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Case Law

Merely Stating That ESI Request Is Not Relevant Or Proportional Is Not Sufficient, Court Rules: eDiscovery Case Law

In Digital Ally, Inc. v. Utility Associates, Inc., No. 14-2262-CM-GEB (D. Kan. Apr. 15, 2016), Kansas Magistrate Judge Gwynne E. Birzer granted the plaintiff’s motion to compel discovery, overruling the defendant’s objections that the request was neither relevant nor proportional to the issues in this case, because the defendant “has not expounded on its objections to relevance or proportionality under Fed. R. Civ. P. 26(b)(1)”.

Case Background

In this case for tortious interference stemming from the defendant’s hiring of a former sales manager of the plaintiff, the two parties were able to successfully resolve early disputes regarding discovery.  However, during the deposition of the defendant’s former vice president in November 2015, twelve categories of unproduced documents were identified which the plaintiff believed to be responsive to its First Requests for Production.  Communications between the parties resolved discussions regarding six of the categories, but when the parties could not agree on the other six categories, the plaintiff filed a Motion to Compel, seeking the remaining six categories of documents.  Subsequently, the plaintiff agreed to withdraw its motion regarding four of the requests, leaving requests for two categories for the court to address.

The defendant argued the motion to compel should be denied because it was filed more than ten months after the plaintiff served its initial Requests and was untimely under D. Kan. Rule 37.1(b). The defendant also maintained that the plaintiff failed to properly confer before filing its motion, as required by D. Kan. Rule 37.2.  With regard to the individual requests, the defendant argued the first request was “neither relevant nor proportional to the issues in this case” and also objected to the request as overbroad for failure to identify custodians of, and provide search terms for, any alleged e-mails as required by the Scheduling Order.  The defendant objected to the second request on the basis of relevance.

Judge’s Ruling

With regard to the defendant’s objection regarding the timeliness of the request, Judge Birzer disagreed, finding that, although the plaintiff failed to file its motion within 30 days after the defendant’s initial discovery responses, “the motion was filed within 30 days of the defendant’s final communication regarding production of the six categories of documents which became an issue after [the former VP’s] deposition”.  With regard to the defendant’s contention that the plaintiff failed to properly confer before filing its motion, Judge Birzer also disagreed with that, ruling that “[b]ecause the parties communicated both in writing and by phone regarding the disputed requests, the Court finds the duty to confer under Rule 37.2 is satisfied”.

With regard to the defendant’s objection to the first request, Judge Birzer stated:

“Aside from simply stating the terms, Defendant has not expounded on its objections to relevance or proportionality under Fed. R. Civ. P. 26(b)(1), and those objections are overruled. Because Plaintiff brings multiple claims of tortious interference with its business, the information sought by the request appears relevant on its face, and Defendant has not met its burden to demonstrate otherwise.  Additionally, any concerns regarding overbreadth or proportionality may be addressed by following the guidelines of the Scheduling Order.”

With regard to the defendant’s objection to the second request, Judge Birzer determined that the defendant “has not met its burden to demonstrate lack of relevance; therefore the objection is overruled.”  With all objections overruled, Judge Birzer granted the motion to compel with instructions for the plaintiff to resubmit the first request following the terms of the Scheduling Order.

So, what do you think?  Do you think we’ll see more cases where objections are overruled because they don’t provide specificity regarding the objections?  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.

Failure to Extend Preservation Hold to Headquarters Does Not Lead To Adverse Inference Sanction: eDiscovery Case Law

In Botey v. Green, et. al., No. 12-01520 (M.D. Pa., April 4, 2016), Pennsylvania District Judge Robert D. Mariani denied the plaintiff’s request for an adverse inference sanction for the defendants’ failure to preserve trucking logs related to an accident between the plaintiff and a truck driver working for the defendant’s company, but did agree not to allow the defendants to prove the contents of the destroyed documents by other means or argue their contents in dispositive motions or at trial.

Case Background

In this lawsuit arising out of a traffic accident between the plaintiff and a truck driver (Robert Green) working for the defendant’s company in May 2011 resulting in serious injury to the plaintiff, the parties originally planned to take the driver’s deposition during the normal discovery period.  However, in February 2014, it was determined that the truck driver suffered from dementia and was therefore unable to be deposed.  As a result, the plaintiff sought expanded discovery from the defendants thirty days’ worth of the truck driver’s trip documents and logs that the trucking company maintains for each of its truck drivers, whereas the defendants argued that the plaintiff was only entitled to logs going back 34 hours before the accident.  After telephone arguments, the Court compromised and ordered the defendants to provide fifteen days of logs.

However, the defendants only produced four additional days of logs, not the full fifteen that the Court ordered.  The plaintiff then filed a Motion for Sanctions, which requested “that an adverse inference jury instruction be read against Defendants at the time of trial” as well as “an Order precluding Defendants from arguing in dispositive motions that Plaintiff lacks evidence to prove his corporate negligence claims against Defendants FFE and Conwell based on the documents destroyed.”

The defendants’ trucking logs were administered and maintained by a third party vendor, which only stored the electronic data from the trucks for a period of six months before automatically deleting them. The plaintiff sent litigation hold letters as early as October 2011, but sent them to a local office in Norman, Oklahoma rather than to the defendants’ corporate office in Dallas, Texas and the defendants acknowledged that the letters were never forwarded to the corporate office.

Judge’s Ruling

Judge Mariani noted that “[u]nder Pennsylvania law, to determine the penalty for a spoliation of evidence claim, Plaintiff must show (1) the degree of fault of Defendant in altering or destroying the evidence (2) the degree of prejudice Plaintiff has suffered, and (3) the availability of a lesser sanction that will protect Defendant’s rights and deter future similar conduct.”

Having already found that the defendants were under a legal duty to preserve the logs, Judge Mariani ruled that “Plaintiff has not shown that he is entitled to the ‘adverse inference’ sanction”, noting that “Plaintiff does not explain what ‘adverse inference’ he wants.”  Continuing, Judge Mariani stated that “It is too great a leap to conclude that, if the destroyed records were preserved, they would have shown such evidence of a loss by Green of his mental faculties that Defendants would have been placed on notice that he was suffering from dementia and was likely to cause accidents and therefore advance Plaintiff’s negligence claims against FFE and Conwell.”

As a result, Judge Mariani denied the plaintiff’s request for an adverse inference sanction, noting that failure to preserve the logs “appears to be mainly carelessness in failing to preserve documents from destruction in the ordinary course of business”.  However, Judge Mariani also noted that “while the Court will not grant Plaintiff’s request for an adverse inference, it is only logical and fair that Defendants will not be allowed to rely on the missing records in support of any dispositive motions. This is for obvious reasons: Defendants cannot claim that information in records that was destroyed would exonerate them and expect the Court to permit such an argument.”

So, what do you think?  Should the defendants have received the requested adverse inference 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.

Citing Proportionality Concerns, Court Grants Plaintiff’s Motion for Protective Order: eDiscovery Case Law

In Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., No. 1:14-cv-01734-WTL-DML (S.D. Ind. Mar. 24, 2016), Indiana Magistrate Judge Debra McVicker Lynch, citing proportionality concerns, granted the plaintiff’s motion for a protective order and ordered that the defendant was prohibited from obtaining the discovery sought by the defendant’s subpoenas from a major shareholder of the plaintiff.

Case Background

In this royalty dispute between parties, the defendant filed a counterclaim contending that the franchise agreements did not permit the type of audits requested by the plaintiff and that “the audits were based on flawed – and knowingly flawed – methodology and are invalid.”  To support its counterclaim, the defendant filed subpoenas seeking information from a major shareholder (Privet Fund) of the plaintiff that included production of 23 categories of documents and Rule 30(b)(6) testimony from shareholder witnesses.

The plaintiff asserted that the subpoenas were an “improper fishing expedition” and that they sought information “outside the proper bounds of discovery”, contending that the shareholder’s Schedule 13D shows it did not begin to amass large amounts of the plaintiff’s shares until after the plaintiff made the business decision to conduct audits of its non-traditional franchisees like the defendant company.  While the court denied the plaintiff’s request to quash the defendant’s subpoenas, it allowed the plaintiff to seek relief through a motion for protective order, which the plaintiff did.

Judge’s Ruling

Determining that the plaintiff “would be required to devote employee time and effort, as well as attorney time, effort, and expense, to review the documents requested by Hattenhauer from Privet Fund, and to devote substantial attorney time and expense for traveling to, preparing for, and cross-examining Privet Fund Rule 30(b)(6) deponent witness(es) in Atlanta, Georgia”, Judge Lynch ruled that the plaintiff had standing to challenge the subpoenas, even though they were issued against a non-party.

With regard to the information requested in the defendant’s subpoenas, Judge Lynch stated that “[t]he categories of information are wide-ranging and include essentially all documents and information relating to Privet Fund’s November and December 2015 letters to Noble Roman’s board of directors, to Privet Fund’s investigation and analysis of Noble Roman’s operations, management, finances, and business plans, and to Privet Fund’s acquisition of Noble Roman’s stock. The subpoenas also seek any documents and information about Noble Roman’s audits of its franchisees.”

Continuing, Judge Lynch cited Rule 26(b), stating that the defendant “beats the drum of ‘relevancy.’ It asserts that all of its deposition topics and document requests are ‘relevant.’ That’s not good enough. Hattenhauer never attempts to demonstrate that the discovery is in any way proportional to the needs of this case, considering such things as the amount in controversy, the importance of the information in resolving contested issues, whether the burden of the discovery outweighs its likely benefits, whether the information can be obtained from other and more convenient sources, or whether the information is cumulative to other discovery Hattenhauer has obtained.”

As a result, Judge Lynch found that “Hattenhauer’s documents and deposition subpoenas to Privet Fund constitute discovery run amok. Asking Privet Fund to provide every document and every piece of information it has – including information it may have obtained orally from Noble Roman’s personnel – about every aspect of Noble Roman’s business operations, finances, marketing plans, and management structure is discovery too far afield from the contested issues in this case.”  Therefore, Judge Lynch granted the plaintiff’s motion for a protective order.

So, what do you think?  Were the defendant’s information requests disproportionate to the case?  Or should its subpoenas have been granted?  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.

Defendant Sanctioned for Loss of Emails During Provider Switch, But No Sanction For Wiped Hard Drive: eDiscovery Case Law

In Core Laboratories LP v. Spectrum Tracer Services, LLC et. al., No. 11-1157 (W.D. Okla. Mar. 7, 2016), Oklahoma District Judge Vicki Miles-LaGrange granted the plaintiff’s motion for sanctions for emails that were not preserved during an email provider switch via an adverse inference instruction, but denied the plaintiff’s motion for sanctions for deleting files and for wiping the computer of one of its employees.

Case Background

The plaintiff contended that the defendants had a duty to preserve evidence in the wake of and after this litigation commenced, and identified three instances where it contended that defendants intentionally destroyed relevant evidence in this matter, including (1) lost emails relating to correspondence between the defendant and a third party (2) deleting computer files from one defendant employee’s hard drive; and (3) wiping files from another employee’s computer. The defendants contended that the plaintiff had not identified any relevant evidence that has been lost nor could it identify any prejudice it suffered by defendants’ actions.

Judge’s Ruling

Judge Miles-LaGrange began by looking at the recently amended FRCP 37, noting that, in Rule 37(e), spoliation sanctions are only proper when the accused party had a duty to preserve because it knew or should have known that litigation was imminent and if the adverse party was prejudiced.

With regard to the loss of emails between the defendant and a third party, Judge Miles-LaGrange ruled that “Core has shown it was prejudiced by not having access to Spectrum’s emails prior to June 2011. Specifically, the Court finds that this litigation was initiated on March 11, 2011, and Brown testified that relatively quickly after this lawsuit was filed, Spectrum took steps to change its email service provider to ensure every Spectrum email was captured to comply with the requirements of this lawsuit. While Brown testified that Spectrum’s previous email service provider did not have the capability to capture archive emails, the Court finds it was not unreasonable for Spectrum to have taken steps to ensure that any emails prior to switching over to its new email service provider were saved. The Court infers that because all emails prior to June 2011 were lost, emails regarding the formation of Spectrum and the manufacturing of its tracing systems would have been lost too. Since Faurot has confirmed that TPM used one of Core’s pumps as a prototype to produce Spectrum’s pumps, the Court finds that the lack of information available because of Spectrum’s email loss is prejudicial to Core.”

Judge Miles-LaGrange determined that an appropriate sanction would be an adverse inference jury instruction presuming any potential communications that were lost due to the defendant changing its email service provider would have been unfavorable to the defendant.

With regard to the deleted files from one employee’s computer, Judge Miles-LaGrange found “that defendants admitted that Morrison’s personal files were deleted from the hard drive and, further, the hard drive was turned over to Core and has been the subject of an ongoing forensic analysis, during this litigation, to recover all of Core’s proprietary software from the hard drive”.  With regard to the wiped hard drive of another employee, because the defendant testified that anything needed to be kept from his computer was exported to an external hard drive prior to the computer being wiped, Judge Miles LaGrange found the plaintiff suffered no prejudice as a result of this action ether and denied the plaintiff’s motion for sanctions for the deleted files and wiped drive.

So, what do you think?  Should the defendants have been sanctioned for the deleted files and the wiped drive?  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.

Beep, Beep! Terminating Sanctions against Defendant for Spoliation Affirmed on Appeal: eDiscovery Case Law

As Wile E. Coyote has learned, you don’t want to mess with the Roadrunner.  Especially if you’ve been found to have willfully spoliated data…  :o)

In Roadrunner Transportation Services, Inc. v. Tarwater, Nos. 15-55448 and 14-55529 (9th Cir., Mar. 18, 2016), the Ninth Circuit affirmed the district court’s entry of default judgment and award of attorneys’ fees in favor of the plaintiff, ruling that the district court did not abuse its discretion by entering default judgment as a sanction for the defendant’s deletion of data from his laptop computers .  The Ninth Circuit also affirmed the district court’s award of $325,000 in attorneys’ fees to the plaintiff and also affirmed the lower court ruling to limit the plaintiff’s compensatory damages to the four customers specifically identified in the First Amended Complaint.

In considering the defendant’s appeal of the district court’s entry of default judgment and award of attorneys’ fees in favor of his former employer and the plaintiff’s cross-appeal of the district court’s compensatory damages award, the Ninth Circuit ruled, as follows:

“1. The district court did not abuse its discretion by entering default judgment as a sanction for Tarwater’s deletion of data from his laptop computers…There was ample evidence that Tarwater deleted emails and files on his laptops after receiving multiple preservation demands from Roadrunner, and even after the court explicitly ordered Tarwater to preserve “all data” on his electronic devices. In addition to Tarwater’s own admissions, a third-party computer expert concluded that files on one of Tarwater’s devices had been deleted and overwritten during the litigation, and that the deletions likely “bypasse[d] the [computer’s] Recycle Bin” through a user-initiated process. In light of the evidence of spoliation, and the nature of Roadrunner’s claims, the district court did not clearly err in finding that Tarwater willfully destroyed the data, that Roadrunner had been deprived of its “primary evidence of Tarwater’s alleged misappropriation and related misconduct,” and that a less drastic sanction could not have adequately redressed the prejudice to Roadrunner.”

“2. The district court did not abuse its discretion by awarding Roadrunner $325,000 in attorneys’ fees…The court carefully considered the billing entries and reasonableness of the hourly rates for Roadrunner’s attorneys and reduced the award to reflect an appropriate level of staffing for the case. The district court also properly accounted for the degree of success achieved by Roadrunner, as well as the public’s interest in protecting trade secrets.”

“3. The district court properly limited Roadrunner’s compensatory damages to the four customers specifically identified in the First Amended Complaint.”

“AFFIRMED.”

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

We’re just one week away from the pre-conference seminars at ACEDS!  For the first time, ACEDS is offering a number of pre-conference events focused on some of the most important issues and trends in eDiscovery. These include a cybersecurity seminar addressing the recent data breaches at major law firms, a networking forum hosted by Women in E-Discovery, and the Law Student Blogger/Social Invitational pre-conference seminar with Ari Kaplan, Rob Robinson, Robin Thompson and me!  If you already have a blog or are interested in starting a blog, join us and learn about the benefits of blogging, how to get started, establishing your blogging workflow, avoiding liability and leveraging social media for professional and personal benefit.  Hope to see you in New York on Monday!

Image © Warner Bros.

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

Court Denies Plaintiff’s Request for Native ESI Format, Approves Request for Index: eDiscovery Case Law

In Stormo v. City of Sioux Falls, et. al., No. 12-04057 (D. S.D., Feb. 19, 2016), South Dakota District Judge Karen E. Schreier, ruling on several motions, denied the plaintiff’s motion to compel with regard to requiring the defendants to provide electronically stored information in its native format and metadata for these documents, but granted it with regard to providing an index explaining information about the documents.

Case Background

In this pro se lawsuit where the plaintiff sued the defendants for violations of his civil rights with respect to his status as a landowner and landlord, the court granted the defendants’ motion for summary judgment in part. The plaintiff then filed a second amended complaint with additional claims.  As Judge Schreier noted, “Discovery is ongoing and fraught with complications. Stormo has filed numerous motions, often raising unrelated, irrelevant, or indecipherable arguments. Defendants have neither responded to all of Stormo’s discovery requests adequately nor complied with all of the court’s orders sufficiently.”

In the plaintiff’s latest motion, the plaintiff moved the court to, among other things, compel defendants to provide electronically stored information in its native format, provide metadata for these documents, and provide an index explaining information about the documents.

With regard to the metadata, the plaintiff argued that metadata would allow him to discover whether the data is “forensically sound,” specifically: when it was created, accessed, or modified.  Countering, the defendant argued that providing the metadata would be overly burdensome and stated that they have no system that tracks the metadata sought by the plaintiff and they would have to go through each document and retrieve the metadata from the program with which the document was created.  As for the request for the index, the plaintiff claimed that the defendants produced a jumbled group of documents which is not labeled or indexed in any manner, but the defendants argued that they produced documents in an organized fashion and in the form kept in the ordinary course of business.

Judge’s Ruling

Judge Schreier began her analysis by citing Federal Rule of Civil Procedure 34(b)(2)(E), which states:

“(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form…”

With regard to the plaintiff’s request to compel the defendants to reproduce documents in their native format, Judge Schreier stated that “He claims that he made a general request for all electronically stored information in its native format at the time of his initial document request…He does not, however, explain what is wrong with the format in which defendants have produced the documents. Therefore, the motion to compel is denied as it concerns his request to reproduce documents in their native format.”

With regard to the request for metadata, Judge Schreier stated:

“Defendants’ response may fail to articulate how this discovery is extraordinary or unusual, but Stormo has failed to show the metadata’s relevancy to his claims. His motion to compel argues that he wants the metadata to be sure that the documents were not created for or altered in anticipation of litigation…Stormo has not explained why he thinks defendants might have done this. There is no indication that they have altered the documents. Stormo fails to convince the court that the metadata is relevant to his claims, the request falls outside of the parameters of discovery, and therefore, his motion to compel is denied as it concerns his request for metadata.”

As for the request for an index, Judge Schreier ruled on this point in favor of the plaintiff, noting that “Stormo requests only “a) the bates number or other identifier of the document; b) the name of the person who is custodian of the document; c) the original source and author of the document; and d) the document request number and request number of any requests that the document is responsive to” for each document…Supplying this information is not overly burdensome on defendants. Therefore, Stormo’s motion to compel is granted as it concerns preparation of an index that supplies the information described above.”

So, what do you think?  Was the plaintiff’s request for native format documents and metadata unreasonable?  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 Request for Cost Reimbursement for Hosted eDiscovery Database: eDiscovery Case Law

In Associated Electric & Gas Insurance Services, et. al. v. BendTec, Inc., No. 14-1602 (D. Minn., Feb. 24, 2016), Minnesota District Judge Michael J. Davis found that the decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp. to deny certain eDiscovery costs to be persuasive and ruled that “the costs of creating and maintaining an electronic platform for e-discovery are not recoverable under § 1920(4)”, denying the prevailing defendant’s request for reimbursement of over $123,000 in costs to maintain their ESI database.

Case Background

The defendant asserted that the plaintiffs produced approximately 19 gigabytes of data from a prior related lawsuit and it retained eDiscovery vendors to create and maintain an electronic platform for these documents (at a cost of $90 per gigabyte per month), so they could be processed and hosted in a viewable format.  The defendant eventually added its additional 192 gigabytes of data in preparation for production to the plaintiffs, which was hosted at the same $90 per gigabyte per month rate.

After the court entered judgment in favor of the defendant in June 2015, the defendant submitted its bill of costs to the Clerk of Court in July 2015 and the plaintiffs filed their objection to the bill of costs in August 2015.  The Clerk of Court entered a Cost Judgment on October 15, 2015 denying the taxation of costs by the defendant on the basis that fees for electronic discovery are not taxable by the Clerk. The defendant subsequently filed a motion for review of cost judgment, seeking to recover $126,970.80 in costs incurred by creating and maintaining an electronic database to hold documents produced by the plaintiffs and collecting and securing its own documents.  Following an objection from the plaintiffs, the defendant reduced the requested amount to $123,260.80.

Judge’s Ruling

Noting that “a number of courts that have addressed whether costs associated with e-discovery are recoverable under § 1092 have found that such costs are recoverable only to the extent they qualify as exemplification fees or the costs of making copies”, Judge Davis cited Race Tires America, Inc. v. Hoosier Racing Tire Corp., indicating that “the district court awarded the prevailing party the costs for e-discovery on the basis that it ‘appeared to be the electronic equivalent of exemplification and copying.’”  However, Judge Davis indicated that, on appeal, “the Third Circuit held that where e-discovery did not produce illustrative evidence or the authentication of public records, the costs for such discovery did not qualify as exemplification fees under § 1920(4) and is not recoverable” (we covered both rulings here and here).  Judge Davis specifically noted that “[a]s to costs associated with the collection and preservation of electronically stored information (“ESI”), processing and indexing ESI, and keyword searching of ESI for responsive and privileged documents, the court held that such costs are not recoverable under §1920(4).”

Indicating that other courts had found the Race Tires decision persuasive, Judge Davis stated that he “also finds the Race Tire decision persuasive and holds that the costs of creating and maintaining an electronic platform for e-discovery are not recoverable under § 1920(4)” and denied the defendant’s motion for recovery of those costs.

So, what do you think?  Is § 1920(4) still timely for consideration of cost reimbursement to prevailing parties?  Or should it be revisited and updated to reflect the current technological environment?  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.

If Google and Oracle are Going to Mine for Jurors’ Social Media Info, They Have to Inform the Court: eDiscovery Trends

When the big guys sue each other, the cases last forever.  We’ve been covering developments in the Apple v. Samsung case since July 2012, and that case is still going on.  Another case that we’ve covered a long time ago (way back in November 2011) is Oracle Corp. v. Google Inc. and that case is still going on too.  In that case, with a trial approaching, the judge has told lawyers to disclose Internet and social media research about jurors to the court or agree not to conduct it.

According to The Wall Street Journal (Google and Oracle Must Disclose Mining of Jurors’ Social Media, written by Jacob Gershman), U.S. District Judge William Alsup’s order urges both sides to respect the privacy of jurors.  He opened the order in this manner:

“Trial judges have such respect for juries – reverential respect would not be too strong to say – that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.”

As the order notes, apparently, both sides requested that the Court require the jury pool to complete a two-page jury questionnaire.  Then, one side asked for “a full extra day to digest the answers, and the other side wanted two full extra days, all before beginning voir dire.”  Judge Alsup eventually realized that they wanted that time to “scrub Facebook, Twitter, LinkedIn, and other Internet sites to extract personal data” and when asked about it, “counsel admitted this.”

Using the example of a juror’s favorite book being To Kill a Mockingbird and counsel constructing a copyright jury argument based on an analogy to that work and to play upon the recent death of Harper Lee, Judge Alsup noted that one of the dangers of mining juror social media use is that lawyers will use the information to make “improper personal appeals.”  Opting against a total research ban, he offered this compromise:

“[T]he Court calls upon them to voluntarily consent to a ban against Internet research on the [jury pool] or our jury until the trial is over… In the absence of complete agreement on a ban, the following procedure will be used. At the outset of jury selection, each side shall inform the venire of the specific extent to which it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor jurors, including specifically searches on Facebook, LinkedIn, Twitter, and so on, including the extent to which they will log onto their own social media accounts to conduct searches and the extent to which they will perform ongoing searches while the trial is underway. Counsel shall not explain away their searches on the ground that the other side will do it, so they have to do it too.”

Apparently, however, both parties would not agree to ban the research.  As Judge Alsup noted in his order, “Google is willing to accept an outright ban on Internet research about the venire and our jury, provided the ban applies equally to both sides. Oracle, however, will not.”  Judge Alsup also noted that “[o]n numerous occasions, Oracle has supplied confusing answers to the Court’s inquiries about its plan”.

Judge Alsup instructed both parties to “inform the Court By MARCH 31 AT NOON, whether they will consent to a ban against Internet research on the venire or the empaneled jury until the trial is over.”  That’s today, so we’ll see what happens.

So, what do you think?  Should litigants be allowed to mine social media data of prospective jurors?  Please share any comments you might have with us or let us know 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.

The Judge in the Most Famous eDiscovery Case is Retiring: eDiscovery Trends

If you follow eDiscovery, you probably have heard of the Zubulake case, which is probably the most famous case in eDiscovery.  The judge from that case — Shira A. Scheindlin of the U.S. District Court for the Southern District of New York – is retiring effective April 29.

In a letter announcing her retirement last Wednesday, Scheindlin, 69, said she will join a “large” New York City law firm, but plans to spend most of her time working on alternative dispute resolution (ADR) matters. In the letter Judge Scheindlin stated the following:

“After 21.5 years of service on the district court, I have decided to leave the bench as of April 29, 2016. These have been the best years of my life in which I have had the pleasure of working with wonderful colleagues and the opportunity to work on many important and interesting cases. While I will no doubt miss both the work and my colleagues, I am looking forward to taking on new challenges in the private sector. I plan to spend the bulk of my time on ADR matters including work as an arbitrator and mediator and in other neutral capacities – with the hope of doing a fair amount of public interest work as well as working on commercial matters.  I will also become of counsel to a large New York City law firm where I anticipate assisting in client and pro bono matters, teaching and mentoring associates, and engaging in public speaking and writing.  I thank you all for your friendship and support over the past years and hope to work together again in other capacities.”

In the Zubulake v. UBS Warburg case, Scheindlin issued key rulings that included classification of accessible vs. inacessible data and a new seven factor balance test for cost-shifting of discovery costs, among other precedents.  Another groundbreaking case from an eDiscovery standpoint was Pension Committee of the Montreal Pension Plan v. Banc of America Securities, LLC, where, in her ruling where she issued sanctions against the plaintiffs, Scheindlin defined negligence, gross negligence, and willfulness from an eDiscovery standpoint.

Along with Daniel Capra, Scheindlin also published a book in 2009, The Sedona Conference’s Electronic Discovery and Digital Evidence in a Nutshell, which addresses several issues related to the use of electronic information in litigation.

In addition to her noteworthy eDiscovery rulings and teachings, Scheindlin also made impact in other areas, including ordering the NYPD to reform its stop-and-frisk policing policy in 2013 and, earlier this year, ordering the SEC to return $21.5 million from an insider trading settlement paid by Level Global Investors Ltd. and another $9 million to a hedge fund in the same case.  She also approved a class-action antitrust settlement between sports fans and Major League Baseball over pay-TV game broadcasts.

As noted above, Scheindlin told colleagues in her letter that she will join the firm to assist in client and pro bono matters, and to mentor and teach associates.  Lucky associates!

So, what do you think?  Will her legacy influence the decisions of other judges going forward?  Please share any comments you might have with us or let us know 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.

Plaintiff Granted Documents Withheld Due to Privilege, But Denied Expanded Search of Emails: eDiscovery Case Law

In Moore v. Lowe’s Home Ctrs., LLC, No. 14-1459 RJB (W.D.Wash. Feb. 19, 2016), Washington District Judge Robert J. Bryan ruled in favor of the plaintiff that documents and communications dated before the defendant anticipated litigation were not privileged work product and should be produced, but he ruled against the plaintiff in her request have the defendant perform additional searches on email to identify additional relevant documents.

Case Background

In this discrimination case, the plaintiff filed a Motion to Compel Production of Improperly Withheld Documents and Responses to Discovery Regarding Destruction of Plaintiff’s and Other Witnesses’ Email.  In her Motion to Compel, the plaintiff requested (among other things) for the Court to order the production of documents withheld on the basis of privilege and work product and compel additional searches for, and production of, emails responsive to the plaintiff’s discovery requests.

With regard to the documents withheld on the basis of privilege and work product, the defendant claimed that it properly withheld communications between non-attorneys because privilege extends to corporate employees for confidential communications with corporate attorneys and for confidential communications relating to legal advice from those attorneys.

As for the additional searches requested by the plaintiff (due in part to the emails in the plaintiff’s possession that were not uncovered in the defendant’s search), the plaintiff asserted that the defendant should demonstrate that it performed a diligent search, that the defendant should conduct additional searches using terms requested by the plaintiff and that these new searches be conducted without including Plaintiff’s first or last name, on the email accounts of each witness.

In response, the defendant argued they had reviewed 21,000 emails from 17 custodians at a cost of $48,074, that the relevant emails from 2012 were likely deleted and that a search using the 88 newly requested search terms (including annoy*, bull, click*, dad, date*, hand, rack, rod, box) in conjunction with removing Plaintiff’s name from the search would result in hundreds of thousands of irrelevant emails.

Judge’s Ruling

With regard to the documents withheld on the basis of privilege and work product, Judge Bryan ruled that “Defendant states that it anticipated litigation as of April 25, 2013…Therefore, documents created prior to that date are not work product. Similarly, investigative communications made before April 25, 2013, in relation to Plaintiff’s complaints and termination fall outside the realm of legal advice and are thus not privileged. Investigation into employee complaints or misconduct serves a predominantly HR function, especially if the investigation takes place before litigation is anticipated. Defendant has not provided sufficient information to distinguish its activities as legal in nature.”  As a result, the defendant was ordered to “produce documents and communications dated before April 25, 2013, relating to investigations into Plaintiff’s complaints and termination.”

With regard to the additional searches requested by the plaintiff, Judge Bryan stated:

“Plaintiff’s request for email searches is overly broad and not proportional to the case…While the additional search terms could possibly yield some relevant results, Plaintiff has not provided specifics about what Plaintiff reasonably expects such a search to show, and Plaintiff has not shown that this information could not be found through other means. For example, Plaintiff has not shown that she would be unable to uncover the same information by asking additional questions of witnesses already scheduled to be deposed. As to this discovery issue, Plaintiff’s motion should be denied.”

So, what do you think?  Should the parties have been ordered to meet and confer regarding the search terms?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will be off tomorrow for Good Friday and will resume with a new post on Monday.

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.