Can a Motion in Limine Be Effective to Challenge ESI Redactions?
In Goldenson, et al., v. Steffens, et al., No. 2:10-cv-00440-JAW (D. Me. July 7, 2014), a motion in limine was used to challenge redactions to email chains after discovery was closed.
As background, Plaintiffs Daniel and Suzanne Goldenson alleged John L. Steffens, Gregory Ho, and various other defendants engaged in fraud, breaches of fiduciary duties, and intentional inflection of emotion distress. Plaintiffs alleged Defendants sold them on the “Ascot Fund” while concealing that it was nothing more than a feeder to Bernard Madoff’s Ponzi scheme.
Plaintiffs identified sixteen email chains, produced by Defendants in response to ESI discovery requests with certain names and information redacted. Plaintiffs requested an in camera review and for the court to compel the Defendants to tender the production without any redactions.
1. They would be prejudiced by the redactions because they make it difficult to understand who sent them;
2. The court in its summary judgment order already expressed some confusion regarding the identities of the correspondents in one of the redacted emails; and
3. It is unfair to allow Defendants to testify as to what they told their investors about Ascot and Madoff because the redactions made it impossible for Plaintiffs to identify themselves witnesses who would testify to the contrary.
While the court ultimately found that the motion was a “discovery motion in the guise of a motion in limine,” its basis for denying the motion was based on the following –
1. “Although…the [third-party] investors’ identities were arguably relevant, the probative value of the disclosure of their identities was too attenuated to outweigh the invasion of their privacy interests…or the court’s trial management concerns.”
2. Prejudice to Plaintiffs will be minimal, as they will have the opportunity to question Defendants on the witness stand to establish precisely that necessary context.
3. This issue should have been brought to the attention of the court in a timely manner, which would have been two years ago, when the case was still in its discovery stage.