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Case Law

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

Court Denies Defendant’s Motion for Production of Documents for In Camera Review: eDiscovery Case Law

In Portland Pipe Line Corp. et. al. v. City of South Portland et. al., No. 15-00054 (D. Maine, Sept. 8, 2016), Maine Magistrate Judge John H. Rich, III denied the defendants’ motion to compel the production of documents withheld or redacted on claims of attorney-client privilege by the plaintiff, finding that the plaintiffs “undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor” and then undertaking a “painstaking manual review to verify the privileged status of every ESI document marked as privileged”.

Case Background

In this case where the plaintiff sued the defendant seeking declaratory and injunctive relief regarding an ordinance prohibiting the loading of crude oil, the defendant brought instant disputes to the court’s attention regarding perceived inadequacy with the plaintiff’s privilege log.  The defendants indicated that they diligently attempted to resolve the instant disputes, emailing letters to the plaintiffs on August 10 and 22, 2016, to which the plaintiffs, in letters emailed on August 15 and 24, 2016, “offered no meaningful response”, forcing them to take the issue to the court.  On August 10, the defendants also advised that, absent further detail, they suspected that the privilege was improperly claimed as to four categories of documents and eventually demanded that the plaintiffs produce all documents withheld on the first three categories within the remaining three categories for the court’s in camera review in determining whether to order that additional detail be provided in the ESI log or documents be produced.

The plaintiffs countered that the defendants pursued a “dilatory and burdensome approach” and raised no concern about the adequacy of a similar hard-copy document privilege log that the plaintiffs had produced on July 14, and that they also failed to define the scope and nature of their complaints about the ESI privilege log sufficiently to enable a particularized response, asserting that the defendants, as the parties pressing discovery disputes, bore the burden of defining the scope of those disputes in such a manner as to permit the plaintiffs an adequate opportunity to respond and the court to rule.  They also flatly declined to undertake a wholesale review of their privilege log, decrying the undue burden of the request in light of the costly and time consuming efforts already taken to create the log and standing by both its adequacy and the viability of their claims of privilege.

Judge’s Ruling

With regard to the argument over the production of the privilege log and noting that the defendants waited until August 30 to seek the court’s aid, Judge Rich stated that “The plaintiffs have the better argument.”  In denying the defendant’s motion, he stated:

“I appreciate that the defendants cannot be certain, in the absence of the requested in camera review, whether documents have or have not been properly withheld. However, I take into consideration the plaintiffs’ counsel’s representation, as officers of the court, that the plaintiffs undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor and then, following the production of more than 100,000 pages of ESI to the defendants on July 29, immediately undertaking a painstaking manual review to verify the privileged status of every ESI document marked as privileged and draft appropriate descriptions for the ESI log. The plaintiffs’ counsel further represent that the plaintiffs executed targeted searches of documents as to which privilege had been claimed to identify those less likely to have been privileged. As a result of those efforts, when the plaintiffs produced their ESI log on August 2, they not only made new claims of privilege as to previously produced documents but also withdrew claims of privilege as to a number of other documents.”

So, what do you think?  Should the in camera review have been allowed?  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

Appeals Court Upholds Default Judgment for Discovery Violations, Including Wiping Files from Laptop: eDiscovery Case Law

In Trude et. al. v. Glenwood State Bank, et. al., Nos. A15-0378, A15-1863, A15-1864 (Minn. App., Aug. 15, 2016), a Minnesota Appeals Court affirmed the trial court’s entry of default judgment for repeated discovery violations, including using data wiping software to permanently delete more than 20,000 files from a laptop just hours before it was turned over for forensic examination.

Case Background

This case originally began when the bank tried to repossess earthmoving equipment and other property in 2011 from one of the parties, which resulted in a lawsuit against the bank by two other parties (Trude and his company JBI, claiming that they owned the property).  A series of counterclaims and third party complaints continued over years of litigation.  The defendant had a contentious discovery history with plaintiffs JBI and Trude, with those plaintiffs not answering the defendant’s interrogatories or document requests for two months after an extended deadline, so the defendant moved to compel discovery and sought sanctions.  JBI and Trude responded to the interrogatories immediately before the hearing on the defendant’s motion, but the court found their response untimely without excuse and sanctioned Trude individually to pay the defendant’s costs in bringing the motion.

The defendant’s discovery conflicts with JBI and Trude continued, and the defendant again sought the court’s involvement. In August 2014, the district court ordered Trude to allow the defendant to take JBI’s business laptop offsite to forensically analyze it. JBI turned the computer over, but the defendant’s forensic analyst determined that, just hours before the laptop was picked up, someone had used data-wiping software to permanently delete more than 20,000 files from the computer.

In November 2014, the court found that Trude intentionally destroyed evidence to keep it out of the defendant’s hands and both JBI and Trude were held in contempt for destruction of evidence and their claims were dismissed. The court also ordered JBI and Trude to show cause for their continued failure to disclose projects the earthmoving equipment was used on and warned them that their Answer could be dismissed if they failed to comply. When they did not, the court ordered their Answer stricken and entered a default judgment against them, noting JBI and Trude’s continued failure to provide timely discovery responses, their intentional attempt to prevent the defendant from knowing the earthmoving equipment’s location, Trude’s repeatedly making contradictory statements and engaging in perjury, Trude’s bad-faith failure to comply with orders, and the destruction of data on the laptop. JBI and Trude appealed.

Appellate Court Ruling

The appellate court stated that “Simply put, Trude’s discovery violations were not isolated and clearly reflect a pattern to obstruct litigation tactically and to avoid disclosure”, noting that the “district court consistently found no justification for Trude’s violations.”  Going further, the court noted in its ruling:

“When the district court first sanctioned Trude on December 20, 2013, it found his failure ‘inexcusable’ and intentional. When it held Trude in contempt, the district court found that he acted in bad faith and flagrant disregard for the court’s order. And when it struck JBI and Trude’s answer, it found that Trude failed to justify the nondisclosure, had acted in bad faith, provided misleading or untrue information, and testified falsely. All of the district court’s findings on Trude’s misconduct, willfulness, and unpersuasive justifications are abundantly supported by the record. For one example, the record informs us that the computer-wiping program had been installed and run at 2:39 a.m. on the morning that Trude turned the laptop over to Glenwood, and the wiping program itself had then been deleted without any disclosure to Glenwood, let alone any justification.”

As a result, the court affirmed the district court ruling.

So, what do you think?  Should the wiping of the laptop alone be enough for a default judgment?  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

If Plaintiff Wants Discovery on Defendant’s Backup Tapes, Court Rules He Must Pay for Them: eDiscovery Case Law

In Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB (W.D. Wash. July 29, 2016), Washington District Judge Robert J. Bryan, finding that the defendant had met its burden to show that retrieving electronically stored information on backup tapes “would result in an undue burden and cost to Defendant”, that the plaintiff “has not met his burden to show good cause” to overcome the defendant’s undue burden and cost argument, and that “the archived emails are ‘discoverable’ under Fed. R. Civ. P. 26(b)(1)”, ordered the defendant to “facilitate access to the discovery”, but “only at Plaintiff’s expense, payable in advance”.

Case Background

In this case, the plaintiff sought production of all emails and text messages concerning the plaintiff between employees, agents or attorneys of the defendant as well as other emails related to Group Health, the National Practitioners Data Bank [NPDB] or any former employer of the plaintiff.

The defendant objected to the request on the grounds that it was overbroad and burdensome, indicating that it did not have an email archiving system, but instead archived emails on a monthly basis on physical backup tapes, as part of a disaster relief program. The defendant indicated that in order to retrieve all responsive discovery, it would need to retrieve, restore, and review each backup tape, which at 14 hours per tape would require 1,400 hours in labor and $157,500 in costs.  The defendant also indicated that it had already searched the live email accounts of several custodians, was producing non-privileged responsive documents that it had found in those searches and referred to the emails previously produced with the defendant’s initial disclosures.

In response, the plaintiff filed a Motion to Compel Discovery Responses, indicating in a declaration that, as soon as July 2013, the plaintiff notified the defendant’s attorney of his intent to file a lawsuit (the defendant’s attorney, in his own declaration, stated he had no recollection of those conversations).

Judge’s Ruling

While acknowledging that the emails sought by the plaintiff were discoverable, Judge Bryan stated that “Defendant has met its burden to show that retrieving the electronically stored information would result in an undue burden and cost to Defendant.”  Judge Bryan also found that the plaintiff “has not met his burden” to show good cause, stating: “Tellingly, Plaintiff does not name individuals that Plaintiff believes exchanged emails about Plaintiff, nor does Plaintiff describe suspected content of the emails. Plaintiff does not even represent with any surety that responsive emails exist. Because Plaintiff has not met his burden for good cause, compelling production of the discovery at expense to Defendant is not warranted.”

However, because the archived emails were “discoverable” under Fed. R. Civ. P. 26(b)(1), Judge Bryan ruled that “upon a request by Plaintiff, Defendant should facilitate access to the discovery, but should do so only at Plaintiff’s expense, payable in advance. Plaintiff should be responsible for all costs, such as retrieving and restoring the backup tapes to an accessible format, except for costs relating to Defendant’s review of the information for privileged material (which is like any other discovery request, e.g., the live emails)…Defendant should not otherwise be compelled to produce the archived emails, and to that extent Plaintiff’s motion should be denied.”

So, what do you think?  Should the defendant have been required to bear the cost of restoring the backup tapes for 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.

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

Defendant Not Required to Produce All Documents Responsive to Search Terms: eDiscovery Case Law

Remember earlier this week, when we once again discussed the perils of not checking your wildcard terms before agreeing to them?  This case law summary is a prime example of that.  Perhaps more narrowed search terms would have reduced the review required.  Frankly, I’m surprised more documents weren’t retrieved.

In Bancpass, Inc. v. Highway Toll Administration, LLC, No. A-14-CV-1062-SS (W.D. Tex. July 26, 2016), Texas Magistrate Judge Andrew W. Austin (no relation) denied the plaintiff’s Motion to Enforce Discovery Agreements with regard to the plaintiff’s request for the defendant to produce all non-privileged documents responsive to search terms agreed to over email.

Case Background

In this defamation case between two competing highway toll mechanism companies, the parties, negotiating over email, agreed to produce ESI responsive to the following search terms:

  • Smartphone /50 toll!
  • Smartphone /50 threat
  • Smartphone /10 app!
  • Phone! /10 app!
  • Double /10 bill
  • Geotoll

Slash followed by a number means within that number of words (e.g., /50 = within 50 words).  The ! after a term indicates a wildcard term.

*My own commentary: See terms 3 and 4 above?  They call for the phone related terms within 10 words of any word that begins with “app” (because they’re looking for phone applications or apps, got it?).  As you can see here, there are 306 words in the English language that begin with “app”.  Apparently, it appears that the parties (one of whom may someday be an appellant) appreciated the thought that appending a wildcard after “app” would be an appropriate application of the wildcard in that approach.  OK, a bit extreme, but you get the point – don’t get wild with wildcards!  A simple “(application! OR app OR apps)” would have saved a lot of false hits.

Anyway, the plaintiff stated that it believed the parties agreed that “all non-privileged documents responsive to the additional search terms will be produced,” which it understood to mean that every non-privileged document the search turned up would be produced, regardless of whether it had anything to do with the parties’ dispute and the plaintiff did so in its production.  Conversely, the defendant produced only those documents that it determined were relevant to the case and withheld the rest, which the plaintiff argued was a violation of the agreement.  In response, the defendant stated that it ran the searches as requested, but that the search terms turned up over 20,000 non-privileged but also non-responsive documents. After de-duplicating the search results against previous production and identifying clearly irrelevant documents, the defendant independently reviewed the remaining 3,489 documents for responsiveness and privilege, ultimately producing 34 documents captured by the agreed search terms that were both responsive to the plaintiff’s discovery requests and were non-privileged.

Judge’s Ruling

Ruling on this issue, Judge Austin stated:

“If the Court were to construe the parties’ email correspondence on this topic to constitute a contract, it is likely that HTA’s actions would amount to a breach. The Court’s reading of the e-mail chain is that the parties agreed to produce all of the results of the searches save privileged documents. But the parties’ e-mail exchange is not a contract. Rather, it was a means to simplify and limit the scope of production responsive to BancPass’s requests for production 6, 11, 29, 38, 39, and 45. Having reviewed the attached affidavits detailing HTA’s search and review process there is no reason to believe that HTA has withheld documents it was obligated to produce. Nor is it clear that additional searches with the identified search terms would produce more documents responsive to BancPass’s requests for production. Accordingly, as to the search terms, BancPass’s motion is denied.”

So, what do you think?  Should the defendant have been required to produce all of the responsive, non-privileged documents per the email discussion?  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 Receives Terminating Sanctions and More for “Persistent Contemptuous Behavior”: eDiscovery Case Law

In Teledyne Technologies Inc. v. Shekar, No. 15-1392 (N.D. Ill., Aug. 22, 2016), Illinois District Judge Ronald A. Guzmàn, finding that the defendant “has failed to purge himself of contempt for the repeated refusal to comply with this Court’s orders”, entered judgment against the defendant, dismissed his counterclaims, and directed him to pay the plaintiff’s reasonable attorney’s fees and costs incurred as a result of having to pursue relief for the defendant’s “persistent contemptuous behavior”.

Case Background

In this case against a former employee seeking injunctive relief relating to the return of the plaintiff’s property and confidential information following the defendant’s termination, the Court issued a temporary restraining order (“TRO”) in February 2015, finding that the plaintiff “established a substantial likelihood of success with respect to its claims that Shekar, without authorization and in violation of his contractual obligations, misappropriated confidential information and trade secrets from Teledyne; intentionally deleted Teledyne computer files; engaged in deceptive trade practices; interfered with its business relationships; and converted its property, all of which threatened to cause irreparable harm to Teledyne.”  The TRO was replaced with a preliminary injunction (“PI”) in March 2015; a week later, the plaintiff filed a Motion for Rule to Show Cause why the defendant should not be held in contempt for failing to comply with the TRO and PI, which was granted.

After an evidentiary hearing, the Court found the defendant in contempt, and ordered that he purge the contempt by:

  1. produce his home computer and any other devices or electronic storage media accessible to him;
  2. produce at a minimum the three external hard drives connected to the plaintiff-issued laptop on or after his termination date, and either produce or account for the whereabouts of the other eight hard drives or other devices which have connected to the laptop since July 13, 2013;
  3. truthfully and completely answer all interrogatories served upon him in this matter under oath;
  4. turn over, without keeping any copies, all plaintiff’s information including emails and the November 2014 backup files;
  5. explain the nature of the February 3, 2015 data transfer between the plaintiff’s servers and his work laptop, and turn over any such data still accessible to him; and
  6. truthfully divulge the passcode required to access the plaintiff-issued iPhone he previously produced.

The defendant then “engaged in a series of evasions and misrepresentations seeking to vacate or modify the order that he purge himself of contempt”, which included “offensive personal attacks” on the plaintiff’s counsel and even on his own attorneys. The Court eventually ordered the defendant to turn himself in to be detained and committed to the custody of the Bureau of Prisons, but was then contacted by multiple attorneys that the defendant attempted to engage, who notified the court that he had threatened suicide. Even after the court stayed the incarceration order, the defendant still failed to comply with the order to turn over his electronic devices and data, producing a laptop without its original hard drive, an iPhone with only four calls in the call log and a hard drive that had been wiped.

Judge’s Ruling

With the defendant’s history of “manipulations”, Judge Guzmàn stated and ruled, as follows:

“Shekar is clearly in willful contempt. He has been ordered time and again to comply with the Court’s orders and has never manifested the slightest intention to do so. Worse still, he has attempted to deceive the Court at every step of the way. Both before being found in contempt and afterwards, he has displayed a total lack of respect for the truth or the integrity of the legal process. When the Court threatened fines and attorney’s fees, Shekar remained unwavering in his contemptuous behavior. When the Court threatened compulsory imprisonment, Shekar took advantage of the Court’s concern for his well-being — all the while continuing his contemptuous refusal to comply. The Court has paid a high price in the expenditure of time and resources in dealing with Shekar’s persistent misconduct as has the plaintiff. The record is clear that ordinary sanctions have been and will continue to be unavailing, and Shekar leaves the Court with no choice but to impose harsh sanctions, which are not only appropriate, but required.

For the reasons stated above, the Court enters judgment against Shekar on all of Teledyne’s claims, dismisses his counterclaims, and, in addition to the usual bill of costs, assesses Shekar Teledyne’s reasonable attorney’s fees and costs stemming from its arduous efforts in demonstrating Shekar’s contempt.”

So, what do you think?  Were the extreme sanctions deserved?  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 Rejects Discovery for Additional Time Period, But Grants Additional Discovery on Termination Plan: eDiscovery Case Law

In Blodgett et. al. v. Siemens Industry, Inc., No. 13-3194 (E.D. N.Y., Aug. 9, 2016), New York Magistrate Judge A. Kathleen Tomlinson denied the plaintiff’s motion to compel the defendant to respond to the first two requests in its third request for production, but granted the motion regarding the plaintiff’s third request for ESI regarding a division-wide reduction-in-force plan.

Case Background

In this case alleging improper termination, the plaintiffs sued after the defendant allegedly promised them continued employment and then terminated their jobs in April 2013.  Previously, the Court had directed the defendant to produce additional ESI from custodians previously agreed upon by the parties as well as two new custodians, but when the plaintiff filed a motion to compel in July 2015 regarding alleged deficiencies in the defendant’s responses, the Court denied the plaintiff’s motion, without prejudice and with the right to renew, on the grounds that it was not in compliance with Local Rule 37.1.

In its renewed motion, the plaintiffs sought production of additional emails that included a new three-month time frame (October 1, 2012 to December 31, 2012) not previously requested.  The plaintiffs also sought emails related to the rejection of a proposal for an additional sales manager position that the plaintiff argued “refers to Defendant working on a possible reduction of staff in August 2012”.  The defendant claimed that the quote in one particular email (“look at the final territory breakdown. While we worked on this last August, the documents need to be refreshed and double checked”) related to territory breakdowns, not contemplation of a reduction-in-force and one of the custodians (Richard Lattanzi) testified that there were no discussions regarding reduction-in-force in August 2012.  The plaintiffs also requested all documents related to “Project Merlin,” a division-wide reduction-in-force plan, contending that those documents were relevant, and that the defendants had not yet produced any documentation about this project.

Judge’s Ruling

Regarding the first request, Judge Tomlinson, in denying the request, stated:

“Having considered the parties’ arguments in light of these standards, the Court declines to compel Defendant to respond to Request No. 1. As Defendant points out in its opposition, compliance with this document request would require Defendant to search the ESI of all seven custodians using a third set of date parameters (i.e., October 1, 2012 to December 31, 2012) not previously agreed to by the parties or authorized by the Court. Plaintiffs simply have not provided the Court with a basis beyond speculation to believe that relevant information is likely to be uncovered as a result of requiring Defendant to undertake an additional search for the proposed three-month period.”

Judge Tomlinson, also denied the second request as well, stating “In short, Lattanzi’s deposition testimony does not support the additional discovery sought in Request No. 2. To the extent Plaintiffs wished to determine what Schlesinger meant in his March 2013 email and whether that email does, in fact, refer to an August 2012 reduction in force, they could have questioned Schlesinger about the email during his deposition, which was conducted more than four months after Defendant produced the email on April 1, 2014… And although Plaintiffs assert that “Mr. Lattanzi’s deposition revealed additional information that requires supplemental disclosure by Defendant,” Plaintiffs have not identified this alleged “additional information.” Their conclusory statement is insufficient to compel the discovery sought in Request No 2.”

However, Judge Tomlinson, granted the plaintiff’s third request, noting “From the parties’ submissions and their representations of Lattanzi’s deposition testimony, it appears to the Court that Project Merlin was an overarching reduction-in-force encompassing not only Plaintiffs’ group, but other groups within Defendant’s Building Technologies division. The Court therefore finds that documents, information, and correspondence regarding a particular reduction-in-force within Project Merlin which resulted in the termination of Plaintiffs’ employment are relevant and should be produced. However, Plaintiffs are not entitled to discover information about reductions-in-force in other groups/divisions which were affected pursuant to Project Merlin but were unrelated to Plaintiffs’ termination.”

So, what do you think?  Did the Court make the right decisions?  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.

There’s a New TAR Case Law Primer Published by The Sedona Conference: eDiscovery Best Practices

One of the major topics discussed during last month’s panel discussion at The Masters Conference and also last week during our ACEDS webinar was the debate over the current state of judiciary acceptance of technology assisted review (TAR).  Whether intentional or not, to help with that debate The Sedona Conference® has just published the Public Comment Version of a new TAR Case Law Primer.

This was a project of The Sedona Conference Working Group on Electronic Document Retention and Production (WG1).  As noted in the Preface of the Primer, it is “the product of more than a year of development and dialogue within WG1. It was originally conceived as a chapter of a larger Commentary on the use of TAR in civil litigation, but the rapid development of the case law, the volume of court decisions, and the importance of those decisions in shaping legal practice in real time required that an exposition of the case law be made available on a faster timetable than WG1’s usual dialogue and consensus-building process allowed. For that reason, the Primer strives to present the case law in as neutral a fashion as possible. It avoids making any recommendations regarding particular TAR methodologies, nor does it propose any principles, guidelines, or best practices for TAR application, independent of those suggested by the courts themselves.”

The 33 page PDF file covers several topics related to Technology Assisted Review, including:

  • Da Silva Moore: Obviously as the first case to authorize the use of TAR, Judge Andrew Peck’s Da Silva Moore ruling merits its own section as a logical starting point, with the advantages of TAR and the emphasis on process (including advice to “follow the Sedona Cooperation Proclamation model”);
  • Other Courts’ Encouragement of the Use of TAR and Additional Cases Reflecting the Parties’ Use of TAR: The Primer touches on other cases where the use of TAR was either encouraged or used;
  • Disputed Issues Regarding TAR: This is the significant portion of the Primer, touching on issues ranging from efforts by requesting parties (and by courts) to compel the use of TAR, two contradictory decisions about whether it’s OK to switch to TAR in the middle of discovery, cases that address the appropriateness of using search terms to cull the document population before applying TAR, issues associated with disclosure of seed/training/validation sets and advance court approval of the use of TAR (such as the Dynamo Holdings case, which recently had another significant opinion about the results of the TAR process, despite cooperation between the parties).

The Primer also provides a review of evolving views of TAR and the state of international adoption, with discussion of both the Pyrrho Investments and Brown v BCA Trading cases.  The final section is an Index of Cases (at least those covered in the Primer).

The Conclusion section (just before the Index of Cases) offers this conclusion:

“While the case law reflects a broad consensus that TAR is an acceptable search and review methodology, certain issues regarding the details of its use remain unresolved. The general principles set forth in the cases discussed in this Primer should provide useful guidance to courts and parties seeking to use TAR to achieve the goals of Federal Rule 1 (the just, speedy, and inexpensive resolution of legal proceedings) and Rule 26(b)(1) (proportionality). The Bench and Bar should continue to actively monitor research and case law developments in this area.”

You can download the Primer here.  The Sedona Conference encourages Working Group Series members and others to spread the word and share this link so they can get comments in before the public comment period closes on October 15, 2016 (consider the word spread!). Questions and comments regarding the Primer may be sent to comments@sedonaconference.org.

So, what do you think? What do you consider to be the state of judicial acceptance of TAR?  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 Declines to Sanction Defendant for Deletion of Former Employee’s Email Account: eDiscovery Case Law

In Moore v. Lowe’s Home Centers, LLC, No. 14-01459 (W.D. Wash., June 24, 2016), Washington District Judge Robert J. Bryan denied without prejudice the plaintiff’s Motion for Sanctions for Defendant’s Willful Spoliation of Evidence for deleting her email account after she was terminated, finding a lack of duty preserve or bad faith on the defendant’s part and minimal (if any) prejudice to the plaintiff.

Case Background

In this case involving allegations of unlawful employment practices by the defendant, the plaintiff (employed at the time by the defendant) emailed the defendant’s Human Resources department and other management about her concerns “on at least eleven occasions, articulating concerns about, inter alia, other employees ‘gang[ing] up’ on her, ‘glaring and…nonverbal harassment,’ and criticism of Plaintiff’s frequent restroom use during pregnancy”. At least on one occasion, one of the defendant’s employees sent correspondence to HR suggesting that the plaintiff might sue. The defendant ultimately terminated the plaintiff in February 2013 and the defendant’s “Legal Counsel was allegedly present for at least one meeting where Plaintiff’s termination was discussed.”

On April 25, 2013, the plaintiff’s attorney demanded that the defendant produce the plaintiff’s personnel file, which, according to the Court, formally placed the defendant on notice of potential litigation.  However, according to the defendant, the plaintiff’s email account was deleted on March 30, 2013 as part of a nightly-scheduled exchange task, which automatically deleted employees’ accounts on a certain date following their termination unless the defendant intervened, for example, when there was a Legal Hold.  The defendant allegedly limited its management and HR employees to 50MB of storage capacity in their inboxes, requiring employees to regularly clean out their inboxes manually or with automatic settings.  HR employees had deleted emails from the plaintiff that they acknowledged included emails that the plaintiff produced in discovery.  The plaintiff filed a Motion for Sanctions for Defendant’s Willful Spoliation of Evidence, requesting terminating sanctions.

Judge’s Ruling

Judge Bryan stated that the “parties’ briefing focuses on four issues, which are the focus of the undersigned’s analysis: (1) Defendant’s duty to preserve; (2) whether Defendant acted willfully or in bad faith; >(3) prejudice to Plaintiff; and (4) the appropriate sanction.”  Taken in turn, Judge Bryan ruled that:

  1. “Based on the parties’ submissions, Defendant did not have a duty to preserve Plaintiff’s emails prior to their deletion. Most of Plaintiff’s emails to HR and management do not raise ‘potential claims,’ but rather raise Plaintiff’s concerns about workplace gossip and challenging relationships.”;
  2. “Defendant was not on notice of potential litigation and had no duty to preserve Plaintiff’s emails until April 25, 2013, so Defendant did not act in bad faith by deleting Plaintiff’s emails, especially where there is no evidence that Defendant deleted them in violation of Defendant’s Records Management Policy or its own consistent records practice.”;
  3. “Even if Defendant willfully violated its duty to preserve Plaintiff’s emails, Plaintiff suffers only minimal prejudice, if any. Plaintiff produced eleven emails that substantiate much of the factual basis for most of her claims.”; and
  4. “Because Plaintiff asks only for the sanction of default, a request the Court denies, other remedies need not be addressed.”

As a result, Judge Bryan denied without prejudice the plaintiff’s Motion for Sanctions for Defendant’s Willful Spoliation of Evidence.

So, what do you think?  Should the duty to preserve have been earlier?  If so, would that have changed the result?  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.

English Court Rules that Respondents Can Use Predictive Coding in Contested Case: eDiscovery Case Law

In Brown v BCA Trading, et. al. [2016] EWHC 1464 (Ch), Mr. Registrar Jones ruled that, with “nothing, as yet, to suggest that predictive coding will not be able to identify the documents which would otherwise be identified through, for example, keyword search”, “predictive coding must be the way forward” in this dispute between parties as to whether the Respondents could use predictive coding to respond to eDisclosure requests.

The May 17 order began by noting that “the question whether or not electronic disclosure by the Respondents should be provided, as they ask, using predictive coding or via a more traditional keyword approach instead” was “contested”.  With the “majority of the documents that may be relevant for the purposes of trial…in the hands of the First Respondent”, the order noted that fact is “relevant to take into account when considering the Respondents’ assertion, presented from their own view and on advice received professionally, that they think predictive coding will be the most reasonable and proportionate method of disclosure.”  The cost for predictive coding was estimated “in the region of £132,000” whereas the costs for a key word search approach was estimated to be “at least £250,000” and could “even reach £338,000 on a worst case scenario” (emphasis added).  In the order, it was acknowledged that the cost “is relevant and persuasive only to the extent that predictive coding will be effective and achieve the disclosure required.”

With that in mind, Mr. Registrar Jones stated the following: “I reach the conclusion based on cost that predictive coding must be the way forward. There is nothing, as yet, to suggest that predictive coding will not be able to identify the documents which would otherwise be identified through, for example, keyword search and, more importantly, with the full cost of employees/agents having to carry out extensive investigations as to whether documents should be disclosed or not. It appears from the information received from the Respondents that predictive coding will be considerably cheaper than key word disclosure.”

The order also referenced the ten factors set out by Master Matthews in the Pyrrho Investments case (the first case in England to approve predictive coding) to help determine that predictive coding was appropriate for that case, with essentially all factors applying to this case as well, except for factor 10 (the parties have agreed on the use of the software, and also how to use it).

So, what do you think?  Do you think parties should always have the right to use predictive coding to support their production efforts absence strong evidence that it is not as effective as other means?  Please share any comments you might have or if you’d like to know more about a particular topic.

For more reading about this case, check out Chris Dale’s post here and Adam Kuhn’s post here.

Don’t forget that tomorrow at 1:00pm ET, ACEDS will be conducting a webinar panel discussion, titled How Automation is Revolutionizing eDiscovery, sponsored by CloudNine.  Our panel discussion will provide an overview of the eDiscovery automation technologies and we will really take a hard look at the technology and definition of TAR and the limitations associated with both.  This time, Mary Mack, Executive Director of ACEDS will be moderating and I will be one of the panelists, along with Bill Dimm, CEO of Hot Neuron and Bill Speros, Evidence Consulting Attorney with Speros & Associates, LLC.  Click on the link here to register.

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 Refuses to Order Defendant to Use Technology Assisted Review: eDiscovery Case Law

We’re beginning to see more disputes between parties regarding the use of technology assisted review (TAR) in discovery.  Usually in these disputes, one party wants to use TAR and the other party objects.  In this case, the dispute was a bit different…

In Hyles v. New York City, No. 10 Civ. 3119 (AT)(AJP) (S.D.N.Y. Aug. 1, 2016), New York Magistrate Judge Andrew J. Peck, indicating that the key issue before the court in the discovery dispute between parties was whether (at the plaintiff’s request) the defendants can be forced to use technology assisted review, refused to force the defendant to do so, stating “The short answer is a decisive ‘NO.’”

Case Background

In this discrimination case by a former employee of the defendant, after several delays in discovery, the parties had several discovery disputes.  They filed a joint letter with the court, seeking rulings as to the proper scope of ESI discovery (mostly issues as to custodians and date range) and search methodology – whether to use keywords (which the defendants wanted to do) or TAR (which the plaintiff wanted the defendant to do).

With regard to date range, the parties agreed to a start date for discovery of September 1, 2005 but disagreed on the end date.  In the discovery conference held on July 27, 2016, Judge Peck ruled on a date in between what the plaintiff and defendants – April 30, 2010, without prejudice to the plaintiff seeking documents or ESI from a later period, if justified, on a more targeted inquiry basis.  As to custodians, the City agreed to search the files of nine custodians, but not six additional custodians that the plaintiff requested.  The Court ruled that discovery should be staged, by starting with the agreed upon nine custodians. After reviewing the production from the nine custodians, if the plaintiff could demonstrate that other custodians had relevant, unique and proportional ESI, the Court would consider targeted searches from those custodians.

After the parties had initial discussions about the City using keywords, the plaintiff’s counsel consulted an ediscovery vendor and proposed that the defendants should use TAR as a “more cost-effective and efficient method of obtaining ESI from Defendants.”  The defendants declined, both because of cost and concerns that the parties, based on their history of scope negotiations, would not be able to collaborate to develop the seed set for a TAR process.

Judge’s Ruling

Judge Peck noted that “Hyles absolutely is correct that in general, TAR is cheaper, more efficient and superior to keyword searching” and referenced his “seminal” DaSilva Moore decision and also his 2015 Rio Tinto decision where he wrote that “the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.”  Judge Peck also noted that “Hyles’ counsel is correct that parties should cooperate in discovery”, but stated that “[c]ooperation principles, however, do not give the requesting party, or the Court, the power to force cooperation or to force the responding party to use TAR.”

Judge Peck, while acknowledging that he is “a judicial advocate for the use of TAR in appropriate cases”, also noted that he is also “a firm believer in the Sedona Principles, particularly Principle 6, which clearly provides that:

Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”

Judge Peck went on to state: “Under Sedona Principle 6, the City as the responding party is best situated to decide how to search for and produce ESI responsive to Hyles’ document requests. Hyles’ counsel candidly admitted at the conference that they have no authority to support their request to force the City to use TAR. The City can use the search method of its choice. If Hyles later demonstrates deficiencies in the City’s production, the City may have to re-do its search.  But that is not a basis for Court intervention at this stage of the case.”  As a result, Judge Peck denied the plaintiff’s application to force the defendants to use TAR.

So, what do you think?  Are you surprised by that ruling?  Please share any comments you might have or if you’d like to know more about a particular topic.

Don’t forget that next Wednesday at 1:00pm ET, ACEDS will be conducting a webinar panel discussion, titled How Automation is Revolutionizing eDiscovery, sponsored by CloudNine.  Our panel discussion will provide an overview of the eDiscovery automation technologies and we will really take a hard look at the technology and definition of TAR and the limitations associated with both.  This time, Mary Mack, Executive Director of ACEDS will be moderating and I will be one of the panelists, along with Bill Dimm, CEO of Hot Neuron and Bill Speros, Evidence Consulting Attorney with Speros & Associates, LLC.  Click on the link here to register.

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.