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Doug Austin

Here’s Why Whether Apple Provides a Backdoor to iPhones May Not Matter: Data Privacy Trends

Last week, we covered the government’s latest attempt (and Apple’s resistance) to get Apple to assist in unlocking the iPhones of a mass shooter – this time, with regard to password-protected iPhones used by Mohammed Saeed Alshamrani, who is suspected of killing three people last month in a shooting at a Navy base in Pensacola, Florida.  Ultimately, however, it may not matter whether Apple helps the government or not.

According to Business Insider (The Justice Department is demanding that Apple make it easier to unlock suspects’ iPhones, but experts say it can do that without Apple’s cooperation. Here’s how., written by Aaron Holmes), according to cybersecurity experts, new technologies have made it even easier for investigators to crack locked iPhones, even without help from Apple.

Last week, Attorney General William Barr said during a press conference on Monday that Apple had not helped the FBI crack into the password-protected iPhones used by Alshamrani.

“We have asked Apple for their help in unlocking the shooter’s iPhones. So far Apple has not given us any substantive assistance,” Barr said, next to a poster with a picture of the iPhones. “This situation perfectly illustrates why it is critical that investigators be able to get access to digital evidence once they have obtained a court order based on probable cause.”

For their part, Apple disputed Barr’s assessment that it has failed to provide law enforcement with “substantive assistance” in unlocking the password-protected iPhones used by the shooting suspect at a Navy base in Pensacola, Florida, last month, but still refused his main request to provide a backdoor.  Apple stated it “produced a wide variety of information associated with the investigation” after the FBI’s initial request on Dec. 6. The company said it provided “gigabytes of information” including “iCloud backups, account information and transactional data for multiple accounts” in response to further requests that month.

“We have always maintained there is no such thing as a backdoor just for the good guys,” Apple said in a statement. “Backdoors can also be exploited by those who threaten our national security and the data security of our customers. Today, law enforcement has access to more data than ever before in history, so Americans do not have to choose between weakening encryption and solving investigations. We feel strongly encryption is vital to protecting our country and our users’ data.”

In an interview with Business Insider, Chris Howell, CTO of Wickr said he understood why Apple wouldn’t intentionally build a backdoor into the iPhone as the FBI has requested.

“As a technologist I can tell you that there is no security mechanism that can discriminate between a hacker trying to crack it and a law enforcement officer trying to do the same thing. Either we secure it or we don’t, it’s that simple.”

However, according to The Wall Street Journal, the cybersecurity company Grayshift sells an iPhone hacking device for $15,000, and Israel’s Cellebrite sells a similar device.  Tech companies are constantly trying to develop more secure devices and platforms to win costumers’ trust, and are therefore reticent to build backdoors that would easily crack encrypted services. Similarly, companies like Grayshift and Cellebrite are constantly honing methods of cracking devices, which are kept secret.

The iPhone was long seen as uncrackable, but recent advances have changed that — one county in Georgia that purchased a Grayshift device was able to crack 300 phones in one year, The Wall Street Journal reported.

One commenter to our post last week stated “if I was a terrorist I’d throw away my iPhoneX and get an iPhone 11”.  Staying ahead of crackers and hackers seems to be a continual battle that device managers and website providers face daily.  And, if we think this issue only applies to discovery of devices in cases involving mass shooters, it could easily apply to discovery in any type of case today where a custodian of a device has something to hide.  Like this Fifth Amendment case that we covered last year and will discuss in our webcast on January 29.

So, what do you think?  Should companies like Apple and Facebook provide backdoor access to their encrypted technology to investigators?  Or are there bigger privacy concerns at play here?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Sedona Conference Has an Updated Commentary on Rule 45 Subpoenas to Non-Parties: eDiscovery Best Practices

So many stories, so little time.  Been meaning to cover this for a few days now.  Last week, The Sedona Conference® (TSC) and its Working Group 1 on Electronic Document Retention & Production (WG1) announced the publication of the Public Comment Version of The Sedona Conference Commentary on Rule 45 Subpoenas to Non-Parties, Second Edition.

In 2008, TSC published its first edition of this Commentary, then titled Commentary on Non-Party Production & Rule 45 Subpoenas.  That was 12 years ago!  Even our blog didn’t exist back then.  As you can imagine, much has changed since then, including:

  • Federal Rule of Civil Procedure 45 was substantially revised in 2013;
  • the 2015 amendments to the Federal Rules of Civil Procedure, while not further revising Rule 45 directly, significantly affect non-party practice;
  • Federal Rule of Evidence 502 was enacted in 2008 (subsequent to the publication of the first edition of this Commentary);
  • The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production was published in 2017 (we covered it here); and
  • the rise in cloud computing has placed large amounts of party data in the hands of non-parties, leading to increased use of Rule 45 subpoenas. That in turn has led to a significant growth in the case law under Rule 45 since the first edition. Here are a few examples we’ve covered in the past couple of years: Williams v. Angie’s List, Ronnie Van Zant, Inc. v. Pyle, Apex Colors, Inc. v. Chemworld Int’l Ltd., Inc., Shenwick v. Twitter, Inc., Fair v. Commc’ns Unlimited Inc., Shamrock-Shamrock, Inc. v. Remark.

There are essentially five parts in the 49-page (PDF) Commentary (after the Introduction, Part I).  Part II covers Rule Changes and Their Impact on Non-Party Discovery.  Part III covers The Possession, Custody, and Control Framework and Its Impact on Rule 45 Obligations (which has factored in several of the cases listed above).  Part IV discusses Preservation obligations, prior to and after receipt of a subpoena and remedies for spoliation.  Part V discusses Rule 45(d) Costs, Sanctions, and Motion Practice.  And, Part VI discusses Rule 45 Practice Pointers.   There are no Appendices.

You can download a copy of the Commentary here (login required, which is free).  The Commentary is open for public comment through March 6, 2020. Questions and comments on the Commentary are welcome and may be sent to comments@sedonaconference.org.  In particular, please share your comments on Section III’s discussion of viewing non-party subpoenas through the lens of “possession, custody or control” principles as well as Section VI’s sixteen Practice Pointers. The drafting team will carefully consider all comments received, and determine what edits are appropriate for the final version.

TSC has been busy!  We’ll cover another publication that was just released a few days ago early next week.

So, what do you think?  How does your organization address subpoenas of non-parties in litigation today?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Apple Battling with the Government Again Over Breaking iPhone Encryption of Mass Shooters: Data Privacy Trends

Remember back in 2016 when Apple with in a court battle with the Department of Justice over giving investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters?  That was back in 2016 and we covered it here, here and here – that situation was resolved when the DOJ indicated that the FBI was able to retrieve the data with help from an “unnamed third party”.  Now, Apple is in a new dispute with the government again over the same issue.

According to CNBC (Attorney General William Barr says Apple is not helping unlock iPhones used by alleged Pensacola shooter, written by Kif Leswing), Attorney General William Barr said during a press conference on Monday that Apple had not helped the FBI crack into password-protected iPhones used by Mohammed Saeed Alshamrani, who is suspected of killing three people last month in a shooting at a Navy base in Pensacola, Florida.

“We have asked Apple for their help in unlocking the shooter’s iPhones. So far Apple has not given us any substantive assistance,” Barr said, next to a poster with a picture of the iPhones. “This situation perfectly illustrates why it is critical that investigators be able to get access to digital evidence once they have obtained a court order based on probable cause.”

“We call on Apple and other technology companies to help us find a solution so that we can better protect the lives of Americans and prevent future attacks,” he said. Barr has also clashed with Facebook over encrypted messages, which he called “data-in-motion” on Monday.

The comments highlight law enforcement’s frustration with encryption technologies that protect data so that neither Apple nor law enforcement can easily read it.  They also preview future clashes between technology companies and governments over whether to build “back doors” that would allow law enforcement elevated access to private data to solve crimes like terrorism.

On Tuesday (as covered by CNBC here), Apple disputed Barr’s assessment that it has failed to provide law enforcement with “substantive assistance” in unlocking the password-protected iPhones used by the shooting suspect at a Navy base in Pensacola, Florida, last month, but still refused his main request to provide a backdoor.

Apple said it “produced a wide variety of information associated with the investigation” after the FBI’s initial request on Dec. 6. The company said it provided “gigabytes of information” including “iCloud backups, account information and transactional data for multiple accounts” in response to further requests that month.

“We have always maintained there is no such thing as a backdoor just for the good guys,” Apple said in its latest statement. “Backdoors can also be exploited by those who threaten our national security and the data security of our customers. Today, law enforcement has access to more data than ever before in history, so Americans do not have to choose between weakening encryption and solving investigations. We feel strongly encryption is vital to protecting our country and our users’ data.”

Apple made a similar point at a congressional hearing in December as senators threatened regulation if tech companies could not figure out a way to work with law enforcement to legally access encrypted devices and messages. A Facebook representative also attended the hearing, defending the company’s plans to make its entire private messaging system end-to-end encryption, which law enforcement fear will make it harder for them to track down instances of child exploitation, as they do now.

I expected we would see another dispute between Apple (or other provider) and the government, along the lines of the San Bernardino shooter case – surprised it took this long.  Maybe it’s time for the AG’s office to solicit the assistance of an “unnamed third party”… ;o)

So, what do you think?  Should companies like Apple and Facebook provide backdoor access to their encrypted technology to investigators?  Or are there bigger privacy concerns at play here?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Is This the Winter of Our eDiscovery Business Confidence Discontent?: eDiscovery Trends

It’s that time again!  I’m here to cover the results of the Winter 2020 eDiscovery Business Confidence Survey, published (as always) on Rob Robinson’s terrific Complex Discovery site.  So, how confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  As I’ve done for a couple of years now, I will provide some analysis and I’m continuing to take a look at all surveys conducted to look at trends over time.  So, this time, I will look at the results for all seventeen surveys to date, from January 2016 to present.  I’m also continuing to look at some of the numbers compared to their averages over all seventeen surveys as additional historical comparison.  And, I’ve changed up the bar charts to hopefully be easier to gauge historical numbers.

The winter 2020 survey response period was initiated on December 28, 2019 and continued until the registration of 146 responses this past Saturday.  Another high number of participants, thanks in part to support and promotion from both EDRM and ACEDS.

Software and/or Services Provider and Law Firms Still One-Two: As usual, Software and/or Services Provider respondents was the top group with 39.0% of all respondents, the highest percentage since Summer 2018 and about two percent higher than average for the seventeen surveys (36.9% average over that time).  Law Firm respondents were once again second at 30.8% of all respondents (slightly above the lifetime average of 30.4%).  Consultancy rose one spot to third at 13.0% (well below than the 17.8% lifetime average).  And Corporation respondents were fourth at 8.9%, higher than the lifetime average of 7.4%, but more a five percent drop from last survey. If you count law firms as providers (they’re technically both providers and consumers), providers account for 82.8% of total respondents, the least diverse survey since Fall 2018.  Here’s a graphical representation of the trend over the seventeen surveys to date:

So, how confident is another large group of respondents in eDiscovery business confidence?  See below.

Exactly Half of Respondents Consider Business to Be Good: This quarter, we saw a 1.3 point rise to 50% of respondents that considered business to be good, the lowest Winter number since 2017.  It’s also below the average of all surveys (54.1%) by 4.1%.  41.1% of respondents consider business to be normal, which is above the lifetime average of 38.5%.  And 8.9% of respondents rated business conditions as bad, which is the highest percentage since last Winter and 1.5 points above the lifetime average of 7.4%.  Just about every Winter shows a jump in “bad” votes, for some reason.  So, why is Winter a more pessimistic time of year?  Hmmm…  Here is the trend over the seventeen surveys to date:

So, how good do respondents expect business to be in six months?  See below.

A Majority of Respondents Once Again Expect Business to be the Same Six Months From Now: While most respondents (87.3%) expect business conditions will be in their segment to be the same or better six months from now, the percentage of those expecting business to be better was only 43.8%, while those expecting business to be the same was 53.4%. Those expecting worse business conditions dropped to 2.7%.   However, less than half of respondents also expected the same on revenues (only 44.5% for Same, with 51.4% for Higher), yet more than half of respondents expected the same on profits – 54.1% respectively.  So, it appears that respondents expect to make more, but not necessarily net more.  Capisce?  The percentage of respondents expecting higher profits did rise from the last survey another 2.3 points to 35.6%, but that’s still the second lowest Winter number ever and is 4.7% lower than the lifetime average.  Here is the profits trend over the seventeen surveys to date:

Will profits continue to be a damper on revenue projections in the future?  We’ll see.

Type This!  Increasing Types of Data Considered to Be Most Impactful to eDiscovery Business: Increasing Types of Data was the top factor for the third time ever at 25.3%, which was considerably higher than the lifetime survey average of 17.0%. Budgetary Constraints dropped one spot at 23.3% (half a percent lower than the 23.8% lifetime average).  Increasing Volumes of Data fell back to third at 18.5%, nearly 5 percent lower than the lifetime average of 23.3%.  Lack of Personnel was fourth at 13.0% (which is its lifetime average), Data Security was fifth at 12.3% (lifetime average 14.2%) and Inadequate Technology (once again) brought up the rear at 7.5% (even lower than its puny average of 8.7%).  Most everybody seems to be happy with their technology, or at least it’s not their biggest challenge.  The graph below illustrates the distribution over the seventeen surveys to date:

Budgetary Constraints, Increasing Volumes of Data, and Increasing Types of Data continue to consistently be the top three factors quarter after quarter with Increasing Types definitely trending up over the past several surveys.

Distribution of Respondents is Once Again Reasonably Even: Broken record time!  Operational Management respondents were once again the top group at 34.2% (2.2 points over the lifetime average of 32%) and Tactical Execution respondents were second at 33.6% (still 5.4 points over the lifetime average of 28.2%) and Executive Leadership respondents were last again at 32.1%, another 2.1 percent higher than last quarter (but 7.7 points lower than the lifetime average).  Here’s the breakdown over the seventeen surveys to date:

Clearly, we’ve shown that larger overall respondent groups (around 140 or more) leads to a much more even distribution than the earlier surveys where Executive Leadership respondents were consistently the largest group.

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check them out.

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Orders Defendants to Produce All ESI in Native Format: eDiscovery Case Law

In Kamuda et al. v. Sterigenics U.S., LLC et al., No. 18 L 10475 (Ill. Cir. Jan. 6, 2020), Circuit Court Judge Christopher E. Lawler ruled that “[u]nder Illinois Supreme Court Rules 201(b)(4) and 214(b), the parties should produce all ESI in the respective native formats”, agreeing that Rule 214 entitles Plaintiffs to their requested ESI format and rejecting the defendants’ offered compromise to produce some of the ESI in native format, but not all.

Case Background

In this case, the parties disputed whether the parties should produce electronic discovery materials in the “native” formats requested by the plaintiffs or the “TIFF+” formats proposed by the defendants.  The plaintiffs argue the TIFF+ format would impose unreasonable costs and create unnecessary challenges to potential witnesses and deponents. In their reply brief, the plaintiffs also contended that as the party requesting discovery, Illinois Rule 214 entitled them to their preferred ESI format.  Rule 214(b) reads as follows:

“With regard to electronically stored information as defined in Rule 201(b)(4), if a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”

The defendants requested to produce ESI in the TIFF+ format, arguing that TIFF+ is not unreasonably expensive, represents the standard practice in electronic discovery matters, and best serves cybersecurity interests.  However, the defendants offered a compromise, proposing the parties would produce Microsoft Excel spreadsheets, PowerPoint presentations, and Word documents with tracked changes and comments in the respective native formats. All other materials, including emails, would be in the TIFF+ format.

In December 2019, the parties submitted written briefs in preparation for a case management conference. And, on December 18, the Court heard oral arguments. In support of Plaintiffs’ position, a retained consultant testified and provided a PowerPoint presentation. The defendants submitted a written response to the consultant’s presentation on December 27 and the plaintiffs submitted a written reply on January 3.

Judge’s Ruling

Judge Lawler stated: “Since December 18, the Court has considered the parties’ arguments and submitted materials. After careful review, the Court appreciates Defendants’ offer to compromise and resolve the ESI issue this early in the proceedings. Yet the parties disagree. And ‘[a]bsent agreement, ESI must be produced as ordinarily maintained or in a form reasonably usable to the requesting party.’ The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 SEDONA CONF. J. pp. 171-72, Comment 12.b.”

Going further, Judge Lawler stated: “In addition, the Court agrees that Rule 214 entitles Plaintiffs to their requested ESI format…Plaintiffs specifically request the native format, which the Court has no reason to doubt is reasonably usable. The parties must therefore produce all ESI, including emails, in the respective native format.”

While ruling for the plaintiffs, Judge Lawler did also state: “That said, the Court recognizes the parties’ concerns about cybersecurity, minimizing costs, and eliminating unnecessary delays. The Court is therefore willing to revisit this decision if reasonable needs arise. Parties may show such reasonable needs by affidavits from their vendors or consultants.”

Here’s a new post by Craig Ball regarding plaintiffs and production formats that he just posted yesterday – hat tip to him for making me aware of this case.  After all, he was the retained consultant!  ;o)

So, what do you think?  Should courts always grant native productions if the requesting parties timely request that format?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Be a Gator for a Day in March and Learn About InfoGov in Houston This Month!: eDiscovery Trends

A two-topic day for us with a couple of terrific educational opportunities!  One free CLE educational program in Houston comes up in just ten days!  And, the other happens in Florida and currently has early bird pricing available for a wonderful full day conference in March!

ACEDS Houston Event

Our first event of the year in the Houston chapter of the Association of Certified E-Discovery Specialists (ACEDS) is on Thursday, January 23rd from noon to 1:30pm CT at The Houston Club at 910 Louisiana Street, Suite 4900, Houston, TX 77002. Todd Brown and Lisa Cromwell of Access Sciences will be presenting Information Governance Essentials on that day.

This CLE educational* program will help you understand what Information Governance is and learn practical tips and best practices on applying Information Governance essentials to your Firm and Corporate practice, including a holistic approach to InfoGov and a 7-point InfoGov model!  With data in the world doubling every 1.2 years and data privacy considerations becoming vital due to the General Data Protection Regulation (GDPR) and California Consumer Privacy Act (CCPA), Information Governance has become more important than ever, so join us on the 23rd!  You can register here through January 22.

University of Florida E-Discovery Conference

Believe it or not, this is the eighth year for the University of Florida E-Discovery Conference.  As usual, the panel of speakers is an absolute who’s who in eDiscovery (be a gator, get it?).  And, if you act quickly you can save big to attend!

The annual one-day conference will be held this year on Thursday, March 19th from 8:00am to 5:40pm ET.  This year, the focus is to show you how to work smarter, not harder to ensure the success of your project.  As you can always expect from the U-Fla conference, there are a veritable plethora of experts, including Craig Ball, George Socha, Tom O’Connor, Scott Milner, Kelly Twigger, Tessa Jacobs, David Horrigan, Canaan Himmelbaum, Suzanne Clark, Julie Brown, Mike Quartararo, and Ian Campbell.  And, a bunch of distinguished federal and state judges, including U.S. Magistrate Judges William Matthewman, Mac McCoy, Patricia Barksdale, and Gary Jones.  And, I’m honored to be participating for the third straight year as one of the presenters.  Do you like Jeopardy?  If so, you’ll want to catch our session – I’m going to be one of the “contestants” in “E-Discovery Jeopardy”.  Hopefully, I won’t be singing this song afterward!  ;o)

I’ll have more details on this conference as we get closer, but U-Fla is once again offering an “Early Bird Special” for the next week.  You can attend this day long conference packed with practical advice, experts, hot topics, and FL CLE for only $49 livestream or $69 in person!  After that, the price will go up to $99 for live streaming and $199 in person (still a bargain, but you can get it even cheaper if you act quickly).  Last year, the in-person slots were sold out, so that is another reason to act quickly.  You can register here for the conference.  Hope to see you there!

So, what do you think?  Are you looking for good eDiscovery education?  If so, consider checking these out!  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2019 eDiscovery Case Law Year in Review, Part 4

As we noted the last three days, eDiscovery Daily published 66 posts related to eDiscovery case decisions and activities over the past year, covering 56 unique cases!  Yesterday, we looked back at cases related to disputes regarding proportionality vs. relevancy vs. privacy.  Today, let’s take a look back at cases related to spoliation and sanctions.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

It’s also worth noting that Tom O’Connor and I will once again be discussing some of these cases – and what the legal profession can learn from those rulings – on our webcast on Wednesday, January 29thImportant eDiscovery Case Law Decisions of 2019 and Their Impact on 2020 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

SPOLIATION / SANCTIONS

Last year, sanctions and spoliation issues were not the topic with the largest number of case law decisions related to eDiscovery that we covered for the first time ever.  This year, spoliation and sanctions cases returned to the top spot once again and we easily had another ten to fifteen cases involving sanctions that we classified in other areas.  In one of those cases worthy of The Twilight Zone, a party actually fought against having a claim against them dismissed to preserve a sanction possibility against the opposition; in another, a court reversed a jury decision because the trial court failed to issue a sanction for spoliation.  Here are our fifteen sanctions and spoliation cases this past year (that we chose to categorize as such, anyway):

No Bad Faith Means No Sanctions for Failing to Preserve Video of Altercation: In Stovall v. Brykan Legends, LLC, Kansas Magistrate Judge James P. O’Hara denied the plaintiff’s motion for sanctions based on the defendant’s alleged spoliation of a surveillance video that shows an altercation between the plaintiff and her supervisor, stating that “plaintiff has failed to meet the requirements of Fed. R. Civ. P. 37(e)(2)”.

To Preserve Sanction Potential, Plaintiff Fights To NOT Have Claim Against Them Dismissed: Yes, you read that right.  In DR Distrib., LLC v. 21 Century Smoking, Inc., Illinois District Judge Iain D. Johnston denied the defendants’ Motion for Leave to Amend their counterclaim to remove their own defamation counterclaim (Count VIII) against the plaintiffs – a move to which the plaintiffs objected, because it could eliminate their chance to pursue sanctions against the defendants for ESI spoliation.

Court Denies Sanctions Request Because Defendant Didn’t Prove the Information was Irretrievable: In Envy Hawaii LLC v. Volvo Car USA LLC, Hawaii District Judge Helen Gillmor denied the defendant’s motion for spoliation sanctions, stating that the defendant “has not established that spoliation sanctions are available because the information it seeks is not “lost” within the meaning of Fed. R. Civ. P. 37(e).”

Appeals Court Reverses Jury Decision Based on Failure of Court to Issue Spoliation Sanction: In Marshall v. Brown’s IA, LLC, the Superior Court of Pennsylvania, ruling that the trial court “abused its discretion in refusing the charge” of an adverse inference sanction against the defendant for failing to preserve several hours of video related to a slip and fall accident, vacated the judgment issued by the jury within the trial court for the defendant and remanded the case for a new trial.

Simon Says Two Years After Spoliation is Discovered is Too Late for Sanctions: In Wakefield v. Visalus, Inc., Oregon District Judge Michael H. Simon denied the plaintiff’s motion for sanctions against the defendant for automatic deletion of call records, ruling that since the plaintiff knew about the deletion of call records for over two years, her motion was “untimely”.

Court Sanctions US Government for Spoliation in Copyright Infringement Case: In 4DD Holdings, LLC v. U.S., the US Court of Federal Claims, in an opinion issued by Judge Bruggink, “grant[ed] plaintiffs’ motion for sanctions because the government destroyed relevant evidence that it had a duty to preserve.”  The Court directed the plaintiffs to “file a motion, appropriately supported, seeking a recovery of its costs and fees related to the motion for sanctions and with respect to discovery prompted by the destruction of evidence” and indicated it would “defer until summary judgment or trial the application of the evidentiary implications of this ruling.”  The court also denied the defendant’s motion to dismiss “[b]ecause plaintiffs established that the government authorized or consented to SMS’s allegedly infringing activity when working in SMS labs.”

With No Showing of Prejudice, Court Denies Spoliation Sanctions Against Defendant: In Mafille v. Kaiser-Francis Oil Co., Oklahoma Magistrate Judge Frank H. McCarthy, finding that the plaintiffs “have not demonstrated they have been prejudiced” by the loss of the plaintiff former employee’s work computer, denied the plaintiffs’ motion for sanctions “without prejudice to reassertion of the motion if through discovery it is determined that some specific evidence is beyond Plaintiffs’ reach” for the defendant’s “clear failure” to preserve the computer.

Discovery “Cautionary Tale” Leads to Recommendations of Default Judgment Against Defendants: In Abbott Laboratories, et al. v. Adelphia Supply USA, et al., New York Magistrate Judge Lois Bloom, noting that the plaintiff’s motion for case ending sanctions against H&H Wholesale Services, Inc., its principal, Howard Goldman, and its marketing manager and Mr. Goldman’s wife, Lori Goldman (“H&H Defendants”) for wide-scale discovery misconduct “presents a cautionary tale about how not to conduct discovery in federal court” recommended that the plaintiffs’ motion be granted, and that the Court should enter a default judgment against the H&H Defendants.

Simon Says – Once, Twice, Three Times a Spoliator: In Univ. Accounting Serv., LLC v. Schulton, Oregon District Judge Michael H. Simon granted in part the plaintiff’s Motion for Terminating Spoliation Sanctions Against Defendant Ethan Schulton, finding that the defendant “acted with the intent to deprive” the plaintiff of information that he deleted, but granted the plaintiff’s alternative motion for lesser sanctions, choosing to provide the jury with a permissive inference spoliation instruction against the defendant instead of case termination sanctions.

Court Denies Dueling Sanctions Motions from Both Plaintiffs and Defendants: In Cox v. Swift Transportation Co. of Arizona, LLC, Oklahoma District Judge Jodi F. Jayne denied both the plaintiffs’ and defendants’ motion for sanctions for spoliation of evidence, finding no intent to deprive by either side to justify a sanction of either an adverse inference jury instruction or directed verdict (for the plaintiffs)/dismissal (for the defendants).

Court Grants Spoliation Sanctions for Defendant’s Failure to Preserve Photos of Prisoner Plaintiff: In Wilmoth v. Deputy Austin Murphy, Arkansas District Judge Timothy L. Brooks granted the plaintiff’s Motion for Relief Regarding Spoliation, finding that the “defendant’s conduct in this case was designed to deprive” the plaintiff the use of photographs in litigation that were purported to have shown injuries suffered by the plaintiff associated with his excessive force claim against the deputy defendant.

Another Case Where Intent to Deprive is Put in the Hands of the Jury: In Woods v. Scissons, Arizona Chief District Judge G. Murray Snow granted in part and denied in part the plaintiff’s motion for sanctions for spoliation of video footage of an arrest incident involving the plaintiff and the defendant (a police officer with the Prescott Police Department), ruling that non-party City of Prescott violated a duty to preserve evidence of the alleged incident, but that the question of intent should be submitted to the jury to determine appropriate sanctions.

Court Denies Motion to Bar Plaintiff From Making Adverse Comments Regarding Defendant’s Failure to Produce Key File: In Saulsberry v. Savannah River Remediation, LLC, South Carolina District Court Judge J. Michelle Childs denied without prejudice the defendant’s Motion in Limine to Bar Plaintiff from Making Adverse Comments Regarding Defendant’s Failure to Produce Certain Records, finding that defendant “has not demonstrated that the contents of the missing Lash Investigative File would necessarily replicate, but not add to, the information provided in the record.”

Despite Email from Defendants Instructing to Destroy Evidence, Court Declines Sanctions: In United States et al. v. Supervalu, Inc. et al., Illinois District Judge Richard H. Mills, despite an email produced by the defendants with instructions to their pharmacies to destroy evidence, denied the relators’ motion for sanctions, stating: “Upon reviewing the record, the Court is unable to conclude that Defendants acted in bad faith. If the evidence at trial shows otherwise and bad faith on the part of the Defendants is established, the Court can revisit the issue and consider one or both of the sanctions requested by the Relators or another appropriate sanction.”

Court Denies Plaintiff’s Motion for Sanction for Spoliation of Audio Recording: In Montoya v. Loya Ins., New Mexico Magistrate Judge Steven C. Yarbrough denied the plaintiff’s Motion For Sanctions For Spoliation Of Audio Recording Evidence, after a jury trial in favor of the plaintiff, finding that there was minimal prejudice to the plaintiff and that “there is no dispute over the relevant contents of the telephone conversation” which was recorded.

That’s it for this year’s review, but we’ve already started assembling cases for next year with this decision we covered last week.  So, what will be the notable cases of 2020?  Catch them as we cover them here all year!

Want to take a look at cases we covered the previous eight years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2019 eDiscovery Case Law Year in Review, Part 3

As we noted Tuesday and yesterday, eDiscovery Daily published 66 posts related to eDiscovery case decisions and activities over the past year, covering 56 unique cases!  Yesterday, we looked back at cases related to cooperation, form of production, privilege and confidentiality disputes, social media related disputes and a key case regarding biometric security.  Today, let’s take a look back at cases related to disputes regarding proportionality vs. relevancy vs. privacy.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

It’s also worth noting that Tom O’Connor and I will once again be discussing some of these cases – and what the legal profession can learn from those rulings – on our webcast on Wednesday, January 29thImportant eDiscovery Case Law Decisions of 2019 and Their Impact on 2020 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

PROPORTIONALITY vs. RELEVANCY vs. PRIVACY

Since the 2015 Federal Rules changes and changes to Rule 26(b)(1) regarding the scope of discovery, we’re seeing more disputes regarding proportionality vs. relevancy vs. privacy than ever.  Once again this year, there are a lot of disputes related to proportionality vs. relevancy, relevancy vs. privacy and proportionality vs. privacy and they cover all sorts of disputes.  Here are fourteen cases related to proportionality vs. relevancy vs. privacy this past year:

Court Sides with Defendants in Subpoena of Police Department Records of Unsolved Murder: In Farmers New World Life Ins. Co. v. Atchison, Oklahoma District Judge Timothy D. DiGiusti granted the “Children” defendants’ Motion to Compel against non-party City of Oklahoma City Police Department (“OCPD”) to comply with the Children’s subpoena of records related to the murder of their father in a civil case with the insurance company.

Court Orders Defendants to Comply with Rule 26(a), Ditch the Boilerplate Objections: In RightCHOICE Managed Care, Inc. v. Hospital Partners, Inc., Missouri District Judge Greg Kays ordered the discovery defendants to “supplement their initial disclosures so that they comply with Rule 26(a)” (within 14 days) and “either respond to Plaintiffs’ interrogatories and requests for production in good faith or specifically tailor their objections to each question or request”, as well as requiring each discovery defendant to “prepare a statement identifying the steps taken to preserve discoverable information”, among other things.

Court Orders Defendant to Respond to Interrogatories to Identify Number of Phone Calls it Made: In Franklin v. Ocwen Loan Serv., LLC, California District Judge Susan Illston ordered the defendant to respond to interrogatories, “with, at minimum, information regarding the total number of phone calls defendant made during the relevant period to California residents (including any account associated with a California address and any account containing a California area code)” and ordered the parties to stipulate to a method for extrapolating the total number of recorded phone calls defendant made to California residents during the relevant period.

Court Rejects Carpenter Argument for Third Party Subpoena of Google Subscriber Info: In U.S. v. Therrien, Vermont District Judge Christina Reiss denied the defendant’s motion to suppress evidence obtained via a subpoena of Google for subscriber information, rejecting the defendant’s argument that the United States Supreme Court decision in Carpenter v. US forecloses the government’s ability to obtain this type of data without a warrant.

Court Denies Plaintiff’s Motion to Compel Production of ESI Related to 34 Searches: In Lareau v. Nw. Med. Ctr., Vermont District Judge William K. Sessions III denied the plaintiff’s motion to compel production of ESI related to 34 search terms proposed by the plaintiff during meet and confer with the defendant, based on the extrapolation from a single search term that the plaintiff’s production request would require 170 hours of attorney and paralegal time and would produce little, if any, relevant information.

Discovery Can’t Be Stayed While Motion to Dismiss is Considered, Court Says: In Udeen v. Subaru of America, Inc., New Jersey Magistrate Judge Joel Schneider denied the defendants’ request that all discovery be stayed until their Motion to Dismiss is decided, but, with the proviso that only limited and focused discovery on core issues would be permitted.

Court Grants Motion to Compel Production of Telephone Records from Individual Plaintiff: In Siemers v. BNSF Railway Co., Nebraska Magistrate Judge Susan M. Bazis finding that the plaintiff’s telephone records are discoverable pursuant to Fed. R. Civ. P. 26, that they are not subject to a privilege claim just because plaintiff’s counsel’s telephone number may appear in the records and that privacy issues are minimal to non-existent (since the at-issue records do not contain the substance of communications), ordered the plaintiff to produce his telephone records within one week of the order.

Court Establishes Search Protocol to Address Plaintiff’s Motion to Compel: In Lawson v. Spirit Aerosystems, Inc., Kansas Magistrate Judge Angel D. Mitchell granted in part and denied in part the plaintiff’s motion to compel, ordering the defendant to produce documents related to two requests and, with regard to a third request, ordering the defendant to “produce these documents to the extent that such documents are captured by the ESI search protocol.”

Court Upholds Decision Not to Compel Plaintiff to Produce Unredacted Narrative of Events: In Kratz v. Scott Hotel Group, LLC, Indiana District Judge Tanya Walton Pratt, stating “[t]o invoke schoolyard vernacular: no do-overs”, denied the defendant’s objections to the Magistrate Judge’s decision not to compel the plaintiff to produce versions of an unredacted narrative of events associated with his hotel stays and interactions with hotel staff.

Plaintiff Requests His Entire PST File, Court Says No: In Russell v. Kiewit Corp., Kansas Magistrate Judge James P. O’Hara denied the plaintiff’s motion seeking to compel supplemental discovery responses by the seven defendants, including the request to receive his entire e-mail personal storage (PST) file, agreeing with the defendants’ contention that the request was overly broad and not proportional.

Despite Protective Order, Court Orders Plaintiff to Produce Source Code and Log File Printouts: In Opternative, Inc. v. Jand, Inc., New York Magistrate Judge Sarah Netburn granted in part and denied in part the defendant’s motion to compel the plaintiff to produce printouts of two files of source code, a printout of a log file, and a listing of directories and files.  Judge Netburn ordered the plaintiff to produce the source code and log file printouts requested, but not the file directory listing, choosing to reserve judgment on that for the time being.

Court Denies Plaintiff’s Request to Avoid Forensic Imaging of Devices in Apple Performance Case: In the case In Re: Apple Inc., California District Judge Edward J. Davila denied the plaintiffs’ motion to modify the Special Discovery Master order that authorized the forensic imaging of devices belonging to 10 of the more than 90 named plaintiffs in order to allow Apple’s outside experts to performance test the devices, finding that “Apple’s interest in performance testing the forensic images outweighs Plaintiff’s privacy interest because Plaintiffs put the performance of the devices at the center of the lawsuit”.

Court Denies Petitioners’ Motion to Quash, But Also Finds Subpoena Is Not Within Scope of Discovery: In the case In re Verizon Wireless, Maryland Magistrate Judge Charles B. Day denied the petitioners’ Motions to Quash the respondents’ subpoena, finding that the petitioners did not have sufficient standing to have the subpoena quashed for phone numbers owned by Prince George’s County.  However, Judge Day also found that the subpoena was overbroad and was not within the scope of discovery and, as a result, granted the petitioners’ Motions for Protective Orders.

Court Denies Criminal Defendant’s Motion to Suppress Evidence Obtained via Warrantless Search: In United States v. Caputo, Oregon District Judge Karin J. Immergut denied the defendant’s motion to suppress emails and evidence derived from a warrantless search of Defendant’s workplace email account, finding “any expectation of privacy in Defendant’s work email was objectively unreasonable under the military’s computer-use policies in effect at his workplace.”

One more day to go!  What category will we cover tomorrow that had the most cases we covered this past year?  Stay tuned!

Want to take a look at cases we covered the previous eight years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2019 eDiscovery Case Law Year in Review, Part 2

As we noted yesterday, eDiscovery Daily published 66 posts related to eDiscovery case decisions and activities over the past year, covering 56 unique cases!  Yesterday, we looked back at cases related to passwords and Fifth Amendment protection, non-party discovery and mobile and messaging.  Today, let’s take a look back at cases related to cooperation, form of production, privilege and confidentiality disputes, social media related disputes and a key case regarding biometric security.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

It’s also worth noting that Tom O’Connor and I will once again be discussing some of these cases – and what the legal profession can learn from those rulings – on our webcast on Wednesday, January 29thImportant eDiscovery Case Law Decisions of 2019 and Their Impact on 2020 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

BIOMETRIC SECURITY

When a 14-year old takes a class trip to Six Flags and his fingerprint is biometrically captured without parental approval, a lawsuit ensues.  This case might have had a different result in 47 other states as only three states (Texas and Washington, in addition to Illinois) have biometric security laws:

Illinois Court Says Biometric Fingerprint is Violation of Privacy, Even Without Injury: On January 25, the Illinois Supreme Court rejected an argument from a popular theme park that would have limited a state law that requires consent for the use of facial recognition and other biometrics.  The January ruling involved Six Flags, which allegedly fingerprinted a 14-year-old visitor without parental approval. Contesting the case, Six Flags argued it couldn’t be held liable unless the plaintiff demonstrated a tangible injury from the unauthorized collection, often a difficult task in privacy lawsuits.

COOPERATION

Technically, you could argue that all cases involve a lack of cooperation on discovery.  But, this case – where an attorney sought sanctions against another for hanging up on him – is a unique example of lack of cooperation:

Court Denies Sanction Request for Attorney Who Hung Up on Opposing Counsel One Time: In Ewing v. Aliera Healthcare, California Magistrate Judge Linda Lopez denied the plaintiff’s motion for sanctions for “rudely and unprofessionally” hanging up on the plaintiff during a call that defendant’s counsel made to the plaintiff to cancel a meet and confer appointment.

FORM OF PRODUCTION

We certainly didn’t see near as many form of production disputes as last year, where we had ten cases dealing with the issue in 2018.  Here is one such case from 2019:

Court Denies Defendant’s Motion to Compel Production of Documents and Metadata: In Washington v. GEO Group, Inc., Washington District Judge Robert J. Bryan denied the defendant’s Motion to Compel Production of Documents and Metadata, ruling that the defendant “fails to identify a specific response for production to which the State did not respond”, that the defendant “has not shown that the [metadata] is relevant and proportional to the needs of the case” and that the “the parties have not met and conferred as to this recent log as required under Fed. R. Civ. P. 37(a)(1).”

SOCIAL MEDIA RELATED CASES

There are always a handful of cases each year related to discovery of social media data.  However, this year we had two social media related cases of a different sort – involving judge “friending” of participants in litigation (one party, one attorney – that one was technically a 2018 ruling, but we covered it last year).  Oh, and a photo on social media can be discoverable simply because you’re “tagged” in it.  Here are five social media related cases:

Relying on Interpretation of the SCA, Appeals Court Reverses Subpoenas Against Facebook: In Facebook, Inc. v. Wint, the District of Columbia Court of Appeals, stating that “[t]he plain text of the SCA (Stored Communications Act) thus appears to foreclose Facebook from complying with Mr. Wint’s subpoenas”, concluded that the appellee “has not established the existence of a serious constitutional doubt that could warrant application of the doctrine of avoidance” reversing the trial court’s order holding Facebook in civil contempt for refusing to comply with subpoenas served by appellee Daron Wint.

NY Appeals Court Extends Discoverability of Social Media Photos to “Tagged” Photos: In Vasquez-Santos v. Mathew, the New York Appellate Division, First Department panel “unanimously reversed” an order by the Supreme Court, New York County last June that denied the defendant’s motion to compel access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities and granted the defendant’s motion.

Judge’s Facebook Friendship with Party Causes Decision to Be Reversed and Remanded to Different Judge: In the case In Re the Paternity of B.J.M., the Court of Appeals of Wisconsin, concluding that “the circuit court’s undisclosed ESM connection with a current litigant in this case {by accepting a Facebook “friend” request from the litigant} created a great risk of actual bias, resulting in the appearance of partiality”, reversed and remanded the case for further proceedings before a different judge.

Court Sanctions Plaintiff for Spoliation of Facebook Account: In Cordova v. Walmart Puerto Rico, Inc. et al., Puerto Rico District Judge Aida M. Delgado-Colon granted in part and denied in part the defendant’s motion to dismiss for fraud on the Court, denying the defendant’s request for dismissal, but imposing a sanction of adverse inference regarding the content of the plaintiff’s Facebook page and her deletion of the related account.  Judge Delgado-Colon also ordered the defendant to “submit a proposed adverse-inference jury instruction to that effect before trial.”

Another Case of Judicial “Friending”, But with a Different Result: “Should a judge be disqualified from a case based solely on a Facebook friendship with one of the attorneys?”  The Florida Supreme Court recently answered the question in the negative in Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass’n, when it held that “an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, is not a legally sufficient basis for disqualification.”

PRIVILEGE AND CONFIDENTIALITY

We always have a handful of cases involving disputes regarding privilege and confidentiality and this year was no different.  One of those cases was certainly unique in that it involved “clawback” of an inadvertent disclosure of privileged ESI (which was granted), but the inadvertently disclosed ESI was still used to determine sanctions against that party.  Here are five cases that dealt with privilege and confidentiality disputes:

Court Rules That Privilege Assertion and Potential Fraud Don’t Mix: In Gates Corp. v. CRP Indus., Inc., Colorado Magistrate Judge Kristen L. Mix overruled the Defendant’s Objection to Report and Recommendation of Special Master on Gates Corporation’s Motion to Pierce Attorney/Client Privilege and proceeded with the Discovery Master’s recommendation, ordering the defendant to submit for in camera review readable and searchable versions of the documents identified as privileged by the defendant (along with an Excel spreadsheet of the privilege log) to the Special Master for review.

Appellate Court Vacates Order Allowing Plaintiff’s Expert Access to Defendant’s ESI Prior to Privilege Determination: In Crosmun v. Trustees of Fayetteville Technical Community College, the Court of Appeals of North Carolina, holding that the trial court abused its discretion by compelling production through a protocol that provided the plaintiffs’ expert with direct access to potentially privileged information and precluded reasonable efforts by Defendants to avoid waiving any privilege, vacated the order and remand for further proceedings not inconsistent with its opinion.

Wal-Mart is Allowed to Clawback Inadvertent Disclosures, But Still Sanctioned Over What They Revealed: In Bellamy v. Wal-Mart Stores, Texas, LLC, Texas District Judge Xavier Rodriguez ruled that the defendant was entitled to “claw back” the documents it inadvertently produced in the case, but still considered those documents in analyzing the plaintiff’s motion for sanctions and granted that motion to the extent that he ruled that the defendant could not assert any comparative negligence defense in this case, including arguing that the danger (of a pallet being left unattended in the store) was open and obvious.

Court Agrees that Emails Including Counsel Aren’t Privileged Because They Don’t Offer Legal Advice: In Guardiola v. Adams Cty. School District No. 14 et al., Colorado District Court Judge Raymond P. Moore overruled the defendants’ objection to the magistrate judge’s order compelling them to disclose three e-mails that they contended were subject to the attorney-client privilege, ruling that “[t]he disputed e-mails do not directly request or offer legal advice.”

Court Denies Motion to Redact Portions of eDiscovery Teleconference: In Pacific Biosciences of California, Inc. v. Oxford Nanopore Tech., Inc. et al., Delaware Magistrate Judge Jennifer L. Hall denied the defendants’ Motion to Redact Portions of the August 14, 2019 Discovery Teleconference and the related submissions, stating: “The public has an interest in understanding judicial proceedings, even if they have a limited interest in documents submitted in connection with discovery dispute proceedings.”

We’re only halfway done!  Tomorrow, we will cover cases related to disputes regarding proportionality vs. relevancy vs. privacy.  Stay tuned!

Want to take a look at cases we covered the previous eight years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2019 eDiscovery Case Law Year in Review, Part 1

It’s that time of year again!  Time for our annual review of eDiscovery case law!  This is our ninth(!) annual review of cases that we covered on the eDiscovery Daily blog over the past year.  As always, we had a number of interesting cases related to various eDiscovery topics.  So, as we have done for the last eight(!) years, let’s take a look back at 2019!

Last year, eDiscovery Daily published 66 posts related to eDiscovery and data privacy case decisions and activities over the past year, covering 56 unique cases!  The same number of cases as last year and less than a lot of years (believe it or not).  We’re up to 719 lifetime case law related posts, covering 558 unique cases since our inception back in 2010.  And, all case law posts are still online and available for research!  :o)

As always for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts.  A few of them could be categorized in more than one category, so we took our best shot (let’s face it, there were a ton of sanctions cases we covered, but chose to classify some of them in other areas).  Perhaps you missed some of these?  Now is your chance to catch up!

It’s also worth noting that Tom O’Connor and I will once again be discussing some of these cases – and what the legal profession can learn from those rulings – on our webcast on Wednesday, January 29thImportant eDiscovery Case Law Decisions of 2019 and Their Impact on 2020 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

PASSWORDS AND FIFTH AMENDMENT PROTECTION

What better place to start than two of the most notable cases of this (or any other) year, dealing with forced provision of device passwords and the application of the “foregone conclusion” exception of the Fifth Amendment protection against self-incrimination. The only thing “common” about the result of these two cases is that they involved the Commonwealth of two different states.  Expect more cases to follow in this area:

In Decision That Sounds the “Death Knell” for Fifth Amendment Protection, Defendant Ordered to Provide Cell Phone Password: In Commonwealth v. Jones, the Supreme Judicial Court of Massachusetts reversed a lower court judge’s denial of the Commonwealth’s renewed Gelfgatt motion (where the act of entering the password would not amount to self-incrimination because the defendant’s knowledge of the password was already known to the Commonwealth, and was therefore a “foregone conclusion” under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights), and the court remanded the case to the Superior Court for entry of an order compelling the defendant to enter the password into the cell phone at issue in the case.

Pennsylvania Supreme Court Rules that Forcing Provision of Computer Password Violates the Fifth Amendment: In Commonwealth v. Davis, the Supreme Court of Pennsylvania, in a 4-3 ruling, overturned a lower-court order that required a criminal suspect to turn over a 64-character password to his computer, concluding that “compelling the disclosure of a password to a computer, that is, the act of production, is testimonial” and rejecting the Commonwealth’s argument that provision of the password was a foregone conclusion, finding that “the prohibition of application of the foregone conclusion rationale to areas of compulsion of one’s mental processes would be entirely consistent with” US Supreme Court decisions.

NON-PARTY DISCOVERY

It seems that one of the biggest trends of the year were cases where litigants were battling with non-parties to their cases to get the court to decide whether to order those non-parties to produce what was requested.  Here are six cases last year where courts decided on non-party discovery requests:

Court Denies Non-Party’s Request to Quash Subpoena in Telecommunications Dispute: In Fair v. Commc’ns Unlimited Inc., Missouri District Judge Rodney W. Sippel denied the motion to quash discovery filed by non-party Charter Communications (Charter), finding that the plaintiff had demonstrated that she had been unable to obtain the information from the defendants, that her request was not overbroad or unduly burdensome, that the information requested would not disclose personally identifiable information (PII) and that any sensitive or confidential information could be protected with redactions or a protective order.

Florida Appeals Court Upholds Ruling that Non-Party Had No Duty to Preserve Evidence: In Shamrock-Shamrock, Inc. v. Remark, the District Court of Appeal of Florida, Fifth District affirmed the summary final judgment in favor of the Appellee, holding that Florida law does not impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation.

Court Orders Plaintiff to Share in Discovery Costs of Non-Party: In Lotus Indus., LLC v. Archer, Michigan Magistrate Judge Anthony P. Patti granted in part and denied in part without prejudice non-party City of Detroit Downtown Development Authority’s (DDA) motion for protective order in connection with the Court’s order granting in part and denying in part the plaintiff’s motion to compel documents requested by subpoena, ordering the plaintiff to pay some of DDA’s discovery costs, but not as much as DDA requested.

Court Rejects Plaintiff’s Timeliness and Form Served Arguments; Grants Defendant’s Motion to Compel: In Frey v. Minter, Georgia Chief U.S. District Court Judge Clay D. Land rejected the plaintiff’s arguments that the defendant’s discovery requests were untimely and were not properly served and granted the defendant’s motion to compel against the plaintiff.  With regard to the defendant’s motion to compel against a non-party law firm, Judge Clay ordered that firm to provide the defendant with an estimated cost for responding to the requests, and upon payment of those costs, to produce the documents within twenty-one days.

Court Denies Plaintiff’s Request to Hold Non-Party in Contempt for Failing to Produce Native Files: In Smith v. TFI Family Services, Inc., Kansas Magistrate Judge Gwynne E. Birzer denied the Plaintiff’s Motion for Order Against Defendant State of Kansas Department for Children and Families to Show Good Cause Why it Should not be Held in Contempt and Motion for Sanctions for failing to produce ESI in native format with associated metadata.  Judge Birzer found that “Plaintiff cannot point to a ‘specific and definite’ section of the Court’s June 8, 2018 Order requiring specific types of ESI be produced or requiring records be produced in native format with associated metadata” and also that “Plaintiff has not made a particularized showing” why re-production of the PDF documents in native format with associated metadata “is relevant to the case at hand”.

Court Grants Motion to Compel in Elizabeth Holmes Theranos Criminal Case: In United States v. Holmes, et al, California District Court Judge Edward J. Davila granted the defendants’ motion to compel federal prosecutors to produce material responsive to six requests from the Food and Drug Administration (FDA) and the Centers for Medicare and Medicaid Services (CMS), disagreeing with the prosecution’s contention that it could not be compelled to produce documents from under Rule 16 because it lacked access to them.

MOBILE AND MESSAGING

One thing is clear – we are starting to see more and more cases where discovery of mobile device data and messaging application data (including data from ephemeral messaging applications) are part of discovery disputes, especially when parties fail to preserve that data.  Here are six cases that dealt with disputes regarding mobile and messaging data (two of them involved celebrities!):

Court Declines to Order Plaintiff to Produce Cell Phone in Employment Discrimination Case: In Santana v. MKA2 Enterprises, Inc., Magistrate Judge Teresa J. James denied the defendant’s Motion to Compel regarding the defendant’s request for the plaintiff to produce all of his cellphones for inspection and copying.  Judge James did order the plaintiff to “produce complete copies of all responsive text messages to the extent they have not already been produced.”

In Lawsuit Over Prince Music, Court Grants Monetary But Not Adverse Inference Sanctions (Yet): In Paisley Park Enter., Inc. v. Boxill, Minnesota Magistrate Judge Tony N. Leung granted in part the plaintiffs’ Motion for Sanctions Due to Spoliation of Evidence, ordering the Rogue Music Alliance (“RMA”) Defendants to pay reasonable expenses, including attorney’s fees and costs, that Plaintiffs incurred as a result of the RMA Defendants’ “misconduct”, and also ordered the RMA Defendants to pay into the Court a fine of $10,000, but chose to defer consideration of adverse inference instruction sanctions to a later date, closer to trial.

No Proof of Intent to Deprive Means No Adverse Inference Sanction: In DriveTime Car Sales Company, LLC v. Pettigrew, Judge George C. Smith granted in part and denied in part the plaintiff’s motion for spoliation sanctions against defendant Pauley Motor, denying the plaintiff’s request for an adverse inference sanction by ruling that “DriveTime has not sufficiently demonstrated that Pauley Motor acted with the requisite intent” when Bruce Pauley failed to take reasonable steps to preserve text messages when he switched to a different phone.  Judge Smith did “order curative measures under Rule 37(e)(1)”, allowing the plaintiff to “introduce evidence at trial, if it wishes, of the litigation hold letter and Pauley Motor’s subsequent failure to preserve the text messages.”

Court Recommends Finding of Intent to Deprive for Defendant’s Lost Text Messages: In NuVasive, Inc. v. Kormanis, North Carolina Magistrate Judge L. Patrick Auld recommended that, “because the record supports but does not compel a ‘finding that [Defendant Kormanis] acted with the intent to deprive [Plaintiff] of the [lost text messages’] use in the litigation, the Court submit that issue to the ‘jury, [with] the [C]ourt’s instruction[s] mak[ing] clear that the jury may infer from the loss of the [text messages] that [they were] unfavorable to [Defendant Kormanis] only if the jury first finds that [he] acted with the intent to deprive [Plaintiff] of the[ir] use in the litigation’”.

Mobile Phone Spoliation Ends Not One, But Two Cases for Kevin Spacey: In Commonwealth v. Fowler, a criminal prosecution, and a related civil action, Little v. Fowler, that stemmed from sexual assault allegations against the actor Kevin Spacey (whose legal name is Kevin Spacey Fowler), both cases were dismissed when the alleged victim was unable to produce a cell phone key to evidence in the two cases.

Court Infers Bad Faith for Plaintiffs Use of Ephemeral Messaging App: In Herzig v. Arkansas Foundation for Medical Care, Inc., Arkansas District Judge P.K. Holmes, III indicated his belief that the use and “necessity of manually configuring [the messaging app] Signal to delete text communications” on the part of the plaintiffs was “intentional and done in bad faith”.  However, Judge Holmes declined to consider appropriate sanctions, ruling that “in light of the [defendant’s] motion for summary judgment, Herzig and Martin’s case can and will be dismissed on the merits.”

We’re just getting started!  Tomorrow, we will cover cases related to cooperation, form of production, privilege and confidentiality disputes, social media related disputes and a key case regarding biometric security.  Stay tuned!

Want to take a look at cases we covered the previous eight years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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