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Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Requesting 72 Spelling Variations on Five Search Terms Spells Trouble for Plaintiffs: eDiscovery Case Law

In Diesel Power Source et. al. v. Crazy Carl’s Turbos et. al., No. 14-826 (D. Utah, Feb. 23, 2017), Utah Magistrate Judge Brooke C. Wells denied the plaintiff’s Motion for Sanctions for the failure of the defendant to produce ESI, finding that the plaintiff had failed to sufficiently narrow its search terms by introducing 72 spelling variations on the five terms it proposed.  Judge Wells also denied the defendants’ Motion for Order to Show Cause and for Sanctions, finding that the defendants had failed to provide any “certification that the parties made reasonable efforts to reach agreement on the disputed matters.”

Case Background

In this case regarding defamatory comments and photographs allegedly posted on the internet by the defendants about the plaintiffs (who were business competitors), Judge Wells led off her order by stating: “To state that the parties in this matter are not cooperating with each other is an understatement.”  Throughout the case, each of the parties had taken turns filing motions for sanctions and each of the parties had complained to the court about the other side failing to provide requested discovery, causing Judge Wells to note that the case “has sat stuck in the quagmire of discovery despair” since it was filed in November 2014.

The plaintiffs sought sanctions against the defendants for their alleged failure to comply with a May 2016 court order compelling them to produce certain items. Following a hearing held in December 2016, it became apparent that some items were still outstanding. The court took the Motion for Sanctions under advisement before finding in January 2017 that the email search terms submitted by the plaintiffs were “overly generic and result in an undue burden placed upon Defendants”. The court ordered the plaintiffs to provide “five detailed search terms that must be more detailed than those previously submitted”.

Following the court’s order, the plaintiff provided the defendants with five search terms, but also provided 72 “spelling variations” on these search terms for a total of 77 search terms.  Due to the number of search terms, the defendants filed a Motion for Order to Show Cause and for Sanctions, again asserting that the plaintiff was on a fishing expedition and also arguing that the plaintiff had failed to comply with the court’s May 2016 order, asking for sanctions citing to the Ehrenhaus factors.  In response, the plaintiff argued it is easy to search using the 72 “spelling variations” if quotations are used.

Judge’s Ruling

In considering the motions, Judge Wells stated: “After considering all that has happened during discovery the court finds both parties to be at fault. First, the court finds Plaintiff has failed to sufficiently narrow its search terms. Previously the court found Plaintiff’s search terms to be overly generic placing an undue burden upon Defendants. Now, Plaintiff has taken the court’s instruction to provide five search terms to an extreme by supplementing it with 72 additional ‘spelling variations.’ Such an expansion is not within the spirit and intent of the court’s prior orders, its comments during hearings or within the principles of proportionality found in the discovery rules.”  As a result, Judge Wells ruled that “Plaintiff is permitted to use the five search terms it has provided along with three listed spelling variations, three for each of the five search terms, for a total of twenty terms.”

As for the defendants’ motion, Judge Wells stated that “Defendants Motion for Order to Show Cause and for Sanctions not only misstates the record before the court, it also fails to comply with the Short Form Discovery Rules as set forth by Judge Nuffer and as set forth in Local Rule 37-1. Defendants have failed to provide any ‘certification that the parties made reasonable efforts to reach agreement on the disputed matters’ and that provides an additional basis to deny Defendants motion.”  Judge Wells also noted that “[m]uch of Defendants motion is an attempt to draw the court’s attention away from Defendants own malfeasance. There is no excuse for Defendants failure to provide the federal tax returns and bank statements.”

Judge Wells also issued a warning to “both parties that going forward there needs to be a renewed spirit of cooperation otherwise the court will use its inherent powers to sanction the attorneys in this case for the continued stonewalling that has been a reoccurring theme in this litigation.”

So, what do you think?  Should courts rule on limiting spelling variations of search terms?  Please share any comments you might have or if you’d like to know more about a particular topic.

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 to Overrule Plaintiff’s Objections to Discovery Requests

Defendant Ordered to Reproduce ESI in Native Format, As Originally Requested by Plaintiffs: eDiscovery Case Law

In Morgan Hill Concerned Parents Assoc. v. California Dept. of Education, No. 2:11-cv-3471 KJM AC (E.D. Cal. Feb. 2, 2017), California Magistrate Judge Allison Claire granted the plaintiffs’ motion to compel the defendant to produce emails in native format with all metadata attached, but denied the plaintiffs’ motion for sanctions without prejudice to its renewal using Sacramento rates for attorneys’ fees.  Judge Claire also denied the defendant’s motion for a protective order regarding production of the native format data, and its motion for sanctions.

Case Background

In this case regarding alleged violations of the Individuals with Disabilities Education Improvement Act, the plaintiffs served their First Set of Requests for Production of Documents in April 2013. The request specified that the ESI should be produced “in their native electronic format together with all metadata and other information associated with each document in its native electronic format.”  One month later, the defendant responded, but did not object to the instruction that ESI be produced in native format and did not propose any other format for producing the ESI, instead objecting to nearly every individual request in the First Set on the grounds that they were “unduly burdensome”, “not relevant to the present litigation,” and protected by the attorney client and deliberative process privileges.

In October 2013, the defendant submitted a proposed protective order to the court where it “observe[d]” that “the question whether to produce metadata generally involves a balancing test ….”.  The defendant subsequently claimed this was its original objection to the production of ESI in native format – they didn’t explicitly object to native format production until a letter sent to the plaintiffs in August 2016.  According to the defendant, they had produced ESI “as load files, a standard format approved by the Special Master on April 7, 2016.”  The parties met and conferred on the format of production issue in October 2016 without success.

Judge’s Ruling

With regard to the defendant’s argument that “[a] requesting party cannot demand production in one format versus another just because one would allegedly ease a party’s review process,” Judge Claire stated: “This argument runs directly contrary to the governing Rules, which expressly state just the opposite: the requester ‘may specify the form or forms in which electronically stored information is to be produced.’… Indeed, CDE’s dismissive rejection of ‘ease’ of review as a valid reason for specifying the format is difficult to understand, since ease of review is precisely why the requesting party would specify the format, and it is the very reason the requester is permitted to do so.”

With regard to the defendant’s argument that it can ignore the plaintiffs’ request for native format and produce it in some other format so long as the production is in a “`usable form, e.g., electronically searchable and paired with essential metadata’”, Judge Claire noted that the “The Rules specify that the responding party may produce ESI ‘in a reasonably usable form’ if the request ‘does not specify a form for production.’”  Since the plaintiffs’ request did specify it, Judge Claire ruled that “there was no basis for CDE to simply ignore it and produce it in a format of CDE’s own choosing.”  Judge Claire also rejected the defendant’s “attempt to drag the Special Master into this dispute” via undocumented recollection of an ex parte phone call approval from the Special Master, by noting that the Special Master is a technical consultant only, “not a judge who could ‘approve’ or disapprove of discovery production formats.”

Judge Claire also rejected even the defendant’s earliest claimed date of objection (October 2013) as untimely, since it was “six months after the document requests were served” and also ruled the more explicit objection in August 2016 as untimely as well.

As for the defendant’s argument that reproducing the ESI in native form would be burdensome, Judge Claire stated: “The court rejects this argument because this is a problem of CDE’s own making. CDE created the problem it now complains about by engaging in an ESI production in a format of its choosing — the ‘load file format’ — rather than the native format, with all metadata attached, as plaintiffs had requested.”  Judge Claire also noted that the defendant could have produced it originally in the requested format or objected in a timely manner and worked to meet and confer with the plaintiff – neither of which happened.

As a result, Judge Claire granted the plaintiffs’ motion to compel the defendant to produce emails in native format with all metadata attached.  Judge Claire denied the plaintiffs’ motion for sanctions without prejudice to its renewal using Sacramento rates for attorneys’ fees and also denied the defendant’s motion for a protective order regarding production of the native format data, and its motion for sanctions.

So, what do you think?  Could the defendant have gotten its way if it had objected in a timely manner?  Please share any comments you might have or if you’d like to know more about a particular topic.

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 to Overrule Plaintiff’s Objections to Discovery Requests

Delaware Supreme Court Affirms $7 Million Sanction for Discovery Misconduct: eDiscovery Case Law

In Shawe v. Elting, Case No. 487, 2016 (Supreme Court of Delaware, Feb. 13, 2017), the Delaware Supreme Court found that the Court of Chancery followed the correct legal standards and made no errors of law in its sanctions award of over $7 million against the appellant, agreeing with the lower court that his behavior was “unusually deplorable”.

Case Background

The plaintiff appealed an order of the Court of Chancery sanctioning him for misconduct throughout litigation with his current business partner and former romantic partner, where, after an evidentiary hearing, the Court of Chancery found that the plaintiff committed several violations, including:

  • Breaking into the defendant’s office, having the President of the company’s forensic technology business image her hard drive, concealing the activities with a write blocker, and replacing the computer to cover his tracks (several times over a two year period);
  • Remote accessing the defendant’s computer at least 44 times on 29 different occasions, gaining access to 19,000 emails, including 12,000 privileged communications between the defendant and her attorney;
  • Hiring another third party to break into the defendant’s office, take pictures, and remove hard copies of documents;
  • Claiming (after the suit was filed) that his niece dropped his phone in a cup of soda and he ultimately threw it away because he found it in a drawer with rat droppings;
  • Deleting nearly 19,000 files from his laptop, which was discovered because his computer had made volume shadow copies and his own expert discovered it;
  • Lying about his activities in his discovery responses and at his deposition, as well as giving false trial testimony and submitting a false affidavit during post-trial briefing.

The court also found that the plaintiff’s improper conduct impeded the administration of justice, unduly complicated the proceedings, and caused the court to make false factual findings. The Court of Chancery ordered the plaintiff to pay 100% of the fees the defendant incurred in connection with bringing the motion for sanctions, and 33% of the fees the defendant incurred litigating the merits of the case, awarding the defendant a total of $7,103,755 in fees and expenses.

On appeal, the plaintiff argued that the Court of Chancery erred in three respects: (1) by finding that he acted in bad faith when he deleted the files from his laptop and failed to safeguard his cell phone; (2) for failing to afford him criminal due process protections before sanctioning him for “perjury”; and (3) by awarding the defendant an excessive fee.

Judge’s Ruling

With regard to intent, the Court noted that the plaintiff/appellant “deleted 41,000 files from his laptop in December 2014 in the face of two litigation hold notices, one of which he issued, and an expedited discovery order that permitted Elting to conduct forensic discovery of Shawe’s laptop.”  Even though most of those files were recovered due to the laptop’s volume shadow copy system, the Court ruled that “does not negate his illicit intent” and also found that the “Court of Chancery was well within its discretion to sanction Shawe for his litigation misconduct” for throwing out his cell phone.

With regard to the “perjury” sanction, the Court stated: “While Shawe’s conduct may have constituted perjury, the court did not charge or convict him of perjury. Rather, the court imposed a civil sanction against him for his repeated lies under oath in interrogatory responses, at deposition, at trial, and in a post-trial affidavit to cover up what he had done. Shawe’s falsehoods wasted the court’s time, needlessly complicated and expanded the proceedings, and caused the court to find erroneous facts in its Merits Opinion. The Court of Chancery thus acted well within its discretion to sanction him for lying during the litigation.”

With regard to the claim that the defendant was awarded an excessive fee, the Court noted that the “Court of Chancery has broad discretion in fixing the amount of attorneys’ fees to be awarded” and “[a]bsent a clear abuse of discretion”, declined to reverse the award.

As a result, the Court affirmed the award, stating: “After a careful review of the record, we find that the Court of Chancery followed the correct legal standards and made no errors of law in its sanctions ruling. Shawe’s behavior was ‘unusually deplorable,’ and thus the Court of Chancery acted well within its discretion by sanctioning him for his bad faith conduct.”

So, what do you think?  Did the actions merit such a stiff sanction?  Please share any comments you might have or if you’d like to know more about a particular topic.

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 to Overrule Plaintiff’s Objections to Discovery Requests

Spoliation of Truck Evidence Precludes Plaintiffs’ Use of That Evidence “As a Sword”: eDiscovery Case Law

In Below v. Yokohama Tire Corp., No. 15-cv-529 (W.D. Wisc. Feb. 27, 2017), Wisconsin District Judge William M. Conley, deciding on several pre-trial motions, granted (to an extent) the defendants’ motion for relief due to spoliation of evidence for failing to preserve the truck involved in a crash, stating that “defendants persuasively argue that the absence of this evidence should at minimum preclude plaintiffs from using it as a sword, even if defendants cannot use it as a shield.”

Case Background

In this product liability case related to a truck crash due to an alleged defective tire produced by the defendants that left the plaintiff severely injured, the defendants contended that the plaintiff’s pickup truck was destroyed at a salvage yard before plaintiffs filed this lawsuit.  The defendants argued that destruction of the truck hampered their defense because they were unable to evaluate, among other things, the suspension and steering systems, the seatbelt, the electronic data recorder and the other three tires.  Asserting that the plaintiffs or their “agents” sold the plaintiff’s pickup truck to a salvage yard with the knowledge that it would be destroyed after inspecting it, taking photographs and preserving the failed tire, defendants moved for a spoliation instruction.  Because of the plaintiffs’ actions, as well as receipt of $22,000 in insurance proceeds from the sale of the truck to the plaintiffs, the defendants argued that the plaintiffs’ bad faith could be inferred.

The plaintiffs asserted that the salvage yard agreed to the request from an investigator (retained by plaintiffs’ counsel) to preserve the truck in October 2013 (about a month and a half after the accident). In May of 2014, another of its investigators (Tom Malone) followed-up with the salvage yard to ask them to continue to preserve the truck and to notify him about any storage charges. Despite these efforts, plaintiffs’ counsel later “discovered” in the fall of 2015 that the truck had been destroyed on October 23, 2014.

Judge’s Ruling

Judge Conley noted that “A spoliation instruction is only obtainable if the proponent shows an intentional act or bad faith by the party in possession of the destroyed evidence.”

With regard to the plaintiffs’ failure to preserve all but the allegedly defective tire from the truck, Judge Conley stated: “Left unexplained is how plaintiffs ended up with the single, allegedly defective tire without preserving the other three; why other steps were not taken to preserve similar evidence, including possible electronic evidence that must be preserved under Fed. R. Civ. P. 37(e); and perhaps most important, why plaintiffs waited another, two full years after the accident without notifying Yokohama of the availability of this piece of key evidence, despite knowing that it was the focus of plaintiffs’ liability claims within months of the accident itself. These questions are all the more troubling because plaintiffs were represented by a sophisticated personal injury law firm, who know full well of their duty to maintain evidence relevant to likely litigation, to provide notice of a possible claim, and notice of ‘the existence of evidence relevant to that claim.’…Plus, Malone’s letter to the salvage yard presents many more questions than it answers, as to timing and whether any agreement ever existed with the salvage yard.”

As a result, Judge Conley ruled, as follows: “Based on this record, plaintiffs’ counsel certainly should have taken additional steps to ensure that the truck (or at least potentially key evidence) was preserved, as well as notified likely defendants timely of the opportunity to inspect it. The failure to do so falls somewhere between negligence and gross negligence, but perhaps short of bad faith or intentional conduct requiring an adverse inference instruction. Even so, defendants persuasively argue that the absence of this evidence should at minimum preclude plaintiffs from using it as a sword, even if defendants cannot use it as a shield. Therefore, the defendants motion is GRANTED to the extent that (1) defendants may explore how information from an inspection of Below’s truck could have affected the experts’ opinions at trial; and (2) plaintiffs may not argue that defendants or their experts failed to explore or prove something if prevented from doing so by plaintiffs’ negligence in preserving evidence. Defendants’ motion is otherwise RESERVED pending a further proffer and argument at the final pretrial conference, including defendants request for a spoliation instruction.”

So, what do you think?  Did the judge go far enough in addressing the spoliation of truck evidence?  Please share any comments you might have or if you’d like to know more about a particular topic.

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 to Overrule Plaintiff’s Objections to Discovery Requests

Judge Peck Objects to Defendant’s Form of Objections: eDiscovery Case Law

In Fischer v. Forrest, Nos. 14 Civ. 1304 (PAE) (AJP), 14 Civ. 1307 (PAE) (AJP) (S.D.N.Y. Feb. 28, 2017), New York Magistrate Judge Andrew J. Peck ordered the defendants “to revise their Responses to comply with the Rules”, specifically Rule 34(b)(2)(B) and Rule 34(b)(2)(C), amended in December 2015 requiring objections to be stated with specificity and directing that an objection must state whether any responsive materials are being withheld on the basis of that objection.

Judge Peck wasted no time getting to the point in his ruling, stating:

“It is time, once again, to issue a discovery wake-up call to the Bar in this District: the Federal Rules of Civil Procedure were amended effective December 1, 2015, and one change that affects the daily work of every litigator is to Rule 34. Specifically (and I use that term advisedly), responses to discovery requests must:

  • State grounds for objections with specificity;
  • An objection must state whether any responsive materials are being withheld on the basis of that objection; and
  • Specify the time for production and, if a rolling production, when production will begin and when it will be concluded.

Most lawyers who have not changed their ‘form file’ violate one or more (and often all three) of these changes.”

In these related cases asserting claims for, among other things, copyright and trademark violations, the defendants’ amended Rule 34 Responses contained (according to Judge Peck) “17 ‘general objections,’ including General Objections No. I stating that ‘Defendant objects to the requests to the extent that they call for the disclosure of information that is not relevant to the subject matter of this litigation, nor likely to lead to the discovery of relevant, admissible evidence.’”

Judge Peck proceeded to “count the ways” that the defendants had violated the Rules:

“First, incorporating all of the General Objections into each response violates Rule 34(b)(2)(B)’s specificity requirement as well as Rule 34(b)(2)(C)’s requirement to indicate whether any responsive materials are withheld on the basis of an objection. General objections should rarely be used after December 1, 2015 unless each such objection applies to each document request (e.g., objecting to produce privileged material).”

“Second, General Objection I objected on the basis of non-relevance to the ‘subject matter of this litigation.’…The December 1, 2015 amendment to Rule 26(b)(1) limits discovery to material ‘relevant to any party’s claim or defense…’ Discovery about ‘subject matter’ no longer is permitted. General Objection I also objects that the discovery is not ‘likely to lead to the discovery of relevant, admissible evidence.’ The 2015 amendments deleted that language from Rule 26(b)(1), and lawyers need to remove it from their jargon…”

“Third, the responses to requests 1-2 stating that the requests are ‘overly broad and unduly burdensome’ is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing. Indeed, even before the December 1, 2015 rules amendments, judicial decisions criticized such boilerplate objections…”

“Finally, the responses do not indicate when documents and ESI that defendants are producing will be produced.”

As a result, Judge Peck ordered the defendants “to revise their Responses to comply with the Rules”, stating:

“The December 1, 2015 amendments to the Federal Rules of Civil Procedure are now 15 months old. It is time for all counsel to learn the now-current Rules and update their ‘form’ files. From now on in cases before this Court, any discovery response that does not comply with Rule 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).”

So, what do you think?  Do you still encounter boilerplate objections in discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Google Required to Hand Over Foreign Stored Emails to Justice Department: eDiscovery Case Law

In the ruling In re Search Warrant No. 16-960-M-01 to Google, Pennsylvania Magistrate Judge Thomas J. Rueter ordered Google to comply with a search warrant to produce foreign-stored emails, disagreeing with the U.S. Court of Appeals for the 2nd Circuit’s ruling in the Microsoft Ireland warrant case, where Microsoft was not ordered to provide access to emails in that ruling.

In August 2016, the court issued two search warrants, pursuant to section 2703 of the Stored Communications Act (SCA), which required Google to disclose electronic data held in the accounts of targets in two separate criminal investigations to agents of the FBI.  Each account holder resided in the US, the crimes they are suspected of committing occurred solely in the US, and the electronic data at issue was exchanged between persons located in the United States.

Google partially complied with the warrants by producing data that is within the scope of the warrants that it could confirm is stored on its servers located in the US, but refused to produce other data required to be produced by the warrants that was stored on servers located out of the US, relying on the recent decision of a panel of the US Court of Appeals Second Circuit, Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016), where the Second Circuit denied the government’s efforts to compel Microsoft to provide emails in that case.

In ruling that Google has to comply with the warrant in full, Judge Rueter stated that “Under the facts before this court, the conduct relevant to the SCA’s focus will occur in the United States. That is, the invasions of privacy will occur in the United States; the searches of the electronic data disclosed by Google pursuant to the warrants will occur in the United States when the FBI reviews the copies of the requested data in Pennsylvania. These cases, therefore, involve a permissible domestic application of the SCA, even if other conduct (the electronic transfer of data) occurs abroad.”

Judge Rueter also indicated that he “agrees with the Second Circuit’s reliance upon Fourth Amendment principles, but respectfully disagrees with the Second Circuit’s analysis regarding the location of the seizure and the invasion of privacy”, noting that “[e]lectronically transferring data from a server in a foreign country to Google’s data center in California does not amount to a ‘seizure’ because there is no meaningful interference with the account holder’s possessory interest in the user data. Indeed, according to the Stipulation entered into by Google and the Government, Google regularly transfers user data from one data center to another without the customer’s knowledge. Such transfers do not interfere with the customer’s access or possessory interest in the user data.”

Judge Rueter also noted that the searches would occur in the US, stating that “Even though the retrieval of the electronic data by Google from its multiple data centers abroad has the potential for an invasion of privacy, the actual infringement of privacy occurs at the time of disclosure in the United States.”  As a result, Judge Rueter granted the Government’s motions to compel Google to comply with the search warrants.

So, what do you think?  Should the location of the data or the location of the searches for the data determine whether it is subject to foreign data privacy considerations?  Please share any comments you might have or if you’d like to know more about a particular topic.

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 to Overrule Plaintiff’s Objections to Discovery Requests

Court Defines Narrowed Scope for Requests for Social Media Data: eDiscovery Case Law

In Scott v. United States Postal Service, No. 15-712-BAJ-EWD (M.D. La. Dec. 27, 2016), 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”.

Case Background

In this personal injury case stemming from an automobile accident involving a vehicle driven by a United States Postal Service worker while that worker was on the job, the defendant requested via Interrogatory for the plaintiff to “Identify any and all social media (including but not limited to Facebook, Instagram, Twitter)” she had used since June 6, 2014 (the date of the accident).  The defendant also requested (via Request for Production) for the plaintiff to “Produce all postings related to any type of physical or athletic activities from June 6, 2014, to present on all social media websites, including, but not limited to Facebook, Instagram and Twitter.”

In her written discovery responses, Plaintiff objected to each of these requests by asserting that “the information requested is inclement, immaterial and not reasonably calculated to lead to the discovery of admissible evidence.”

The defendant sent a letter to the plaintiff in July 2016, explaining that it had a good faith basis for believing that the plaintiff had posted photographs and other information on social media about her activities since the accident, which involve physical activity (including one photograph on Facebook account showing the plaintiff and her fiancé in ski attire on a snow covered mountain), and that such information is relevant to the case.

After efforts to confer were unable to resolve the dispute, the defendant filed its Motion to Compel in September 2016.  In response, the plaintiff argued that the defendant’s request for all of her social media photos was overly broad because it would require the production of a significant amount of irrelevant information.  In its Reply Memorandum, the defendant maintained that the plaintiff had waived her objections to the discovery requests at issue and that the defendant was entitled to the information and documents requested because they are relevant to the plaintiff’s personal injury claims.

Judge’s Ruling

Noting that “Plaintiff does not address Defendant’s argument that her failure to timely voice adequate objections to the discovery requests constitutes a waiver of any objection she may have to the discovery requests”, Judge Wilder-Doomes found that the “boilerplate” language used by the plaintiff in objecting “does not suffice to assert a valid objection to the discovery requests” and found that the plaintiff had waived her objections to the discovery requests.

Despite that ruling, Judge Wilder-Doomes found the discovery requests to be “overbroad” and decided to “limit the requests in accordance with Fed. R. Civ. P. 26(b)(1)”.  With regard to the Interrogatory, Judge Wilder-Doomes limited the request to “identifying all social media accounts that Plaintiff has used since the underlying accident on June 6, 2014, her usernames, whether she has accessed the accounts since the accident, and the last time she accessed the accounts”.

With regard to the Request for Production, she limited the request to “all of Plaintiff’s social media postings, including photographs, since the June 6, 2014 accident that: (1) refer or relate to the physical injuries Plaintiff alleges she sustained as a result of the accident and any treatment she received therefor; or (2) reflect physical capabilities that are inconsistent with the injuries that Plaintiff allegedly suffered as a result of the accident.”

So, what do you think?  Should courts limit the scope of discovery requests?  Please share any comments you might have or if you’d like to know more about a particular topic.

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 Plays Key Role in $10.8 Million Whistleblower Lawsuit Verdict: eDiscovery Case Law

Earlier this month, federal jurors awarded nearly $8 million to the former general counsel of a company who says he was fired because he blew the whistle on his company’s potential violation of a foreign bribery law.  That award will increase to $10.8 million because the Dodd-Frank Act authorizes the doubling of back pay for whistleblower retaliation.

An article in The Recorder (Ousted Bio-Rad GC Wins Whistleblower Case, written by David Ruiz) stated that a federal jury sided with former Bio-Rad Laboratories Inc. general counsel Sanford “Sandy” Wadler in his whistleblower retaliation lawsuit against the company, after deliberating for less than three hours.

The jury awarded Wadler $2.9 million in back pay and stock compensation and $5 million for punitive damages.

“I’m extraordinarily grateful to the jury for its very thoughtful verdict in finding that whistleblowers need protection,” lead attorney James Wagstaffe (of law firm Kerr & Wagstaffe) said immediately after the verdict was read. “You’re not supposed to fault whistleblowers for raising legitimate concerns about potential corruption.”

Wagstaffe also said that back pay damages are doubled, increasing the total award to $10.8 million.

Wadler, who was fired from his post at Bio-Rad in June 2013, maintained that he was forced out because he blew the whistle on potential Foreign Corrupt Practices Act violations by the company in China.  Jurors found that Wadler’s whistleblowing activities were a significant reason the company fired him in June of that year.

Wadler’s lawyers at Kerr & Wagstaffe were able to undermine some company testimony by pointing to a lack of documentation about Wadler’s alleged outbursts, partly by repeatedly returning to the last review that Wadler received while on the job in December 2012, which was largely positive.

A key aspect of the jury’s decision related to the metadata associated with Wadler’s most recent performance evaluation, which was apparently dated in April 2013.  Before the jury reached its verdict, it asked about the timing of that performance evaluation. According to Wagstaffe, metadata showed the performance evaluation was actually created in July 2013, a full month after Wadler’s termination. The jury asked if the date referred to the document’s creation or its modification. It referred to creation, said U.S. Magistrate Judge Joseph Spero, who presided over the case.

In an interview with Courthouse News, Wagstaffe said the metadata evidence helped tip the scale in Wadler’s favor and that the “fake job review” (his words, not mine) was a major piece of evidence that helped tip the scale.

Hat tip to Sharon Nelson at Ride the Lightning for her post about the story.

So, what do you think?  Can metadata prove when a document was created?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — Happy Valentine’s Day!

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 to Overrule Plaintiff’s Objections to Discovery Requests

With No Intent or Duty to Preserve, Court Finds No Spoliation Occurred: eDiscovery Case Law

In Archer et. al. v. York City School District, et. al., No. 13-2826 (M.D. Pa., Dec. 28, 2016), Pennsylvania District Judge John E. Jones, III ruled that the plaintiffs had presented no evidence showing that the defendants acted with intent when they deleted the email account of the former Assistant Superintendent, nor had a duty to preserve arose prior to the deletion of the account.

Case Background

In this case brought forward in November 2013 by a group of students and parents suing the defendants to protest the decision not to renew their school’s charter based upon the performance of the school and the hardship on the city’s budget, the defendants filed a Motion for Summary Judgment.  In their opposition to the summary judgment motion, the plaintiffs alleged that the defendants spoliated evidence when they deleted the email account of former assistant superintendent Perry-Cross, who retired in February 2012.  Her email account was deleted afterward, with the defendants suggesting that this may have occurred as soon as ninety days after, while the plaintiffs alleging that her emails were “purged sometime after 2012” (though they failed to provide any evidence that pointed to this timeline).

The parties agreed that the first two elements of spoliation – that the emails were within the defendants’ control and they were relevant to the claims of the instant case – were not at issue.  But, the defendants disagreed with the last two elements, arguing that the emails were deleted as a matter of course, so the defendants were not attempting to suppress evidence and further arguing that at the time the emails were deleted, there was no reasonably foreseeable duty to preserve the account.

Judge’s Ruling

With regard to intent to destroy evidence, Judge Jones stated: “Plaintiffs here have presented no factual basis whatsoever in support of their allegations that Defendants’ intended to destroy evidence helpful to Plaintiffs’ claims. Rather, the District’s policy of purging former employees’ email accounts within ninety days, and the fact that litigation did not commence until well over a year after Defendant Perry-Cross left the District and potentially over a year after the deletion occurred amounts to evidence supporting the opposite conclusion. Defendants also point to their swift and prompt reaction to turn over newly discovered evidence in the form of another District employee’s email account after previously believing it was deleted…This compilation of evidence, taken as a whole, leads the Court to conclude that Plaintiffs have failed to support their allegation that Defendants acted with intent to spoil evidence when they deleted Defendant Perry-Cross’s email account.”

With regard to the defendants’ duty to preserve, Judge Jones stated: “Plaintiffs attempt to persuade the Court that ‘[t]here can be no credible argument that the defendants were not aware that the disruption of 700-800 children and tens of millions of dollars would not produce litigation’ such that Defendants should have been on notice of their duty to preserve Defendant Perry-Cross’ email account…We disagree. Plaintiffs’ argument that by the simple act of doing their jobs, Defendants should have been on notice of litigation that would not commence until nearly a full year later does not create knowledge that litigation is ‘pending or probable.’”

Finding that the plaintiffs “have failed to establish both the third and fourth elements of spoliation”, Judge Jones found that their allegation of spoliation had no merit and granted the defendants’ Motion for Summary Judgment in its entirety.

So, what do you think?  When did the duty to preserve data begin?  Please share any comments you might have or if you’d like to know more about a particular topic.

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 to Overrule Plaintiff’s Objections to Discovery Requests

Court Orders Plaintiff to Produce Emails with Original Metadata: eDiscovery Case Law

In Singh et. al. v. Hancock Natural Resources Group, Inc. et. al., No. 15-1435 (E.D. Cal., Dec. 29, 2016), California Magistrate Judge Jennifer L. Thurston granted the defendants’ motion to compel (in part), ordering the plaintiffs’ to “produce all emails and other documents sought by the defendants in the format demanded with the accompanying metadata from the native computer”.

Case Background

In this breach of contract case over the sale of farmland, the defendants requested email communications in TIFF format with the corresponding metadata.  The plaintiff produced TIFF formatted emails, but only after they had been forwarded from the subject computer to the office of the former attorney for the plaintiffs, rendering the metadata “wholly useless and irrelevant because it pertains to the forwarded versions of the emails to Plaintiffs’ counsel’s paralegal, not the original emails between Plaintiffs and Hancock.”

The defendants argued that the metadata from the native versions of the email was crucial because it appeared that the plaintiffs produced key emails that were changed when compared to the same emails directed to the recipient.  According to the defendant, some emails appeared to have been “whited out” from the plaintiffs’ versions, and in other instances new and different text had been inserted into Plaintiff’s versions.  In one example, the plaintiffs’ copy of an email stated that the defendant’s representative indicated (apparently, when discussing a document related to the sale) that “It’s Acceptable.”  The one produced by the defendant did not have this language.

Regarding the inconsistencies, the plaintiff’s only argument was that their attorney (who had since been replaced) explained that he did not have any experience in eDiscovery and was working with a computer specialist to correct the problem.

There was also a dispute over whether the defendants had actually ever sent an email with a signed copy of the sales agreement.  The plaintiffs provided a standalone PDF copy of the sales agreement signed by the plaintiff (with no supporting metadata) and an email from the plaintiff, sending an unsigned version of the agreement.

Judge’s Ruling

With regard to the forwarded emails produced with incorrect metadata, Judge Thurston ruled “In light of the significant showing as to the importance of the metadata from the native computer, the Court GRANTS the motion. Thus, the motion to compel as to any request for electronically held documents is GRANTED. Within ten days, the plaintiffs SHALL produce all emails and other documents sought by the defendants in the format demanded with the accompanying metadata from the native computer.”

Observing that the defendants were arguing that the email that discussed the sales agreement included an unsigned, draft copy of the agreement and that the plaintiffs had failed to provide an email which supported that the plaintiff sent an executed, final copy of the sales agreement, Judge Thurston ordered the plaintiff to “provide all responsive emails and documents… in the format demanded and with the accompanying metadata from the native computer.”

So, what do you think?  Would a native file production have eliminated the issue?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.