Close
Enter your
text here

Case Law

Houston, We Have an Adverse Inference Finding: eDiscovery Case Law

In Hernandez, et al. v. City of Houston, No. 4:16-CV-3577 (S.D. Tex. Aug. 30, 2018), Texas District Judge Kenneth M. Hoyt, finding that the defendant “intentionally destroyed” evidence by wiping the hard drives of several custodians no longer employed by the City, determined “that entering an adverse inference finding is appropriate” against the defendant.

Case Background

In this case regarding alleged illegal detainment of the plaintiffs in City jail where each of the plaintiffs contends that he was held in the City’s jail for more than 48 hours without a judicial determination or a probable cause hearing, the Court entered an agreed ESI order in November 2017, which promoted cooperation between the parties (including agreement on search terms) and designated thirteen specific custodians, whose records the plaintiffs were seeking.  Weeks after the ESI Order, the defendant had still not supplemented missing metadata from an earlier production to bring the production into compliance with the Court’s Order and, after several meet and confers by phone, defendant’s counsel requested an in-person meeting.

On December 13, 2017, during that in-person meeting, the defendant represented that (i) it had not interviewed any of the custodians listed in the ESI Order, (ii) it had not collected documents from any of the custodians listed in the ESI Order and (iii) it had “wiped” the hard drives of six of those custodians no longer employed by the defendant.  At that meeting, the plaintiffs offered to provide names of vendors to help with document processing and review and offered to pay a substantial portion, if not all, of the costs that might be incurred. The defendant refused this offer and missed its December 15, 2017 deadline to certify document production was complete.

In January 2018, the defendant represented that it had collected 72,000 documents, but had yet to review them, despite the passage of the discovery deadline. By February 28, 2018, when the plaintiffs moved to compel production, the defendant had only produced 126 files from the Mayor’s office – all of which was unresponsive to the plaintiffs’ document requests.  In April 2018, the defendant claimed it had collected 2.6 million documents by running “word searches based on the ESI Protocol” and it would take 17,000 hours to review all of those documents.  Based on these representations, the plaintiffs agreed to provide a narrower set of search terms.  On April 10, 2018, the Court ordered the defendant to “produce all non-privileged documents responsive to the plaintiffs’ requests for production nos. 1-4, 8 and 9 in accordance with the Court’s November 8, 2017, ESI Order” and also notified the defendant that “[f]ailure to comply with this Order will result in sanctions, including but not limited to monetary sanctions and an adverse inference instruction”.

When the defendant ran the plaintiffs’ narrowed search terms, it retrieved 48,976 documents.  However, it then proceeded to unilaterally apply its own search terms, which retrieved 9,992 documents, which were reviewed for responsiveness.  The defendant produced only 368 responsive documents in response to the April 10 court order.

Judge’s Ruling

With regard to the wiped drives for the six custodians no longer employed by the defendant, Judge Hoyt stated: “Those hard drives contained ESI that should have been preserved by the City as soon as it anticipated litigation, and definitely after the instant lawsuit was filed. The City acknowledged its “clear obligation” to preserve all responsive documents after the litigation was pending. Yet the City failed to take reasonable steps to preserve the data on the hard drives and intentionally wiped the drives. The Court determines that the information on the hard drives cannot be restored or replaced through additional discovery.”

Judge Hoyt also found that the defendant had “Made Misrepresentations to the Court About Its Flawed Discovery Process”, indicating that it: 1) “represented that it needed to review 2.6 million documents”, 2) “did not review the 78,702 documents generated by the plaintiff’s April 2018 search terms”, 3) “represented that it had issued a litigation hold” and 4) “obfuscated the status of the hard drives”.

As a result, Judge Hoyt ruled, as follows:

“Federal Rule of Civil Procedure 37(b)(2) provides that an order establishing contested facts as true is an appropriate remedy when a party violates a discovery order. See Rule 37(b)(2)(i)-(ii). This type remedy cures the violation without inflicting additional costs on the parties, and for that reason, the Court determines, in its discretion that entering an adverse inference finding is appropriate…

Therefore, the Court HOLDS that the following inference is appropriate based on the City’s conduct:

It is established that (a) throughout the class period, the City of Houston had a policy of not releasing warrantless arrestees who had not received neutral determinations of probable cause within the constitutionally required period of time; (b) throughout the class period, the City’s policymakers were aware of this policy; and (c) the City’s policymakers acted with deliberate indifference to the unconstitutional policy and the constitutional violations that resulted.”

So, what do you think?  Was the adverse inference sanction appropriate in this case?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Also, if you’re going to be in Houston on Thursday, September 27, just a reminder that I will be speaking at the second annual Legal Technology Showcase & Conference, hosted by the Women in eDiscovery (WiE), Houston Chapter, South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS).  I’ll be part of the panel discussion AI and TAR for Legal: Use Cases for Discovery and Beyond at 3:00pm and CloudNine is also a Premier Platinum Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).  Click here to register!

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 Compels Non-Party Insurance Agents to Produce Text Messages in TCPA Case: eDiscovery Case Law

In Gould v. Farmers Insurance Exchange, No. 4:17 CV 2305 RWS (E.D. Mo. Aug. 30, 2018), Missouri District Judge Rodney W. Sippel granted the plaintiff’s motion to compel two non-party Farmers Insurance agents to comply with subpoenas and produce documents pertaining to text messages that they allegedly sent to potential customers, rejecting the agents’ argument that compliance with the subpoenas would violate their Fifth Amendment right against compelled, self-incriminating testimony.

Case Background

In this Telephone Consumer Protection Act (TCPA) case, the plaintiff alleged that, at the direction of the defendant insurance companies, non-party Farmers Insurance agents James Lohse and Joe Ridgway sent text messages to her without her consent, in violation of the TCPA. The plaintiff sought to represent similarly situated plaintiffs who received messages without their consent marketing certain Farmers Insurance products.

To obtain information on potential plaintiffs and the alleged TCPA violations generally, the plaintiff served subpoenas on the non-party agents, which requested that the agents produce phone numbers of potential customers to which text messages were sent; the content of those text messages; any contracts, correspondence, invoices, and payment records the agents have with other entities that facilitated the alleged spam texts or provided the potential customers’ numbers; documents concerning any purchase of an insurance policy by the recipients of these texts; and any documents reflecting that the recipients of these texts consented to receive those messages.

The non-party agents objected and refused to produce documents responsive to these requests, initially arguing that such discovery was inappropriate until the parties’ resolved an initial question of consent. After the defendants’ declined to file a motion summary judgment on the issue of consent, the agents changed their objections, stating that compelling their production of the requested records would violate their Fifth Amendment Right against self-incrimination, and that the plaintiff’s requests were overly broad and burdensome. The plaintiff moved to compel the production, and the non-party agents moved for a confidentiality order.  The non-party agents argued that their answers to the plaintiff’s production requests would tend to incriminate them because the call logs in question could show a violation of 47 U.SC. § 227(b)(1).

Judge’s Ruling

Noting that the Fifth Amendment “privilege applies specifically to testimony, and not the production of documents, per se”, Judge Sippel stated that “where the documents themselves are incriminating, but their possession, control, and authenticity does not incriminate, the privilege would not apply.”  Continuing, he said:

“In this circumstance, the Agents’ mere possession, production, or authentication of call logs and other documents is not the act that would tend to incriminate them. The Fifth Amendment protection against self-incrimination accordingly does not protect against disclosure of the requested documents because of the ‘settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege.’…The Agents also argue that Gould’s production request is overbroad and burdensome. I disagree. The documents that Gould requests all pertain to whether the Agents texted potential consumers without their consent, and if so, how they did that.”

As a result, Judge Sippel granted the plaintiff’s motion to compel and denied the non-party agents’ motion for a confidentiality order.

So, what do you think?  Should production of potentially incriminating documents be protected under the Fifth Amendment?  Please let us know if 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 Rules that Defendant’s Boilerplate Objections Results in Waiver of Those Objections: eDiscovery Case Law

In Halleen v. Belk, Inc., No. 4:16-CV-55 (E.D. Tex. Aug. 6, 2018), Texas District Judge Amos L. Mazzant, III granted the plaintiffs’ motions in part, ruling that the defendant had waived its objections to the plaintiffs’ RFPs and Interrogatories by including “subject to” or boilerplate language in its responses and also granted the plaintiffs’ request for ESI for identified corporate custodians and 30(b)(6) witnesses.

Case Background

In this Fair Labor Standards Act (“FLSA”) conditionally classified collective action against the defendant over failure to pay overtime compensation, the plaintiffs filed a Motion to Compel Production of Documents and Electronically Stored Information, and Proper, Complete Answers to Interrogatories in March 2018.  In their motion to compel, the plaintiffs requested that the Court compel the defendant to (1) produce all documents responsive to plaintiffs’ Requests for Production (“RFP”), (2) provide complete answers to all Interrogatories, and (3) search and collect, via specified search terms and parameters, all electronically stored information (“ESI”) germane to identified corporate custodians and 30(b)(6) corporate representatives.

The plaintiffs argued that the defendant’s objections to their RFPs and Interrogatories were “deficient, inapplicable, and/or without merit”, but the defendant, whose responses and objections consisted of assertions of privilege or contain “subject to” or boilerplate language, responded that its objections were not only appropriate but necessary to protect itself from Plaintiffs’ abusive discovery requests.  The plaintiffs claimed that the defendant failed to provide a privilege log accompanying its objections, but the defendant contended that it was not withholding any information on the basis of privilege. The plaintiffs also sought an order compelling the defendant to produce ESI for identified corporate custodians and 30(b)(6) witnesses, referencing an exhibit which list search terms, sample percentages, and specific custodians.  In response, the defendant stated that the plaintiffs’ suggested search terms and requests were overly broad and contended that the parties were still working on agreed search terms and have yet to reach an impasse warranting a motion to compel.

Judge’s Ruling

With regard to the defendant’s objections, Judge Mazzant ruled: “The Court finds that Defendant’s inclusion of ‘subject to and without waiving these objections’ is not supported by the federal rules and goes against the purposes of a just, speedy, and inexpensive resolution…Further, by answering questions in such a manner Defendant fails to specify the scope of its answer in relation to the request. This makes it impossible for Plaintiffs or the Court to assess the sufficiency of the response. Therefore, Defendant has waived each objection by including ‘subject to’ or boilerplate language in its responses…As such, Defendant’s failure to specify specific grounds in the objections results in waiver of those objections…As a result, Defendant is ordered to provide amended responses as discussed below.”

With regard to the plaintiffs motion to compel production of specified ESI, Judge Mazzant ruled: “The Court finds that Plaintiffs’ request for ESI as specified in Exhibit 1 to its Reply is appropriate and should be granted. Although Defendant asserts that the parties are not at an impasse, the Court finds that given the ongoing discovery disputes and inability to cooperate the requested relief is necessary. Plaintiffs further request an order requiring Defendant to produce a randomized five percent of content on a share drive from 2013 to the present regarding various divisions of employees, including STMs. Because this request is raised for the first time in Plaintiffs’ reply, the Court declines to grant such relief at this time. Rather, the Court encourages Plaintiffs to confer with Defendant to reach a common ground on the amount of share drive that needs to be produced and for which specific divisions.”

As a result, the defendant was ordered to: 1) provide a privilege log for each assertion of privilege made within seven days, 2) serve upon plaintiffs’ counsel amended, corrected and complete sets of answers to plaintiffs’ Interrogatories and Requests for Production and 3) produce, in TIFF format, the ESI requested by the plaintiffs within two weeks.

So, what do you think?  Should parties be allowed to correct their “boilerplate” objections before they are waived?  Please let us know if 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 Sides with Plaintiff’s Proposal, Orders Random Sample of the Null Set: eDiscovery Case Law

In City of Rockford v. Mallinckrodt ARD Inc., No. 17 CV 50107, No. 18 CV 379 (N.D. Ill. Aug. 7, 2018), Illinois Magistrate Judge Iain D. Johnston adopted the parties’ proposed order establishing the production protocol for ESI with the inclusion of the plaintiffs’ proposal that a random sample of the null set will occur after the production and that any responsive documents found as a result of that process will be produced.

Case Background

In this case involving alleged breach of contract, racketeering and antitrust violations related to the defendant’s prescription medication, the parties agreed on several aspects of discovery, including a plan to use keyword searching and a protocol for agreeing on search terms, date restrictions, and custodian restrictions.  The protocol also addressed the steps to be taken if a party were to dispute a specific term as being overly broad, with the producing party to review a statistically valid sample of documents to determine if the term is returning mostly responsive documents, followed by negotiation as to any modifications to the term, with a plan to submit to the Court if they could not agree.

However, the parties could not agree on what to do after the production.  The defendants’ proposed that if “the requesting party reasonably believes that certain categories of requested documents exist that were not included in the production, the parties will meet and confer to discuss whether additional terms are necessary.”  On the other hand, the plaintiffs proposed a random sample of the null set (the documents not returned via search), with the following specific provision:

“The producing party agrees to quality check the data that does not hit on any terms (the Null Set) by selecting a statistically random sample of documents from the Null Set. The size of the statistically random sample shall be calculated using a confidence level of 95% and a margin of error of 2%. If responsive documents are found during the Null Set review, the producing party agrees to produce the responsive documents separate and apart from the regular production. The parties will then meet and confer to determine if any additional terms, or modifications to existing terms, are needed to ensure substantive, responsive documents are not missed.”

Judge’s Ruling

While noting that “the parties have agreed to use key word searching”, Judge Johnston evaluated the “pros and cons” of keyword searching as compared to technology assisted review (TAR), but ultimately decided that he “will not micromanage the litigation and force TAR onto the parties.”

As for the proposal in dispute, Judge Johnston ruled that sampling the null set is reasonable under Rule 26(g), stating that “Defendants provide no reason establishing that a random sampling of the null set cannot be done when using key word searching. Indeed, sampling the null set when using key word searching provides for validation to defend the search and production process, and was commonly used before the movement towards TAR.”

Judge Johnston also ruled that sampling the null set is proportionate under Rule 26(b)(1), stating: “The Court’s experience and understanding is that a random sample of the null set will not be unreasonably expensive or burdensome. Moreover and critically, Defendants have failed to provide any evidence to support their contention…Indeed, the Court’s experience and understanding is that the random sample will not be voluminous in the context of a case of this magnitude.”  Judge Johnston also cited the issues at stake, the potential amount in controversy, asymmetrical discovery (with the defendants having access to the vast majority of the relevant information), the “substantial resources” of the defendant and that “the burden and expense of a random sampling of the null set does not outweigh its likely benefit of ensuring proper and reasonable – not perfect – document disclosure” all as reasons as to why sampling was proportionate in this case.

As a result, Judge Johnston ordered a random sample of the null set, determining that “Plaintiffs’ proposed 95% confidence level with +/-margin of 2% is acceptable.”

Editor’s Note: It’s worth noting that if you plug the proposed confidence level and margin of error into the Raosoft sample size calculator, you get no more than 2,401 documents that need to be sampled — even if the size of the null set is as large as 10 million documents.  Conducting a random sample is one of the most proportionate activities associated with eDiscovery review.

So, what do you think?  Should random sampling of the null set always be required in cases like this to help confirm a comprehensive search result?  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.

Court Denies Plaintiff’s Request for Native Re-Production by Defendant: eDiscovery Case Law

In Baker v. Santa Clara Univ., No. 17-cv-02213-EJD (VKD) (N.D. Cal. Jul. 31, 2018), California Magistrate Judge Virginia K. Demarchi denied, without prejudice, the plaintiff’s request for an order compelling production of electronically stored documents in native format, finding that the plaintiff “does not have a compelling reason for demanding that SCU (Santa Clara University) re-produce its entire responsive document production in native format simply because she might find something missing.”

Case Background

In this case involving claims of ongoing harassment, discrimination and retaliation by the plaintiff against her employer, the plaintiff served 54 requests for the production of documents in May 2018, with the 54th request to cover the format of production for all documents responsive to the other 53 requests, stating:

“With respect to each request, produce all documents in native format, including electronically stored information, metadata, and all metadata fields. Do not do anything that strips, removes, changes, limits, or otherwise alters the actual electronically stored information and metadata fields of any document that exists in an electronic format. Ensure that all such evidence remains intact, undisturbed, and is produced with each and every electronic document.”

The defendant produced over 2,500 pages of documents in response to the plaintiff’s document requests, but objected to Request No. 54 and produced all documents in .pdf format without metadata. The defendant did not specifically contend that the documents it produced are maintained in .pdf format in the usual course of its business.  As a result, the plaintiff asked for an order requiring the defendant to produce all responsive, electronically stored information in native format.  In requesting the re-production in native format, the plaintiff stated that native format “is very useful in identifying missing `parent emails'[,] `child emails'[,] hidden attachments[,] altered electronic records[,] and other electronic activity having the usefulness of establishing the existence of electronic records that have not been produced.”  In response, the defendant stated, without contradiction, that it attempted to engage the plaintiff’s counsel in a discussion of the search and production of electronically stored information more than a year ago in connection with the parties’ obligations under Rule 26(f), and that the plaintiff’s counsel did not meaningfully engage in the required discussion.

Judge’s Ruling

Judge Demarchi observed that “Neither party has complied with the rules and guidelines that govern the production of electronically stored information”.  Noting that “Rule 34(b)(2) requires a party responding to document requests to object to a requested form of production for electronically stored information, and to state the form or forms of production it intends to use,” Judge Demarchi determined that “while SCU objected to the form of production demanded by Ms. Baker in response to Request No. 54, it did not specify the form of production it intended to use, and it apparently did not organize and label its production to correspond to the categories in Ms. Baker’s requests.”

As for the plaintiff, Judge Demarchi determined that the plaintiff “appears to have utterly failed to comply with the requirements of Rule 26(f) and this Court’s Guidelines for the Discovery of Electronically Stored Information by refusing to meaningfully engage in any discussions early in the case about the search and production of documents stored in electronic format.”

Stating that “The parties now find themselves in a dispute two weeks before the close of fact discovery that might have been avoided had they both complied with their respective and mutual discovery obligations”, Judge Demarchi, while acknowledging that the defendant “has not made any showing that re-producing some or all of its production in native format would be unduly burdensome” stated:

“Ms. Baker’s primary argument for demanding production of documents in native format is that such production might reveal that SCU has not produced all of the documents it should have. SCU’s document production is not particularly voluminous, and Ms. Baker has had nearly a month to review it. Absent a specific, articulable basis for believing SCU has not complied with its discovery obligations, Ms. Baker does not have a compelling reason for demanding that SCU re-produce its entire responsive document production in native format simply because she might find something missing.”

As a result, Judge Demarchi denied the plaintiff’s request without prejudice, stating “If Ms. Baker identifies particular documents or specific categories of documents for which she requires metadata or production in native format, she should make a request for re-production of those documents to SCU, together with an explanation of why re-production is necessary, as SCU has invited her to do already. If the parties cannot agree on whether or to what extent re-production may be necessary or justified, they may bring their dispute before the Court pursuant to the Court’s Standing Order for Civil Cases.”

So, what do you think?  Should the plaintiff’s failure to comply with Rule 26(f) have let the defendant off the hook for failing to comply with Rule 34(b)(2)?  Please let us know if 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.

Metadata from Photos Leads to Dismissal of Case Against New York City: eDiscovery Case Law

In Lawrence v. City of New York, et al., No. 15cv8947 (S.D.N.Y. July 27, 2018), New York Senior District Judge William H. Pauley, III granted in part and denied in part the defendants’ motion for sanctions, ruling to dismiss the case against the defendants, but denying the motion for sanctions against the plaintiff’s counsel and denying the motion for reimbursement of attorney’s fees, stating “an award of attorney’s fees ‘would be a hollow victory … as it would likely be uncollectible.’”

BTW, in addition to exhibiting at ILTACON in National Harbor, MD next week in booth 936, CloudNine will also host a happy hour on Tuesday, August 21 from 4:30 to 6:30pm ET at the National Harbor’s Public House (click here to register).  Come and get to know CloudNine, your provider for LAW PreDiscovery®, Concordance® and the CloudNine™ SaaS platform!  We want to see you!

Case Background

In this case involving claims against the NYPD after an alleged warrantless search of the plaintiff’s home in August 2014, the plaintiff provided photographs that she claimed depicted the condition of her apartment several days after the incident in September 2016.  During a December 2016 deposition, the plaintiff testified that her son or a friend took the photographs two days after the incident, but in a subsequent deposition in April 2017, she indicated that she had taken most of the pictures, that her son had taken a few, and that none of them were taken by the previously described friend.  As a result of the conflicting testimony, the defendants requested the smartphones which the plaintiff claimed were used to take the photos. While the plaintiff’s counsel (Jason Leventhal) objected to that request, he did agree to produce the photographs’ native files, which included metadata.

When the defendants checked the photographs’ metadata, they learned that 67 of the 70 photographs had been taken in September 2016, which was two years after the incident and immediately before the plaintiff provided them to her counsel.  The defendants sent a Rule 11 safe-harbor letter to plaintiff’s counsel, shortly after which he moved to withdraw as counsel, disavowing any prior statements regarding the photographs and his ethics counsel indicated that other events compelled him to withdraw.  While his motion was pending, the plaintiff terminated his representation.  Subsequently, the plaintiff attributed her production of the photos as an accident because she had an eye infection.  After the defendant requested sanctions under FRCP rules 11, 26, and 37, the plaintiff attributed her production of the photos because of mental illness.

Judge’s Ruling

Noting that “the date the photographs were created became apparent only after Leventhal filed suit and Lawrence testified”, Judge Pauley stated that “Based on the evidence supporting Lawrence’s claims, including the 911 call produced in discovery, this Court cannot conclude that Leventhal had a duty to withdraw Lawrence’s claims.”  He ruled similarly with regard to the plaintiff’s conduct regarding Rule 11.

With regard to Rule 26 sanctions, Judge Pauley noted that “Leventhal repeatedly attempted to gain access to the devices containing the photos” and that “a reasonable lawyer would not have doubted that they showed what Lawrence claimed”, so he ruled that “Leventhal’s production of the photos may have been careless, but was not objectively unreasonable.”  As for the plaintiff, Judge Pauley stated: “On the other hand, it is clear that Lawrence, or someone acting on her behalf, created these photographs to bolster her claims, and then she falsely testified about them. Accordingly, sanctions under Rule 26 are appropriate.”

As for Rule 37 sanctions against plaintiff’s counsel, Judge Pauley, in denying the motion, stated: “Leventhal was unaware of Lawrence’s actions and took corrective action after learning that the photographs were taken two years later. Defendants have not shown that Leventhal handled his discovery obligations in an unethical or willfully non-compliant manner.”

However, noting that “Lawrence’s attempts to explain the photographs and her deposition testimony continue a pattern of evasion and untruths” and that her “deceptive conduct and shifting excuses have completely undermined her credibility”, Judge Pauley stated: “Lawrence’s conduct ‘requires that the policy favoring adjudication on the merits yield to the need to preserve the integrity of the courts.’…Accordingly, this case is dismissed.”  However, with regard to the defendants’ request for attorneys fees, Judge Pauley observed that “Lawrence is a widow, rents an apartment, and as of November 2015 was unemployed” and denied the request “as it would likely be uncollectible.”

So, what do you think?  Was dismissal too harsh a sanction here?  Should the plaintiff’s counsel have been held responsible?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Happy Anniversary to my beautiful wife Paige!  I love you honey!

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 Grants Defendant’s Motion to Compel Various Records from Plaintiff in “Slip and Fall” Case: eDiscovery Case Law

In Hinostroza v. Denny’s Inc., No.: 2:17–cv–02561–RFB–NJK (D. Nev. June 29, 2018), Nevada Magistrate Judge Nancy J. Koppe granted the defendant’s motion to compel discovery various sources of ESI related to the plaintiff’s claim of injuries resulting from a “slip and fall” accident at one of the defendant’s restaurants.

Case Background

In March 2018, the defendant requested various releases from Plaintiff to obtain documents regarding her employment, a prior car accident in 2015, and records from medical providers and the plaintiff provided some of the requested releases in the same month.  In April 2018, the parties met and conferred three times regarding the outstanding releases, as well as the plaintiff’s responses to the defendant’s amended second set of requests for production of documents. When the parties were unable to resolve their discovery disputes, the defendant filed the instant motion to compel the outstanding releases and responses to its requests.

Judge’s Ruling

Noting that the “burden is on the party resisting discovery to show why a discovery request should be denied by specifying in detail, as opposed to general and boilerplate objections, why ‘each request is irrelevant’”, Judge Koppe ruled on each of the following sources of ESI requested by the defendant:

  • Copies of any and all documents related to the 2015 car accident the plaintiff identified in your response to Defendant’s Interrogatory No. 18, as well as information regarding two slip and fall accidents in 2012 where the plaintiff was treated by an orthopedist and a neurologist: Judge Koppe said that “Medical records of injuries prior to an alleged accident are relevant to the issue of whether the injuries existed at the time of the accident and whether the accident caused or aggravated the injuries” and also noted that “police reports and insurance records are relevant because they likely contain statements, photographs, or other information ‘to confirm or refute [a plaintiff’s] allegation [he or she] was not injured’ in an accident”. Because “Courts within the Ninth Circuit have found that medical records and reports dating between three years to ten years prior to an alleged accident are discoverable”, Judge Koppe granted the defendant’s request for this information.
  • Copies of any text messages, emails, or other written communications between either the plaintiff or her counsel and several witnesses and a copy of all text messages or emails the plaintiff sent in the 48 hours after the Subject Accident: Noting that “Phone records are discoverable if the request is narrowly tailored in date and time and relates to a key issue in the case”, Judge Koppe granted in part this request.
  • Copies of any [of] the data of any type of FitBit, or other activity tracker device from five (5) years prior to the Subject Accident through the present: Noting that the plaintiff had waived objections that the request was overbroad and unduly burdensome because she did not raise these objections in her initial response to Defendant’s amended second set of requests for production, Judge Koppe ordered the plaintiff to “supplement her response to Defendant’s request for production number 30 to fully describe the search she conducted for responsive documents, by July 20, 2018.”
  • Copies or allow for inspection, any social media account the plaintiff had from five (5) years prior to the Subject Accident through the present: Noting that “information from social media is relevant to claims of emotional distress because social media activity, to an extent, is reflective of an individual’s contemporaneous emotions and mental state”, Judge Koppe found “that social media information and communications are relevant and, thus, discoverable under Fed.R.Civ.P. 26(b)” and granted the defendant’s request for that information.
  • Authorization for the release of the plaintiff’s employment records: Despite the fact that the plaintiff claimed she was no longer pursuing a lost wage claim, Judge Koppe noted that “an amended complaint reflecting Plaintiff’s new claims has not been filed” and also observed that “it appears that Plaintiff’s claims of “limited occupational … activities … [and] loss of earning capacity” remain in her complaint”, so she granted that defendant’s request as well.

So, what do you think?  Did the judge fail to take into account privacy concerns of the plaintiff or should relevancy override privacy concerns in this case?  Please let us know if 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 Denies Defendant’s Motion for Protective Order in Broiler Chicken Case: eDiscovery Case Law

In the In re Broiler Chicken Antitrust Litigation, No. 16 C 8637 (N.D. Ill. July 26, 2018), Illinois Magistrate Judge Jeffrey T. Gilbert denied defendant Agri Stats’ Motion for Protective Order, ruling the defendant “Has Not Made a Threshold Showing” and, the information requested by the End User Consumer Plaintiffs (“EUCPs”) was not reasonably accessible because of undue burden or cost (and, even if they had, the EUCPs showed good cause for requesting custodial searches of ESI, throughout the time frame set forth in the ESI Protocol) and that Agri Stats “Does Not Satisfy the Rule 26(b)(2)(C) Factors” to limit discovery.

Case Background

Prior to this class action lawsuit involving broiler chicken prices, defendant Agri Stats was the subject of a DOJ investigation and claimed it “searched for and produced to the DOJ documents and information like what the EUCPs are requesting”.  Agri Stats ran custodial searches for designated custodians for the period between September 17, 2008 through September 17, 2010, and it produced to the DOJ responsive documents it collected with those searches. But, the time frame for discovery in this case was much broader, extending from January 1, 2007 until September 2, 2016.

Agri Stats argued that it should not be required to run custodial searches of ESI created prior to October 3, 2012 (the date the DOJ investigation closed) for the agreed upon 12 custodians because it ran similar searches for most of those custodians during the DOJ investigation and “requiring it to re-run expensive searches with the EUCPs’ search terms for those same custodians for a broader time period than it already ran is burdensome, disproportionate to the needs of this case, and unreasonable when viewed through the filter of Federal Rule of Civil Procedure 26(b)(2).”

The EUCPs disagreed and contended that Agri Stats should be required, like every other Defendant in this case, to perform the requested searches with the EUCPs’ proposed search terms for the time frame stated in the ESI Protocol, contending that both were broader than what Agri Stats produced for the DOJ investigation.

Judge’s Ruling

Considering the arguments, Judge Gilbert stated:

“The Court agrees with EUCPs. Although Agri Stats conducted custodial searches for a limited two-year period in connection with the DOJ’s investigation of possible agreements to exchange competitively sensitive price and cost information in the broiler, turkey, egg, swine, beef and dairy industries, that investigation focused on different conduct than is at the heart of EUCPs’ allegations in this case, which cover a broader time period than was involved in the DOJ’s investigation. The Court finds that a protective order is not warranted under these circumstances.”

While noting that “Agri Stats says that it already has produced in this case more than 296,000 documents, including approximately 155,000 documents from before October 2012” and that “Agri Stats represents that the estimated cost to run the custodial searches EUCPs propose and to review and produce the ESI is approximately $1.2 to $1.7 million”, Judge Gilbert observed that the “estimated cost, however, is not itemized nor broken down for the Court to understand how it was calculated”.  Judge Gilbert also noted that “EUCPs say they already have agreed, or are working towards agreement, that 2.5 million documents might be excluded from Agri Stats’s review. That leaves approximately 520,000 documents that remain to be reviewed. In addition, EUCPs say they have provided to Agri Stats revised search terms, but Agri Stats has not responded.”

As a result, Judge Gilbert determined that “Agri Stats falls woefully short of satisfying its obligation to show that the information EUCPs are seeking is not reasonably accessible because of undue burden or cost.”  In denying the defendant’s motion, he also ruled that “Even if Agri Stats Had Shown Undue Burden or Cost, EUCPs Have Shown Good Cause for the Production of the Requested ESI and Agri Stats Does Not Satisfy the Rule 26(b)(2)(C) Factors”.

So, what do you think?  Could the defendant have done a better job of showing undue burden and cost?  Please let us know if 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.

Even with Bad Communication and Unfulfilled Discovery Obligations, Sanctions Still Not Granted: eDiscovery Case Law

eDiscovery Case Week concludes today!  We had a great webcast on Wednesday where Tom O’Connor and I discussed key eDiscovery case law for the first half of 2018 – 22 cases in all!  Check it out! – Doug

In US v SuperValu, No. 11-3290 (C.D. Ill. July 12, 2018), Illinois District Judge Richard Mills ruled against sanctions requested by the defendants at this time, even though the relators didn’t “live up to their discovery obligations.”

Case Background

The relators filed this qui tam action alleging the defendants defrauded government healthcare programs by fraudulently reporting inflated Usual and Customary (U&C) pharmacy prices for prescriptions filled for government healthcare program beneficiaries.

In their first amended complaint, the relators claimed they each spoke individually with employees of certain of the defendants’ pharmacies. The defendants alleged the relators relied heavily on these alleged conversations to support their fraud allegation, and that the relators shredded contemporaneous notes of “supposed conversations” with the defendants’ employees. It was also charged that the relators intentionally deleted computer files concerning these conversations and threw away the computer on which the files were stored, thereby precluding examination of the relevant metadata.

On December 20, 2016, the defendants served interrogatories seeking details of the alleged conversations, and the relators identified 19 alleged conversations between employees of the parties. The defendants also requested production which sought, among other things, documents relating to certain phone calls. The relators produced no documents in response to the requests.

Subsequently, the relators’ counsel produced five documents which one of the relators’ employees confirmed were the notes that he made on his home computer concerning phone calls he allegedly made to various defendant pharmacies. He then testified he had no independent recollection of the substance of these calls. The computer on which he prepared the notes “quit working,” and he threw it away after the filing of this lawsuit, which “deleted everything [all documents he prepared on the computer related to this lawsuit] after [he] sent them to counsel.” A number of other notes were also prepared on the computer, and some of the handwritten notes or reports that were the basis for this information were shredded or destroyed.

The relators claimed the defendants made no effort to investigate the matters it addresses in its motion and did not speak to counsel for the relators before filing the motion. They also disputed the defendants’ allegations that “Notes not produced to date have been lost forever, and all metadata reflecting the timing of the creation and editing of even the summaries has likewise been lost and is non-recoverable.”

The relators claimed their counsel has electronic copies of all the notes discussed by defendants in its motion, with metadata, and some copies of Schutte’s handwritten notes. However, the defendants did not ask for these materials. The relators contended that even if certain handwritten notes were destroyed, all relevant information was preserved.

The relators also alleged that a number of these allegedly spoliated documents are protected by the work product doctrine and were not subject to discovery.  The defendants filed a motion for limited sanctions for spoliation of evidence.

Judge’s Ruling

After taking into consideration FRCP 26 and 37, as well as previous case law, Judge Mills ruled:

“In some respects, it appears that the parties are having communication problems. If the documents are simply paper or electronic records of statements made by employees of the defendants, the Court fails to see how such documents could possibly constitute the relators’ work product. Accordingly, those documents should have been turned over to the Defendants upon request, pursuant to Rule 26(b)(3)(C)(ii).”

Judge Mills continued: “The defendants will have an opportunity to question the relators about the alleged conversations, the circumstances under which any notes were prepared, and any other relevant matters, including the destruction of the computer and any metadata that may have been lost. If it comes to light that a party acted inappropriately or in bad faith, the Court will consider imposing sanctions at that time…Although it appears that the Relators may not have lived up to their obligations under the discovery rules, the Court does not believe that the sanctions requested by the Defendants are appropriate at this time.”

So, what do you think? Is this ruling within the correct interpretation of spoliation sanctions under Rule 37? Please share 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.

Court Rules Non-Party Subpoenaed ESI Not Subject to 100-Mile Boundary: eDiscovery Case Week

eDiscovery Case Week continues!  We had a great webcast yesterday where Tom O’Connor and I discussed key eDiscovery case law for the first half of 2018 – 22 cases in all!  Now, on to covering cases for the second half of 2018!  :o)

In Curtis v. Progressive N. Ins. Co., No. CIV-17-1076-C (W.D. Okla. June 13, 2018), Oklahoma District Judge Robin J. Cauthron, noting that the non-party “subpoena at issue does not require the travel or attendance of any witnesses and Plaintiff is requesting the production of electronic documents”, found that “there is no violation of the 100-mile limitation for electronic documents pertaining to Rule 54” and granted the plaintiff’s Motion to Compel Compliance with Subpoena directed to the non-party.

Case Background

In this case where the plaintiff claimed breach of contract, bad faith, unjust enrichment, and fraud against the defendant insurance company over the valuation of the plaintiff’s vehicles after two automobile collisions, the plaintiff served non-party Mitchell International, Inc. with a subpoena duces tecum in March 2018.  The plaintiff requested documents from Mitchell pertaining to “the correspondence, purchase, and analysis of the [computer valuation system]” Mitchell utilized to create valuations of total loss vehicles for the defendant and served Mitchell through its Oklahoma registered agent.  Within two weeks, Mitchell served written objections to Plaintiff’s subpoena.  Subsequent discussion failed to reach a resolution and the plaintiff filed a Motion to Compel Compliance with Subpoena.

The plaintiff argued that her subpoena was valid and enforceable because “a subpoena that commands a person to travel beyond the 100-mile boundary must be quashed however, a Court retains discretion to command compliance with a subpoena for documents which requires production beyond the 100-mile limitation.”  The plaintiff also noted that “[t]he contractual nature of the relationship between Progressive and Mitchell, as well [as] the cost-savings incentives marketed to Progressive by Mitchell are relevant to the claims in this lawsuit . . . concerning the method and manner in which the system operates in creating values for Progressive’s Oklahoma insureds is the fundamental basis of Plaintiff’s claims.”  Mitchell argued that the Court lacked jurisdiction to hear the plaintiff’s motion because Mitchell maintains its headquarters and principal place of business in San Diego and the subpoena demands compliance in Shawnee, Oklahoma.

Judge’s Ruling

Noting that “Federal district courts enjoy broad discretion over discovery measures”, Judge Cauthron, in granting the plaintiff’s motion, stated:

“Here, Plaintiff states—and Mitchell does not dispute—that the information requested can be produced electronically. Mitchell has an Oklahoma registered agent and Progressive Northern Insurance Company continues to use the valuation system licensed and provided by Mitchell in Oklahoma to conduct business. As a result, Mitchell regularly transacts business in Oklahoma. The subpoena at issue does not require the travel or attendance of any witnesses and Plaintiff is requesting the production of electronic documents. This Court finds that there is no violation of the 100-mile limitation for electronic documents pertaining to Rule 54.”

Two weeks later, Judge Cauthron also denied the defendant’s motion to quash the subpoena.

So, what do you think?  Should there even be a 100-mile limitation for discovery?  Please let us know if 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.