Allstate Insurance Company v. Zapp

Filing 69

DECISION AND ORDER a telephone conference is scheduled for 9/7/2016 at 11:00 AM before Magistrate Judge Daniel J. Stewart to discuss the deadlines for discovery and the filing of dispositive motions. Signed by Magistrate Judge Daniel J. Stewart on 8/15/16. (Attachments: # 1 Exhibit)(sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ALLSTATE INSURANCE COMPANY,
Plaintiff,
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Civ. No. 1:15-CV-127
(FJS/DJS)

WARREN ZAPP,
Defendant.

APPEARANCES:

OF COUNSEL:

SEYFARTH, SHAW LAW FIRM
Attorney for Plaintiff
131 South Dearborn Street
Chicago, IL 60603

KRISTINE R. ARGENTINE, ESQ.

WARREN ZAPP
Defendant, Pro Se
16 Mia Way
Porter Corners, N.Y. 12859
DANIEL J. STEWART
United States Magistrate Judge
DECISION and ORDER
On November 18, 2015, this Court issued a Decision and Order regarding
discovery of electronic data. Dkt. No 51, Dec. & Order. Pursuant to that Decision and
Order the Plaintiff was authorized to conduct a forensic review of the Defendant’s work
computer and email. As part of the authorization, the Court noted that:
[T]he searches to be conducted on the data must be limited to both the time

period and scope that the Court has previously identified. In particular, the
information must relate to solicitations or communications with individuals
who were former Allstate customers serviced by Zapp prior to November
1, 2012, and who were contacted anytime from that date until November
1, 2014.
Id. at p. 14.
The electronic discovery process has not proceeded as anticipated by the Court.
Initially, the Plaintiff submitted to the Court a proposed protocol for the forensic review,
which was to be performed by Innovative Discovery, LLC. That protocol was signed
by the Court on December 4, 2015. Dkt. No. 56. For his part, the Defendant made
arrangements with Plaintiff’s expert to enable access to his work computer, and also to
provide the necessary information and passwords for access into the relevant email
account: [e-mail]. The Computer was accessed on December 8,
2015, and what was anticipated to be a short process of obtaining a mirror image of the
hard drive, turned into a multi-day effort, with the computer hard drive being taken from
Zapp’s office and transported to Maryland. See Dkt. No. 57. On December 18, 2015,
I directed that the hard drive be immediately returned to Defendant Zapp. Dkt. No. 59,
Text Order.
With regard to the subject email account, it appears that Plaintiff’s expert was
able to access the account and obtain a significant amount of data pursuant to the search
protocols that had been authorized by the Court. It is now clear, however, that the

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search terms were overly expansive and resulted in an excessive amount of captured
data. See Dkt. No. 64-2, Email, dated Jan. 18, 2016. The Court’s previous Order noted
that the search terms provided will seek out information regarding former Allstate
customers that may have been solicited by the Defendant, and also may indicate the date
on which that solicitation, if any, occurred. Dkt. No 51, Dec. & Order, at p. 12. The
search protocol identified twenty-eight names: Evans; Pratt; Bellon; Barry; Bestle;
Root; Fobare; Rozewicz; Sheehan; Patrone; Kailas; Mccullough; Schlafer; Remmel;
Posporelis; Livoti; Sebast; Fullan; Ostrander; Cinquanti; Nurminen; Peters; Tyrell;
Monnat; Clayton; Brown; Montilla and Ramsey. See Dkt. No. 49-1. However, the
actual data production, after the implementation of the search terms, consisted of
approximately 4,000 emails, the vast majority of which were not within the scope of
discovery that the Court previously set forth and do not relate to former Allstate
customers.
The Defendant has objected to the disclosure of a significant part of the captured
electronic discovery. See Dkt. Nos 66 and 68. At the Court’s directive, See Text Order
dated April 26, 2016, Defendant Zapp provided to the Court a privilege and objection
log, together with copies of all the disputed emails.
The Court has now proceeded through the time-consuming process of reviewing
each of the three thousand six hundred and seventy-four (3,674) disputed emails. The
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Court agrees with Mr. Zapp that, with twenty-four exceptions, the disputed emails are
outside the scope of discovery outlined in the November 18, 2015 Order. In particular,
I find that the email 1319_AVZ00001498_native.pdf, is a communication between Mr.
Zapp and legal counsel, and is both privileged and irrelevant. I also find that the
remaining emails, with the exception of the twenty-four identified in the attached
Appendix, are also not relevant to the litigation and fall outside the parameters of the
Court’s previous Order. The Court has printed out hard copies of the twenty-four
emails, or email chains, which should be disclosed as potentially relevant to the case,
and they are to be picked up from Chambers by Plaintiff’s counsel, and she is to provide
a complete copy directly to Defendant Zapp. It should be noted that there is one email
(listed in the printed materials as #25-#3443_AVZ00003831_native.pdf, Sebast) that
was not contained in the electronic data provided to the Court and therefore could not
be reviewed. The Court would request that Mr. Zapp, or the expert, provide that single
email to the Court for in camera review so that I can consider whether it should be
disclosed.
Discovery in this matter was stayed pending the Court’s review of the disputed
emails. See Dkt. No. 67, Text Order dated April 26, 2016. That review is now
complete. Accordingly, a telephone conference is scheduled for September 7, 2016, at
11:00 a.m., to discuss the deadlines for discovery and the filing of dispositive motions.
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IT IS SO ORDERED.
Date: August 15, 2016
Albany, New York

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