBytes Podcast, December 15, 2010 • "Answering the Most Current and the Most Common E-Discovery Questions — The FBA E-Discovery Series," The Federal Bar Association, Western Pennsylvania Chapter, December 9, 2010 (Pittsburgh) • "Litigation Considerations — Facebook, Twitter and Blogging: Oh My Space!" Pennsylvania Bar Institute, December 6, 2010 (Pittsburgh) • "Electronically Stored Information," Presenter with Magistrate Judges Facciola and Grimm and other panelists, George Mason University JEP, 6th Annual Meeting of American College of Business Court Judges, December 1-3, 2010 (Fairfax, VA) • "The Best Tips and Techniques for General Counsel to Reduce Litigation Costs and Increase Likelihood of Success," ExecSense Live Webinar, November 23, 2010 • "Ethical Challenges on E-Discovery," and "Effective Use of ESI — Depositions, Headings and Trials," Panelist, Thomson Reuters EDRR Conference, November 4-5 (Chicago) • "Ethical Challenges on E-Discovery," Thomson Reuters EDRR Conference, October 13-14, 2010 (New York) • "Achieving Litigation Readiness and Developing an E-Discovery Response Plan," Masters Conference, October 4, 2010 (Washington, DC) • "E-Discovery Tips, Tricks and Strategies for Insurance Lawyers-How to Use Electronically Stored Information (ESI) to Help Your Clients Win Their Next Insurance Dispute Avoid Common E-Discovery Pitfalls in Insurance Litigation," ExecSense Live Webinar, August 6, 2010 • Co-moderator, "Executive Cost and Risk Containment Steps," Executive Counsel Institute E-Discovery for the Corporate Market, August 2-3, 2010 (Chicago) • "E-Discovery Special Masters — Why Do We Need Them?," Federal Bar Association Western Pennsylvania Chapter E-Discovery Series, July 22, 2010 (Pittsburgh) • "E-Discovery Update 2010: New Challenges and New Cost Reduction Opportunities," Corporate Executive Board, General Counsel Roundtable Webinar, May 4, 2010 • "eDiscovery: Achieving Litigation Readiness While Cutting Costs Improving Outcomes," IQPC 9th eDiscovery Conference," April 26-28, 2010 (San Francisco) • "E-Discovery Unleashed" and "Achieving Business Efficiencies, Cost Savings and Risk Reduction Through Better Information Management and Litigation Readiness," Computer Forensics Show, April 19, 2010 (New York) • "In-House Counsel Depositions: Navigating Complex Privilege Issues," Panelist, Teleconference/Webinar, Strafford Legal Teleconference Presentations, February 23, 2010 • "Legal Ethics and E-Discovery," (Live WebCast,) The Knowledge Congress, February 17, 2010 • "E-Discovery Drill Down: First hand insight on driving more efficiency, cost-value and priorities in electronic e-discovery initiatives," Information Week Virtual Event, February 10, 2010 • "Taming the e-Discovery Beast: Proactive Measures to Slash Costs and Reduce Risks," Thompson Interactive Audio Conference, January 20, 2010 • Discovery in Enterprise Clouds: Electronic Discovery Meets Cloud Computing," Presenter, International Law Discovery Disclosure Group, February 2, 2010 (New York) • "E-Discovery Best Practices and Compliance Guidelines," Center for Competitive Management ("CCM") National Web Audio Conference, January 14, 2010 2011 Reed Smith 1983 K L Gates 1983 J.D., cum laude, Harvard Law School 1980 B.A., summa cum laude, Kenyon College • Pennsylvania • All State and Federal Courts — Pennsylvania • U.S. Court of Appeals — Federal Circuit • U.S. Court of Appeals — Fifth Circuit • U.S. Court of Appeals — Third Circuit • U.S. District Court — Western District of Michigan • U.S. District Court — Western District of Pennsylvania • Georgetown University Law Center, Advanced E-discovery Institute — Advisory Board • ABA TECHSHOW — Advisory Board • Strafford Publications, Inc. — Editorial Advisory Board for Litigation Conferences • Allegheny County Bar Association — past Chair of Technology Utilization Committee • Pennsylvania Bar Association (past Litigation Council Member) • American Bar Association (past Chair of Litigation Technologies Subcommittee of Litigation Section) • Temple Emanuel of South Hills (SEF Chair and Past President) • Legal Aid Society of Pittsburgh (past member of Board of Directors, 1988-1997) • Harvard Law School Association of Western Pennsylvania (past President) • Kenyon College Alumni Association, Pittsburgh Region (past President) Attorney Advertising. 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