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No Sanctions for Spoliation of ESI Against Plaintiff Leads to Summary Judgment Against Defendant: eDiscovery Case Law

We just completed our four part review of case law for 2017 and Tom O’Connor and I discussed important cases for 2017 in our webcast yesterday (click here to check it out).  Now, on to cases to cover for this year…

In IBM v. Naganayagam, No. 15 Civ. 7991 (NSR) (S.D.N.Y. Nov. 21, 2017), New York District Judge Nelson S. Romàn, finding that no intent to deprive by the plaintiff and no prejudice against the defendant for spoliation of ESI, denied the defendant’s motion for spoliation sanctions, which facilitated granting the plaintiff’s motion for summary judgment against the defendant by Judge Romàn.

Case Background

In this action against the defendant (a former employee of the plaintiff who had received several Equity Award Agreements (EAAs) during his employment which the plaintiff sought to rescind once the defendant left his employment to join a competitor), the plaintiff filed a motion for summary judgment in the case and the defendant filed a cross-motion pursuant to Rule 37 of the Federal Rules of Civil Procedure for spoliation sanctions.

On October 31, 2016, the defendant filed a motion to compel production of the plaintiff’s strategic plans for Australia and New Zealand, e-mails related to the defendant’s departure from the plaintiff that were referenced the deposition of the defendant’s former supervisor, a list of the defendant’s accounts, and the defendant’s own e-mails from the course of his employment with the plaintiff.  The court issued an Opinion and Order on December 9, 2016, denying the defendant’s request to compel the production of both his own emails and client account information as well as his supervisor’s emails, finding that the defendant had failed to establish the relevance of these materials. However, the court did rule that the plaintiff was required to produce the strategic plans generated by the plaintiff delineating their competitors.  After the plaintiff indicated it was unable to locate the strategy plans, the plaintiff filed a motion for summary judgment in January 2017 and the defendant filed a cross-motion for adverse inference spoliation sanctions ten days later.

Judge’s Ruling

When considering the defendant’s request for sanctions, Judge Romàn noted that “Although the more lenient sanctions standard under Rule 37(e) did not go into effect until after Plaintiff filed the Complaint in the present action, the amended Rule 37(e) can apply retroactively”, observing that the Order included by Chief Justice Roberts (when transmitting the new Rule to Congress) indicated that it would govern “insofar as just and practicable, all proceedings then pending.”

Noting that “amended Rule 37(e) only allows for adverse inference sanctions where the non-movant acted intentionally to deprive another party use of the ESI during litigation”, Judge Romàn, observing that “Defendant merely alleges that Plaintiff acted negligently rather than intentionally”, denied the request for adverse inference sanctions against the plaintiff.  Also, determining that a lack of prejudice against the defendant for any potential spoliation, Judge Romàn ruled that “less severe spoliation sanctions are similarly unwarranted” and denied the defendant’s motion for spoliation sanctions.  With that considered, Judge Romàn found that “there is no genuine dispute of material fact regarding Defendant’s breach of the Plan and EAAs”, and granted the plaintiff’s motion for summary judgment.

So, what do you think?  Should the court have ruled it differently?  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.

2017 eDiscovery Case Law Year in Review, Part 4

As we noted yesterday, Tuesday and Monday, eDiscovery Daily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to possession, custody and control, subpoena of cloud provider data, waiver of privilege and the first part of the cases relating to sanctions and spoliation.  Today, let’s take a look back at the remaining sanctions and spoliation cases.

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!

But first, it’s also worth noting that Tom O’Connor and I will be discussing some of these cases – and what the legal profession can learn from those rulings – on TODAY’S webcast Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

SPOLIATION / SANCTIONS

Here are the remaining fifteen cases related to spoliation and sanctions below:

Court Says Rule 37(e) Doesn’t Apply When Recording Was Intentionally Deleted: In Hsueh v. N.Y. State Dep’t of Fin. Services, New York District Judge Paul A. Crotty relied upon inherent authority to impose sanctions and determined “that an adverse inference is the appropriate remedy” for the plaintiff’s deletion of a recorded conversation with an HR representative, agreeing with the defendants that “Rule 37(e) applies only to situations where ‘a party failed to take reasonable steps to preserve’ ESI; not to situations where, as here, a party intentionally deleted the recording.”

Court Grants Summary Judgment After Plaintiff’s Spoliation Motion Denied: In Taylor v. Thrifty Payless, Inc., d/b/a Rite-Aid, Oregon District Judge Marco A. Hernandez granted the defendant’s motion for summary judgment after denying the plaintiff’s request for spoliation sanctions against the defendant for failing to preserve store videos that were taken on the day of her slip and fall in the defendant’s store.

Court Grants Motion for Terminating Sanctions Against Defendants for Intentional Spoliation: In Omnigen Research et. al. v. Wang et. al., Oregon District Judge Michael J. McShane granted the plaintiffs’ Motion for Terminating Spoliation Sanctions and agreed to issue an Order of Default Judgment in favor of the plaintiffs (while dismissing the defendants’ counterclaims) due to the defendants’ intentional destruction of evidence on several occasions.

With Ample Evidence of Bad Faith, Court Sanctions Defendant for Failure to Produce Documents: In CrossFit, Inc. v. Nat’l Strength and Conditioning Assn., California District Judge Janis L. Sammartino granted the plaintiff’s motion for several issue, evidentiary, and monetary sanctions, but denied the plaintiff’s request for terminating sanctions due to the defendant’s bad faith that resulted in the defendant’s failure to produce documents.

Court Declines to Impose Sanctions for Failure to Preserve Web History: In Eshelman v. Puma Biotechnology, Inc., North Carolina Magistrate Judge Robert B. Jones, Jr., among other rulings, denied the plaintiff’s motion for an order permitting a jury instruction in response to the defendant’s failure to preserve certain internet web browser and search histories, concluding that the plaintiff “is not entitled to a sanction pursuant to Rule 37(e)(1)” and that the plaintiff “is not entitled to an adverse jury instruction as a sanction pursuant to Rule 37(e)(2).”

Defendant Not Sanctioned Despite Use of Evidence Wiping Software: In HCC Ins. Holdings, Inc. v. Flowers, Georgia District Judge William S. Duffey, Jr. denied the plaintiff’s motion for adverse inference sanctions despite evidence that the defendant had used evidence wiping software twice after being ordered to produce her personal computer, stating that the plaintiff “offers only bare speculation that any of its trade secrets or other data were actually transferred” to the defendant’s laptop.

Plaintiff Sanctioned for Spoliation of Evidence in His Case Against Taylor Swift: In Mueller v. Swift, Colorado District Judge William J. Martinez ruled that “Plaintiff’s loss or destruction of the complete recording of the June 3, 2013 conversation [between the plaintiff and his supervisors] constitutes sanctionable spoliation of evidence”, but rejected the defendants’ request to make a finding of bad faith and to give the jury an adverse inference instruction, opting instead for permitting the defendants to cross-examine the plaintiff in front of the jury regarding the record of his spoliation of evidence.

Court Grants Defendant’s Request for $18.5 Million in Attorney Fees and Costs: In Procaps S.A. v. Patheon Inc., Florida District Judge Jonathan Goodman, in a very lengthy ruling, granted the defendant’s supplemental motion for attorney’s fees and non-taxable costs in the full amount requested of $18,494.846.  We’ve covered this case several times over more than three years.

Court Grants Lesser Sanctions Against Defendant for Various Discovery Issues: In New Mexico Oncology v. Presbyterian Healthcare Servs., New Mexico Magistrate Judge Gregory B. Wormuth, detailing numerous defendant discovery deficiencies alleged by the plaintiff, ruled that the “harsh sanctions of default judgment or an adverse jury instruction” requested by the plaintiff “are not warranted” and instead opted to require the defendant to pay plaintiff costs related to activities resulting from defendants’ over-designation of documents as privileged and recommended that the defendants be ordered to pay the plaintiff 75% of the costs associated with its Motion for Sanctions including all fees paid to expert witnesses to prepare reports and testify at the motion hearing.

Court Opts for Lesser Sanction for Failure to Preserve Electronic Vehicle Data: In Barry v. Big M Transportation, Inc., et al., Alabama Chief Magistrate Judge John E. Ott denied the plaintiffs’ request for default judgment sanctions for failing to preserve a tractor-trailer involved in an automobile accident and its “Electronic Data/Electronic Control Module (ECM) Vehicle Data Recorder/Black Box” and the data associated with the ECM device.  As an alternative sanction, Judge Ott indicated the intent to tell the jury that the ECM data was not preserved and to allow the parties to present evidence and argument at trial regarding the defendant’s failure to preserve the data.

Plaintiff Sanctioned for Preserving Only Scanned Copy of Journal and Destroying the Original: In Mitcham v. Americold Logistics, LLC, Colorado Magistrate Judge Nina Y. Wang granted (in part) the defendant’s motion for sanctions for the plaintiff’s delay in producing a copy of a journal she kept while employed by the defendant and for her failure to produce the original copy of the journal by granting leave to re-open the plaintiff’s deposition for an additional two hours to examine the plaintiff about the journal and associated fees and expenses, but denied the defendant’s request for fees and expenses associated with the filing of the instant Motion and denied the defendant’s request for an adverse inference instruction.

Court Characterizes Plaintiff’s Request for Spoliation of Images Still Available as “Frivolous”: In Barcroft Media, Ltd. et al. v. Coed Media Grp., LLC, New York District Judge Jesse M. Furman denied the Plaintiffs’ motion for spoliation sanctions for failing to preserve web pages containing disputed images, and motion in limine to preclude the testimony of a defense expert witness for failing to list him in the defendant’s initial disclosures.

Court Denies Default Judgment Sanctions for Defendant’s Production of Two Versions of Same Email: In Catrinar v. Wynnestone Communities Corp., et al., Michigan Magistrate Judge R. Steven Whalen denied the plaintiff’s Motion for Discovery Sanctions (requesting a default judgment) for fabricating and producing false evidence, finding that the defendant’s production of two versions of an email fail all four factors of the Harmon test applied by the court in this case to determine whether the defendant’s failure was due to willfulness, bad faith, or fault and whether the plaintiff was prejudiced by the defendant’s conduct, among other factors.

Houston, We Have a Problem – Court Specifies Jury Instructions to Address Spoliation Findings: In GN Netcom, Inc. v. Plantronics, Inc., Delaware District Judge Leonard P. Stark chose to determine the preliminary and final jury instructions he would give with respect to the defendant’s spoliation for the “intentional and admitted deletion of emails” ruled on earlier, as well as the “Stipulated Facts” he would read to the jury at or near the start of the trial, rather than respond to the four spoliation-related questions posed by the plaintiff or defendant.

Dispute Over Scope of Preservation Obligation Leads to Partial Sanctions For Now: In E.E.O.C. v. GMRI, Inc., Florida Magistrate Judge Jonathan Goodman, in a very lengthy and detailed order, denied in part and granted in part the plaintiff’s motion for sanctions for spoliation of paper applications, interview booklets, and emails.  Judge Goodman did not grant the request for most-severe type of relief sought – permissible inferences at the summary judgment and trial stages – but did rule that the plaintiff could “present evidence of the purportedly destroyed and/or missing paper applications, interview booklets and guides, and emails to the jury” and “argue to the jury that Seasons 52 acted in bad faith (as defined by Rule 37(e)(2))”, which could lead to the jury inferring that the lost ESI was unfavorable to the defendant.

That’s it for this year’s review.  Tomorrow, we get started on cases we plan to cover this year!  Stay tuned!

Want to take a look at cases we covered the previous six 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.

2017 eDiscovery Case Law Year in Review, Part 1

Once again, it’s time for our annual review of eDiscovery case law!  This is our seventh 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 six(!) years, let’s take a look back at 2017!

Last year, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  We’ve had nearly 600 lifetime case law related posts, covering over 440 unique cases since our inception back in 2010.  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, 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).  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 be discussing some of these cases – and what the legal profession can learn from those rulings – on Thursday’s webcast Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

And, here we go…

ADMISSIBILITY, PROPORTIONALITY AND COOPERATION

Can’t we all just get along?  Again this year, there were plenty of disputes the scope and content of production.  Oh, and how would you like to have $10M shaved off your bill for document review?  Here are fourteen cases related to admissibility of ESI and the proportionality for preserving and producing that ESI:

Judge Cuts Over $10M from Attorney Fees Due to Use of Temporary Attorneys for Document Review: The use of temporary associates for document review (and billing at normal staff associate rates) caused a federal judge in Manhattan to reduce the request for attorney fees by $10.3 million in a settlement of a securities case against Bank of America.

Court Defines Narrowed Scope for Requests for Social Media Data: In Scott v. United States Postal Service, Louisiana Magistrate Judge Erin Wilder-Doomes granted the defendant’s Motion to Compel Discovery in part, ordering the plaintiff to provide complete responses to the defendant’s interrogatory and request for production, but only after she limited the scope of both requests, determining them to be “overly broad”.

Court Denies Untimely Motion to Compel Production of Text Messages: In Healthwerks, Inc. et. al. v. Stryker Spine, et. al., Wisconsin District Judge Pamela Pepper denied a motion to compel production of text messages issued by the plaintiffs and third party defendants against the defendant Stryker, agreeing with Stryker that filing the motion almost six months after discovery had closed was untimely.

Lack of Cooperation Leads to Court to Order Scope of Discovery for Defendant: In Bird v. Wells Fargo Bank, after the parties could not agree on the parameters and scope of discovery, California Magistrate Judge Erica P. Grosjean ordered the defendant to produce several categories of documents related to the plaintiff’s former employment, disclose its discovery plan, search terms and custodians, produce its document retention policies regarding the destruction of employee emails and produce an initial privilege log.

Court Approves Defendant’s Proposed Random Sampling Production Plan: In Duffy v. Lawrence Memorial Hospital, Kansas Magistrate Judge Teresa J. James granted the Motion to Modify Discovery Order from the defendant (and counterclaimant), where it asked the Court to enter a protective order directing it to produce a random sampling of 252 patient records, along with five spares, in order to respond to the plaintiff/relator’s document requests.

Despite Parties’ “Significant Animosity”, Court Orders Them to Meet and Confer: In Elhannon LLC v. F.A. Bartlett Tree Expert Co., Vermont District Judge William K. Sessions, III granted in part and denied in part the plaintiff’s renewed motion to compel, denied motions for sanction by each party against the other, and ordered the parties to engage in further meet-and-confer efforts to narrow their differences on the appropriate scope of discovery.

Court Limits Burden for Defendant to Search Loan Numbers, Splits Costs Between Parties: In Phoenix Light SF Ltd. v. Deutsche Bank Nat’l Trust Co., New York Magistrate Judge Debra Freeman granted the plaintiffs’ motion to compel in part, ordering the defendant to search for 16,000 loan numbers proposed by the plaintiffs’ and ordered the parties to split the costs for performing the searches.

Plaintiff Can Review Documents Deemed as Non-Responsive, But Has to Bear its Own Costs: In Nachurs Alpine Solutions, Corp. v. Banks, Iowa Chief Magistrate Judge C. J. Williams granted in part and denied in part the plaintiff’s motion to compel ESI discovery, by ordering the defendants to produce all of the ESI documents it identified as unresponsive under an Attorneys Eyes Only label and that the plaintiff bear its own costs of reviewing the documents for the categories it believes may hold relevant documents.

Court Denies Plaintiff’s Request for Defendant’s Source Code Production: In Congoo, LLC v. Revcontent LLC, et al, New Jersey Magistrate Judge Tonianne J. Bongiovanni, finding that the plaintiff “has not met its burden of demonstrating that production of the source code is relevant and necessary”, denied the plaintiff’s Motion to Compel the inspection and production of the defendants’ source code.

Defendant’s Request for Social Media Data is Reasonably Calculated to Be Overbroad: In Ehrenberg v. State Farm Mut. Auto. Ins. Co., Louisiana Magistrate Judge Janis van Meerveld, rejecting the defendant’s request for the plaintiff’s social media data as “reasonably calculated to lead to the discovery of admissible evidence”, identified a level of social media data to be produced by the plaintiff that considered “weighing relevance and proportionality”.

Court Adds Some of the Custodians Requested by Plaintiffs to Discovery, But Not All: In Mann, et al. v. City of Chicago, et al, Illinois Magistrate Judge Mary M. Rowland granted in part and denied in part the plaintiffs’ Motion to Compel the defendant to include certain custodians in their email search, ordering the defendant to search emails of five additional custodians (including the Mayor of Chicago), but not requiring the defendant to search emails for an additional three custodians requested by the plaintiff.  Judge Rowland also denied the plaintiffs’ request for sanctions, finding that the defendant’s conduct was not sanctionable.

Court Denies Motions to Compel Against Various Defendants, For Various Reasons: In Blosser v. Ashcroft, Inc., et al., Washington District Judge Benjamin H. Settle settled this dispute for now between the plaintiffs and three defendants over discovery disputes by denying the plaintiffs’ motions to compel against all three defendants, two of them without prejudice.

Court Chastises Parties for Turning Case into a “Discovery Slugfest”: In UnitedHealthcare of Fla., Inc. et al. v. Am. Renal Assoc., Inc. et al., Florida Magistrate Judge William Matthewman granted in part and denied in part the plaintiffs’ Motion for Reconsideration or Modification of Omnibus Discovery Order, clarifying the Court’s previous order regarding custodians and search terms, while denying the remainder of the plaintiff’s motion.  Judge Matthewman also chastised both parties for their lack of cooperation on search terms.

No Dismissal of Claim Against Defendant Accused of Transferring Company Info to Dropbox Account: In Abbott Labs. v. Finkel, Colorado District Judge Christine M. Arguello denied the defendant-movant’s motion to dismiss the plaintiff-respondent’s conversion claim that the defendant disclosed the plaintiff’s confidential information and trade secrets to a third party and transferred that information to his personal online cloud storage Dropbox account.

EDISCOVERY COST REIMBURSEMENT

We usually have at least a couple of rulings related to reimbursement of eDiscovery costs and legal fees, but we don’t usually get a SCOTUS decision in the mix.  Here are two cases related to eDiscovery cost and legal fee reimbursement.

SCOTUS Reverses and Remands Circuit Court Award of Fees for Discovery Misconduct: In Goodyear Tire & Rubber Co. v. Haeger, the Supreme Court of the United States, in a decision delivered by Justice Kagan reversed and remanded the decision by the US Court of Appeals, Ninth Circuit, for further proceedings, stating that “because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.”

Court Grants Most of Plaintiff’s Cost Recovery Request, Including All eDiscovery Costs: In Ariel Inv., LLC v. Ariel Capital Advisors LLC, Illinois District Judge Matthew F. Kennelly granted the prevailing plaintiff’s request to tax most requested costs in the amount of $99,378.32, including the entire amount ($85,666.51) requested for reimbursement for eDiscovery costs.

We’re just getting started!  Tomorrow, we will cover cases related to discovery about discovery, technology assisted review, form of production disputes, objections to production requests and an interesting dispute between an eDiscovery provider and their former sales people.  Stay tuned!

Want to take a look at cases we covered the previous six 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.

Clawback Agreement Doesn’t Save Documents Inadvertently Produced Twice from Privilege Waiver: eDiscovery Case Law

This is another case from earlier this year that we never got around to covering.  Why are we catching up on covering cases this week?  Find out tomorrow… :o)

In Irth Solutions, LLC v. Windstream Communications LLC, No. 2:16-CV-219 (S.D. Ohio Aug. 2, 2017), Ohio Magistrate Judge Kimberly A. Jolson, rejecting the idea that a clawback agreement always protects against waiver of privilege for inadvertently disclosed materials, found that privilege was waived by the defendant’s inadvertent but “completely reckless” production of privileged materials – not once, but twice.

Case Background

In this breach of contract case, the parties “agreed that a formal court order under Fed. R. Evid. 502(d) was not necessary based on the scale of the case”, but did enter into a clawback agreement that included a provision that “[i]nadvertent production of privileged documents does not operate as a waiver of that privilege.”  During discovery, the defendant produced 2,200 hundred pages which inadvertently included 43 privileged documents totaling 146 pages.  Defense counsel realized the mistake twelve days later while preparing a privilege log and immediately sought to claw the documents back, but plaintiff’s counsel refused to return or destroy the documents; however, they did represent that once the dispute arose, they sequestered the documents and refrained from discussing them with their client.

As requested by the Court, defense counsel submitted the 43 documents for in camera inspection, which revealed that nearly a third of them (14 documents) contained the word “legal” and the signature block of in-house counsel was referenced in two others.  Nonetheless, defense counsel insisted the documents had been reviewed for privilege.

Then, six weeks later, while dispute over the first production “ensued”, the defendant once again produced the 43 privileged documents to the plaintiff as part of re-producing the same 2,200 pages because the first production wasn’t text searchable.  Defense counsel indicated that they performed a “spot check” of the documents before they were produced via FTP, but did not observe that they contained the same privileged documents from the original production.

Judge’s Ruling

Judge Jolson, while noting that she did not get to hear from the “second-year associate who allegedly performed the privilege review prior to the first production and the litigation support staff member who allegedly erred during the second production”, nonetheless assumed “arguendo, that Defendant has met its burden of showing that the two productions qualify as inadvertent.”

Judge Jolson then turned to the “impact” of the parties’ clawback agreement on the question of waiver, citing three frameworks applied by other courts: “(1) if a clawback is in place, it always trumps Rule 502(b); (2) a clawback agreement trumps Rule 502(b) unless the document production itself was completely reckless; and (3) a clawback agreement trumps Rule 502(b) only if the agreement provides concrete directives regarding each prong of Rule 502(b)”.

Rejecting the first approach as it would “undermine the lawyer’s responsibility to protect the sanctity of the attorney-client privilege”, Judge Jolson then considered the second and third frameworks.  Determining that defense counsel “reviewed a limited number of documents and made critical and reckless mistakes”, Judge Jolson stated that she “need not choose” between the second and third frameworks because “when taking into account the careless privilege review, coupled with the brief and perfunctory clawback agreement, following either approach leads to the same result: Defendant has waived the privilege.”  As a result, Judge Jolson ruled that the defendant had waived privileged on the twice inadvertently produced documents.

So, what do you think?  Should clawback agreements protect parties from any inadvertent disclosure?  Would a 502(d) order have protected the defendant here?  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.

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 Issues Adverse Inference Sanction for Failing to Preserve Non Party’s Text Messages: eDiscovery Case Law

This is a case from earlier this year that we never got around to covering.  It’s hard to believe that it’s been over 40 years since the Lynyrd Skynyrd plane crash that took the life of lead singer and guitarist Ronnie Van Zant and five other people.  To read a retrospective on one of rock music’s most notable airplane disasters, here’s a terrific article from Rolling Stone.  To check out case law that relates to use of the band’s name – less dramatic, but still interesting (at least to some of us), read below.

In Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS) (S.D.N.Y. Aug. 28, 2017), New York District Judge Robert W. Sweet, among other rulings, issued an adverse inference sanction against one of the defendants for its failure to preserve text messages in the possession of a non-party, finding that defendant had control of the non-party’s text messages, given that he was contracted by the defendant and provided documents and gave a deposition during discovery.

Case Background

In this dispute over alleged violation of a Consent Order (which controlled the circumstances under which surviving band members could use the name Lynyrd Skynyrd) and efforts by Cleopatra Records to make a film about the crash (working with Artimus Pyle, the drummer for Lynyrd Skynyrd and a survivor of the 1977 crash, who was a signatory “under protest” to the Consent Order), the plaintiffs initially sent a cease and desist letter and ultimately filed suit against Pyle and Cleopatra alleging violation of the Consent Order.

Several weeks after the suit was filed and after filming of the disputed movie, Jared Cohn (who had been hired by Cleopatra as the director and screenwriter, but was a non-party to the litigation), switched cell phone providers and acquired a new phone.  Some data, such as pictures, were transferred while other data, such as text messages (including those exchanged with Pyle) was not transferred and was lost.  As a result, the plaintiffs sought an adverse inference sanction against Cleopatra for failure to preserve the text messages.

In response to the plaintiffs’ motion, Cleopatra argued that it could not be sanctioned for a non-party’s actions and that the phone was not within its control, that the plaintiffs’ had not issued a valid subpoena and that the plaintiffs had not shown prejudice because they could have acquired the text messages from Pyle and because Defendants have produced a large number of other documents, rendering the missing messages cumulative.

Judge’s Ruling

With regard to Cleopatra’s argument regarding lack of control over the text messages, Judge Sweet stated: “Here, while Cohn is a non-party, his text messages were, practically speaking, under Cleopatra’s control. Cohn was contracted by Cleopatra to work on the Film, and the evidence has establishes that he worked closely with Cleopatra for over the past year. Over the course of the instant litigation, Cohn has participated by providing documents and took a deposition sought by Plaintiffs during discovery…As has been found relevant in other cases determining the relationship between a party and non-parties, Cohn also has a financial interest in the outcome of this litigation, since he is entitled to a percentage of the Film’s net receipts, which would be zero should Plaintiffs prevail…In sum, while determining practical control is not an exact science, ‘common sense’ indicates that Cohn’s texts with Pyle were within Cleopatra’s control, and in the face of pending litigation over Pyle’s role in the Film, should have been preserved.”

Judge Sweet also rejected the argument that a subpoena was required, noting “what the rules require is independent of a proper subpoena and simply that the lost information ‘should have been preserved,’ and there has been no dispute that the missing texts would have been relevant to the instant matter.”  He also rejected the lack of prejudice argument, indicating that, of the evidence already produced by Cleopatra, “none speak directly to an important piece of this puzzle that would have been covered by the texts: the quality of interaction between Pyle, the Consent Order’s signatory, and Cohn, the principal writer and singular director of the Film, a relationship that evidence established was principally developed through text messages.”  In granting the motion for adverse inference sanction, Judge Sweet noted that Cohn’s actions of retaining his pictures but not his text messages “evince the kind of deliberate behavior that sanctions are intended to prevent and weigh in favor of an adverse inference.”

So, what do you think?  Should the defendant have been sanctioned for the actions of a non-party?  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.

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 Disagrees with Plaintiff’s Contentions that Defendant’s TAR Process is Defective: eDiscovery Case Law

In Winfield, et al. v. City of New York, No. 15-CV-05236 (LTS) (KHP) (S.D.N.Y. Nov. 27, 2017), New York Magistrate Judge Katharine H. Parker, after conducting an in camera review of the defendant’s TAR process and a sample set of documents, granted in part and denied in part the plaintiffs’ motion, ordering the defendant to provide copies of specific documents where the parties disagreed on their responsiveness and a random sample of 300 additional documents deemed non-responsive by the defendant.  Judge Parker denied the plaintiff’s request for information about the defendant’s TAR process, finding no evidence of gross negligence or unreasonableness in their process.

Case Background

In this dispute over alleged discrimination in the City’s affordable housing program, the parties had numerous disputes over the handling of discovery by the defendant in the case.  The plaintiffs lodged numerous complaints about the pace of discovery and document review, which initially involved only manual linear review of documents, so the Court directed the defendant to complete linear review as to certain custodians and begin using Technology Assisted Review (“TAR”) software for the rest of the collection.  After a dispute over the search terms selected for use, the plaintiffs proposed over 800 additional search terms to be run on certain custodians, most of which (after negotiation) were accepted by the defendant (despite a stated additional cost of $248,000 to review the documents).

The defendant proposed to use its TAR software for this review, but the plaintiffs objected, contending that the defendant had over-designated documents as privileged and non-responsive, using an “impermissibly narrow view of responsiveness” during its review process.  To support its contention, the plaintiffs produced certain documents to the Court that the defendant produced inadvertently (including 5 inadvertently produced slip sheets of documents not produced), which they contended should have been marked responsive and relevant.  As a result, the Court required the defendant to submit a letter for in camera review describing its predictive coding process and training for document reviewers.  The Court also required the defendant to provide a privilege log for a sample set of 80 documents that it designated as privileged in its initial review.  Out of those 80 documents, the defendant maintained its original privilege assertions over only 20 documents, finding 36 of them non-privileged and producing them as responsive and another 15 of them as non-responsive.

As a result, the plaintiffs filed a motion requesting random samples of several categories of documents and also sought information about the TAR ranking system used by the defendant and all materials submitted by the defendant for the Court’s in camera review relating to predictive coding.

Judge’s Ruling

Judge Parker noted that both parties did “misconstrue the Court’s rulings during the February 16, 2017 conference” and ordered the defendant to “expand its search for documents responsive to Plaintiffs’ document requests as it construed this Court’s prior ruling too narrowly”, indicating that the plaintiffs should meet and confer with the defendant after reviewing the additional production if they “believe that the City impermissibly withheld documents responsive to specific requests”.

As for the plaintiffs’ challenges to the defendant’s TAR process, Judge Parker referenced Hyles v. New York City, where Judge Andrew Peck, referencing Sedona Principle 6, stated the producing party is in the best position to “evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”  Judge Parker also noted that “[c]ourts are split as to the degree of transparency required by the producing party as to its predictive coding process”, citing cases that considered seed sets as work product and other cases that supported transparency of seed sets.  Relying on her in camera review of the materials provided by the defendant, Judge Parker concluded “that the City appropriately trained and utilized its TAR system”, noting that the defendant’s seed set “included over 7,200 documents that were reviewed by the City’s document review team and marked as responsive or non-responsive in order to train the system” and that “the City provided detailed training to its document review team as to the issues in the case.”

As a result, Judge Parker ordered the defendant “to produce the five ‘slip-sheeted’ documents and the 15 NR {non-responsive documents reclassified from privileged} Documents”, “to provide to Plaintiffs a sample of 300 non-privileged documents in total from the HPD custodians and the Mayor’s Office” and to “provide Plaintiffs with a random sample of 100 non-privileged, non-responsive documents in total from the DCP/Banks review population” (after applying the plaintiffs’ search terms and utilizing TAR on that collection).  Judge Parker ordered the parties to meet and confer on any disputes “with the understanding that reasonableness and proportionality, not perfection and scorched-earth, must be their guiding principles.”  Judge Parker denied the plaintiffs’ request for information about the defendant’s TAR process (but “encouraged” the defendant to share information with the plaintiffs) and denied the plaintiffs’ request to the defendant’s in camera submissions as being protected by the work product privilege.

So, what do you think?  Should TAR ranking systems and seed sets be considered work product or should they be transparent?  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.

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.

Dispute Over Scope of Preservation Obligation Leads to Partial Sanctions For Now: eDiscovery Case Law

In E.E.O.C. v. GMRI, Inc., No. 15-20561-CIV-LENARD/GOODMAN (S.D. Fla. Nov. 1, 2017), Florida Magistrate Judge Jonathan Goodman, in a very lengthy and detailed order, denied in part and granted in part the plaintiff’s motion for sanctions for spoliation of paper applications, interview booklets, and emails.  Judge Goodman did not grant the request for most-severe type of relief sought – permissible inferences at the summary judgment and trial stages – but did rule that the plaintiff could “present evidence of the purportedly destroyed and/or missing paper applications, interview booklets and guides, and emails to the jury” and “argue to the jury that Seasons 52 acted in bad faith (as defined by Rule 37(e)(2))”, which could lead to the jury inferring that the lost ESI was unfavorable to the defendant.

Case Background

In this age discrimination case filed by the Equal Employment Opportunity Commission (EEOC) against the defendant owner of a chain of restaurants, the investigation by the EEOC began as an investigation of two employee complaints against the defendant’s Coral Gables restaurant location in late 2010.  At that time, the EEOC notified Seasons 52 (the restaurant chain owned by the defendant) of the charges and explained the EEOC’s recordkeeping regulations.  Then, on August 31, 2011, the EEOC issued an “expansion letter” and notified Seasons 52 that it was expanding the investigation to include Seasons 52’s hiring practices throughout the nation as they affect a class of individuals, applicants for employment, because of their ages.  The EEOC also sent a follow-up letter, dated the next day, which requested additional information and which referenced “expansion” of the case.  In July 2013, the EEOC issued Letters of Determination finding that Seasons 52 had engaged in age discrimination and filed its complaint in February 2015.

However, there was dispute over the August 31 2011 letter, which the defendant, (during an October 11, 2017 evidentiary hearing) claimed it never received.  The defendant acknowledged it did receive the September 1 2011 letter.  Nonetheless, the defendant contended that it was under a duty to preserve for only one restaurant in Coral Gables because the two complaints that triggered the EEOC investigation concerned that sole location. However, the plaintiff contended that Seasons 52 had a duty to preserve for all restaurants in the country because the scope of the investigation expanded into a national investigation encompassing all Seasons 52 restaurants.  So, while the defendant issued a litigation hold in Coral Gables in December 2010, it did not issue litigation holds for other locations until at least May 2015.  As a result, the defendant failed to preserve paper applications, interview booklets and emails in most of its locations (the order has WAY more detail on the extent of the failure to preserve).

Stating that the plaintiff “has come up empty handed”, the defendant filed a summary judgment motion and the plaintiff filed its motion for sanctions shortly thereafter, which the defendant contended was a last minute attempt to save the case.

Judge’s Ruling

Judge Goodman began by referencing a song from John Hiatt, who wrote a song released in 1995 called Shredding the Document, as being “at the heart of the sanctions motion being considered here”.  He rejected the defendant’s argument that the plaintiff’s motion was in direct response to the defendant’s summary judgment motion, noting that it was filed only two days after and it was “highly likely” that the plaintiff began preparing the sanctions motion long before it received the defendant’s summary judgment motion.

With regard to the dispute over the August 31 2011 letter, Judge Goodman, observing that “Seasons 52’s witnesses unequivocally testified that they never received it and that their records and databases do not contain it”, that “they concede receipt of other letters” and that the zip code on the letter was incorrect, ruled: “The EEOC has not established by a preponderance of the evidence that Seasons 52 received the so-called August 31, 2011 expansion letter.”

However, noting that “The September 1, 2011 letter made explicit reference to an ‘expansion’ of the case, and Seasons 52 was regularly forwarding information about 10 restaurants and then added another restaurant…to the ongoing production”, Judge Goodman found that “Seasons 52 was therefore under a duty to preserve relevant materials for those 11 restaurants” and found their “lack of logical follow-through to be unacceptable.”

Noting that “the EEOC’s expert witness was still able to reach conclusions even without certain paper applications and interview booklets”, Judge Goodman determined that “some prejudice” had occurred, but that “Seasons 52 certainly has a logical argument that the missing materials were not critical or crucial to the EEOC’s case, which is why the Undersigned is not now granting the EEOC harsh-type sanctions like a permissible adverse inference.”  As a result, Judge Goodman did not grant the request for most-severe type of relief sought – permissible inferences at the summary judgment and trial stages – but did rule that the plaintiff could “present evidence of the purportedly destroyed and/or missing paper applications, interview booklets and guides, and emails to the jury” and “argue to the jury that Seasons 52 acted in bad faith (as defined by Rule 37(e)(2))”, which could lead to the jury inferring that the lost ESI was unfavorable to the defendant.

So, what do you think?  Should juries decide spoliation is unfavorable to a party without judicial instructions to that effect?  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.

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.

No Dismissal of Claim Against Defendant Accused of Transferring Company Info to Dropbox Account: eDiscovery Case Law

In Abbott Labs. v. Finkel, No. 17-cv-00894-CMA (D. Colo. Nov. 17, 2017), Colorado District Judge Christine M. Arguello denied the defendant-movant’s motion to dismiss the plaintiff-respondent’s conversion claim that the defendant disclosed the plaintiff’s confidential information and trade secrets to a third party and transferred that information to his personal online cloud storage Dropbox account.

Case Background

In December 2014, the plaintiff hired the defendant as a General Manager for its Nutrition Division, where he received access to its confidential information and trade secrets.  To protect its confidential information and trade secrets, the plaintiff required the defendant to sign confidentiality and non-disclosure agreements and its Electronic Messages policy prohibited the defendant from backing up or storing digital information on personal devices and also prohibited sharing info with outside parties.  Despite that, during the defendant’s employment, he both disclosed plaintiff confidential information and trade secrets to a third party and transferred that information to his personal online cloud storage Dropbox account and was fired, in part, for that.  On the date of his termination, the plaintiff’s IT personnel (with the defendant’s consent) deleted its confidential information that he transferred to his personal Dropbox account.

However, the plaintiff later discovered that “Dropbox has a feature that allows a user to restore any file or folder removed from an active user account in the past 30 days or longer, depending on the version of Dropbox.”  As a result, the plaintiff asked the defendant 1) to certify that all its information was deleted from any electronic or physical storage location owned or used by the third party, 2) that it be allowed to monitor his Dropbox account activity and ensure that the deletion restoration feature was not activated and 3) to allow a third-party forensic consultant to examine his Dropbox account to ensure that all of the plaintiff’s information was deleted and not re-downloaded or transferred.  When the defendant refused, the plaintiff sued, asserting claims of breach of contract, conversion, and misappropriation of trade secrets.  The defendant filed a motion to dismiss the conversion claim, arguing that the claim is preempted by the Colorado Uniform Trade Secrets Act (“CUTSA”) and the allegations showed that the defendant was authorized to access and use the information and that he returned it to the plaintiff upon request.

Judge’s Ruling

Judge Arguello stated: “To assert a claim of conversion, Plaintiff must show: (1) Plaintiff has a right to the property at issue; (2) Defendant has exercised unauthorized dominion or ownership over the property (3) Plaintiff has made a demand for possession of the property; and (4) Defendant refuses to return it.”  In her analysis, Judge Arguello addressed elements two and four (as one and three were undisputed) and found that the defendant still has unauthorized “dominion or ownership” over the documents and concluded that “Plaintiff has sufficiently pled the fourth element” with regard to defendant’s refusal to allow it to re-access his Dropbox account.

As for the defendant’s contention that the plaintiff’s claim is preempted by CUTSA, Judge Arguello rejected that argument, stating: “At this stage in the litigation, the Court is without a sufficient record to determine whether some, part, or all of Plaintiff’s conversion claim depends on a finding of trade secret status and is, therefore, preempted by the CUTSA. Indeed, none of the allegedly converted information has been presented to the Court, nor has it been described in much detail.”  As a result, she denied the defendant’s motion to dismiss the claim.

So, what do you think?  Should the plaintiff have the right to re-access the defendant’s Dropbox account?  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.

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.

Does this Ring a Bell? Court Orders Plaintiff’s Quick Peek Over Defendant’s Objections: eDiscovery Case Law

In Fairholme Funds, Inc. v. United States, No. 13-456C, (Fed. Cl. Oct. 23, 2017), Judge Margaret M. Sweeney, despite the defendant’s strong objection, granted the plaintiffs’ motion to compel a “quick peek” production of approximately 1,500 documents withheld as privileged pursuant to the bank authorization and deliberative process privileges.

Case Background

In this case where the plaintiffs sought just compensation under the Fifth Amendment, contending that the defendant engaged in taking their property without just compensation, the defendant produced additional documents multiple times during the course of discovery when challenged.  After their most recent status report filed on June 30, the parties indicated that defendant produced an additional 3,500 documents in response to the court’s March 7 order, and as a result of that production, plaintiffs identified thirty-eight documents they contended should not be withheld for privilege.

Following its review of the thirty-eight documents, the defendant produced an additional twenty-two documents.  In response to the release of these additional documents, plaintiffs proposed that the parties use the quick peek procedure authorized by FRE 502(d).  In response, the defendant objected, quoting a note published by The Sedona Conference (in its Commentary on Protection of Privileged ESI covered by us here), as follows:

“[FRE] 502(d) does not authorize a court to require parties to engage in ‘quick peek’ … productions and should not be used directly or indirectly to do so. … Rule 502 was designed to protect producing parties, not to be used as a weapon impeding a producing parties’ right to protect privileged material. Compelled disclosure of privileged information, even with a right to later claw back the information, forces a producing party to ring a bell that cannot be un-rung.”

After the defendant did not agree to the use of the procedure, the plaintiffs filed a motion to compel.

Judge’s Ruling

Judge Sweeney began with an analysis of [FRE] 502(d) and noted that the “general purpose” of the rule was to resolve longstanding disputes regarding inadvertent production and subject matter waiver and to address complaints about the cost of protecting privileged materials, which she noted were “two issues not relevant to the current dispute.”  Judge Sweeney also indicated (as the plaintiffs pointed out in their argument) that the advisory committee note to [FRE] 502(d) specifically stated that “a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation”.

As a result, Judge Sweeney, noting the defendant’s “piecemeal” production and the desire to “facilitate the speedy and efficient conclusion of jurisdictional discovery”, granted the plaintiffs’ motion, partially because she had “every reason to believe” that the plaintiffs would seek in camera review of the documents.  Judge Sweeney stated: “Given the court’s heavy caseload and limited resources, the use of the quick peek procedure is a much more viable and attractive option. Not only will the court not have to expend its time and resources on a task that should be performed by the parties, but both parties will benefit from the prompt (or at least more prompt) resolution of outstanding discovery disputes. Thus, even though defendant has already reviewed the subject material multiple times, plaintiffs will continue to seek production of these materials, which will, in turn, continue to place a burden on the court—one which could be alleviated through the parties’ use of the quick peek procedure.”

So, what do you think?  Was the court wrong in going against The Sedona Conference recommendations?  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.

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 Chastises Parties for Turning Case into a “Discovery Slugfest”: eDiscovery Case Law

In UnitedHealthcare of Fla., Inc. et al. v. Am. Renal Assoc., Inc. et al., No. 16-cv-81180-Marra/Matthewman (S.D. Fla. Oct. 20, 2017), Florida Magistrate Judge William Matthewman granted in part and denied in part the plaintiffs’ Motion for Reconsideration or Modification of Omnibus Discovery Order, clarifying the Court’s previous order regarding custodians and search terms, while denying the remainder of the plaintiff’s motion.  Judge Matthewman also chastised both parties for their lack of cooperation on search terms.

In the Court’s August order, the Court permitted Defendants to select an additional 16 custodians and an additional 12 search terms and to request more at a later date if Defendants have a good-faith basis to do so and also ruled that the defendants had not waived any privilege and did not have to produce a privilege log.

In the current Motion, the plaintiffs argued that the Court should reconsider or modify its Order because the Court never made a finding that Plaintiffs’ production was deficient, there is no evidence that would support such a conclusion, the Court did not tailor the additional custodians or search terms to “any purported inadequacy nor to any proportionality limits”, the Court did not “provide any mechanism for ensuring that ARA’s custodians and search terms do not capture an overwhelmingly, burdensome, disproportionate amount of information”, and the Court’s Order was “patently unfair”.  The plaintiffs also argued that the Court should reconsider its decision not to compel the defendants to provide a privilege log because they “wrongfully withheld a responsive, non-privileged document, and the Court should not rely on Defendants’ counsel’s representations that they have no additional non-privileged responsive documents.”

Noting that “the only asserted new evidence submitted by Plaintiffs consists of Docket Entries 303-1 through 303-4” (which included email correspondence, a list of the additional 16 custodians, a list of additional 12 search terms and a Declaration from the Director of e-Discovery at the plaintiff company), Judge Matthewman focused on the last paragraph of the Declaration, which stated:

“In my opinion and based on my experience, if additional time is taken to reexamine the search terms to minimize some of the more obvious deficiencies and then, after the search terms are run, allow for the parties to evaluate which terms hit on an excessive number of documents and narrow them accordingly, the process could be sped up significantly as the volume of documents for the steps after collection and indexing will likely be greatly reduced.”

In response, Judge Matthewman stated: “Ironically, this type of cooperation is exactly what this Court has been expecting from the parties and their counsel throughout this case—to work together to arrive at reasonable search terms, to run those search terms and engage in sampling to see if the search terms are producing responsive documents or excessive irrelevant hits, and then to continue to refine the search terms in a cooperative, professional effort until the search terms are appropriately refined and produce relevant documents without including an excessive number of irrelevant documents. However, despite what paragraph 12 of the Declaration suggests, and despite this Court’s suggestions to the parties and their counsel as to the cooperative and professional manner in which the parties should engage in the e-discovery process in this case, there has instead been an apparent lack of cooperation and constant bickering over discovery, especially e-discovery. The alleged new evidence submitted by Plaintiffs, that is, the list of additional search terms and custodians and the Declaration, clearly show that, where, as here, parties in a large civil case do not cooperatively engage in the e-discovery process, the collection and indexing of documents and the production of relevant documents, become much more difficult.”

Indicating that “the parties and their counsel, through their many discovery disputes and their litigiousness, have unnecessarily turned this case into what can best be termed as a ‘discovery slugfest’”, Judge Matthewman noted that “the parties have filed well over 50 discovery motions, responses, replies, notices, and declarations, many of which have been filed under seal” and that the Court “has held at least six discovery hearings in 2017, most of which were lengthy and contentious.”

Judge Matthewman also referenced several resources regarding cooperation for the parties to consider, including The Sedona Conference, the Federal Judges’ Guide to Discovery, as well as comments from Supreme Court Chief Justice John Roberts regarding the 2015 Amendments to Federal Rules of Civil Procedure 1 and 26.  With that in mind, Judge William granted in part and denied in part the plaintiffs’ Motion for Reconsideration or Modification of Omnibus Discovery Order, clarifying the Court’s previous order regarding custodians and search terms, while denying the remainder of the plaintiff’s motion, including their dispute over the number of custodians and search terms and the failure to require the defendants to produce a privilege log.

So, what do you think?  What can we learn from the parties’ lack of cooperation in this case?  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.

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.