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Case Law

Calling First 30(b)(6) Witness a “Waste of Time”, Court Orders a Second Deposition: eDiscovery Case Law

In Rembert v. Cheverko et. al., No. 12-9196 (S.D.N.Y., Oct. 9, 2015), New York District Judge Katherine B. Forrest granted the plaintiff’s motion “in its entirety” to compel the defendants to provide a properly prepared 30(b)(6) witness to testify regarding the defendants’ preservation and production of emails, to provide copies of document retention/preservation notices issued and to reimburse plaintiff’s costs and fees associated with having to conduct an additional deposition.

Case Background

In this civil suit filed by an inmate in the Westchester County Department of Corrections system over failure to properly treat a fractured arm, the plaintiff sought documents including any email communications between prison staff about the plaintiff.  The defendants failed to respond to that request for over three months, at which time they simply stated that they were not in possession of any such communications.  At a conference two days later, when pressed, defendants’ counsel conceded that defendants had not performed any search for emails and committed to expeditiously search for electronic documents for their witnesses, but still failed to provide any additional emails, despite the fact that five defendants’ witnesses confirmed that they used email to communicate about their patients and that responsive documents about the plaintiff should exist.

The plaintiff issued a motion to compel, to which defense counsel responded by calling the allegations regarding email collection “reckless and, frankly, scurrilous.”  Nonetheless, counsel for defendants ultimately made a small production of several emails to plaintiff’s counsel just before a court conference in July, which the plaintiff’s counsel determined to be incomplete.  The Court then outlined several possible ways of proceeding to resolve this email issue including a 30(b)(6) deposition.  The defendant’s motion to strike the 30(b)(6) deposition was denied and the deposition proceeded on September 25.

Judge’s Ruling

With regard to the 30(b)(6) deposition that was conducted, Judge Forrest noted “it is clear from the transcript that the witness was not prepared to deal with even the most basic topics set forth in the notice. It was a pure waste of time.”  Continuing, she stated:

“The designated witness, Peter Gavin, the Director of Health Information, testified that he had met with defense counsel once, for “an hour, I think.”…This is in contrast to defense counsel’s representation in his response to this motion that he prepared Mr. Gavin over the course of two days….Someone’s recollection is incorrect. Mr. Gavin did not know the version of the email platform used, whether Correct Care maintains the emails on its own server or works with a third party to do that, whether the storage is cloud-based, whether there are any size constraints on the amount of email data that a user can retain, what deletion practices were employed automatically, periodically or specifically, he was unfamiliar with ways of archiving emails other than his own personal practice, whether emails and documents were stored on the hard drive of a user’s computer or on a network server, whether emails sent or received through cell-phones would go through a web-mail client, whether Correct Care backs-up email, etc.”

As a result, Judge Forrest granted the plaintiff’s motion, stating that “[a] properly prepared 30(b)(6) witness shall be made available not later than October 23, 2015. Counsel shall confer on the appropriate location to take the deposition. As plaintiff should not have to have made this motion given the Court’s prior rulings and warnings, defendants shall pay the costs plaintiff has incurred in bringing this motion including: reasonable attorney’s fees for attending the useless deposition of Mr. Gavin and bringing this motion, and court reporter fees for the deposition of Mr. Gavin. Such costs shall be paid to the Patterson Belknap firm within 30 days of this Order. Defendant shall also provide plaintiff and the Court with copies of any document retention/preservation notices issued in connection with this case and the recipients of such hold notice. Such production shall occur not later than October 16, 2015.”

So, what do you think?  Have you ever been involved in a case where a second 30(b)(6) witness had to be produced?  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 Agrees to Allow Defendant to Use Search Terms to Identify ESI to Preserve: eDiscovery Case Law

In You v. Japan, No. C 15-03257 WHA (N.D. Cal. Sept. 16, 2015), California District Judge William Alsup granted the defendant’s motion to limit preservation of articles to those that contain one of several relevant search terms, as long as the defendant’s proposal was amended to include one additional term requested by the plaintiffs.

Case Background

In this putative personal injury class action involving claims against numerous defendants for allegedly contributing to sexual violence against them when they were kept as “comfort women” for members of the Japanese military during World War II, one defendant, a newspaper business, sought permission to preserve documents by alternative means to the Court’s required procedures.

This defendant had already retained an electronic, searchable database of all of its articles back to 1992 and was also retaining the versions of articles that are placed in a proprietary application used for laying out each edition of the newspaper for 90 days. However, the defendant contended that retention for longer than that could slow down the system or cause it to crash, indicating that installing a new storage system would cost $18 million and could take up to eight months.  As a result, the defendant filed an administrative motion for miscellaneous relief, seeking permission to employ an alternative method of preserving the documents as used in the proprietary application, namely by preserving articles only if they contain one of four relevant search terms.

The plaintiffs opposed this request, arguing that the defendant’s proposed solution could lead to the destruction of evidence of its state of mind in selecting and editing its articles, since the version of articles in the proprietary application are the only versions that reflect a particular intermediary stage of bringing those articles to publication.  They also contended that the proposed search terms are insufficient because the defendant had also used the term “voluntary corps (teishintai)” in articles about comfort women.

Judge’s Ruling

Judge Alsup, observing that the plaintiffs “do not, however, argue that articles with that term would not have otherwise been preserved under the proposed search terms, nor have they identified any other search terms that should be included”, found “that Sankei’s proposal, if amended to include the term “voluntary corps (teishintai),” is sufficiently broad to preserve the versions of articles in the proprietary application that may be related to the issues in this case.”  As a result, he granted the defendant’s motion.

So, what do you think?  Is limiting preservation to documents responsive to a small set of search terms a good idea?  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 Orders Defendant to Supplement Data Used for Statistical Sampling: eDiscovery Case Law

In United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, (D. Nev. Sep. 1, 2015), Nevada Magistrate Judge Valerie P. Cooke agreed with the relator’s contention that the data used to finalize the relator’s proposed statistical sampling plan was incomplete due to how data was identified within one of two billing systems used by the defendant.  As a result, she ordered the defendant to “EXPEDITIOUSLY PRODUCE” the additional data (and, yes, she used all caps).

Case Background

In this qui tam action under the False Claims Act (for which we covered a previous ruling here), the court had already held, in November 2014, that statistical sampling of claims was appropriate to save costs by enabling the parties to avoid examining every potential claim.  In the attempt for the relator (the person bringing the qui tam action on behalf of the United States) to finalize her proposed sampling plan, a dispute developed over the meaning of a zero-day stay at the defendant’s facilities.

The dispute arose because one of the defendant’s two billing systems used the patient’s registration time instead of the time the patient actually begins receiving inpatient medical care as the admit time – as a result, claims were falling out of the zero day stay population, which was defined as less than 24 hours from patient admit time to discharge time.  When reviewing the initial data for sampling, the relator was surprised that there were fewer claims than she expected – which lowered her chance of recovery in the case and ultimately later learned that this was due to how the billing system determined the admit time.  So she requested additional data to be produced.  The defendant objected, arguing that the relator sought “at this late hour” to acquire more data and alter the definition of a zero-day stay to include said data.

Judge’s Ruling

Noting that “[t]he question of relevancy should be construed liberally and with common sense and discovery should be allowed unless the information sought has no conceivable bearing on the case”, Judge Cooke stated:

“The time-adjusted data is discoverable, for it is indisputably relevant. Evidence is relevant when ‘it has any tendency to make a fact more or less probable than it would be without the evidence’ and ‘the fact is of consequence in determining the action.’…Relator has adequately explained the basis for her belief that the time-adjusted claims properly fall within the data universe for zero-day stays, based upon the guidelines for an inpatient stay and the problem with the Siemens’ ‘admit time.’”

Judge Cooke also noted that the defendant “retain[s] the right, and will have the opportunity, to question or attack the reliability of” the expert and the statistical sampling process.

Judge Cooke also considered whether her November order allowing for statistical sampling permitted the inclusion of the time-adjusted data in the sampling plan.  Based on the definition of a zero-day stay as “a hospital stay of less than 24 hours” (from time of admission), she ruled that “the November order permits inclusion of the time-adjusted claims.”  As a result, she ordered the defendant to “EXPEDITIOUSLY PRODUCE data consistent with relator’s proposal to include the time-adjusted claims” and for the parties to meet and confer to determine the plan for producing the data and finalizing the statistical sampling plan.

So, what do you think?  Was inclusion of the additional data appropriate?  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.

Privilege Log Identifies Additional Documents to be Produced by Defendant: eDiscovery Case Law

In U.S. Securities and Exchange Commission v. Commonwealth Advisors, Inc. et. al., No. 12-700 (M.D. La., Sept. 28, 2015), Louisiana Magistrate Judge Stephen C. Riedlinger ordered the defendants to produce additional documents that were identified on the defendants’ privilege log, but for which the defendants had waived attorney-client privilege.

Case Background

In this case, the district judge submitted a previous ruling that by December 2014, the defendants must “submit to the Plaintiff a revised privilege log that is in compliance with Fed.r.Civ.P. 26(b)(5)(A) and must produce to Plaintiff all documents for which the attorney client privilege has been waived by the assertion of the advice-of counsel defense.”  The defendants provided the plaintiff with revised privilege logs and produced some responsive documents, but the plaintiff asserted that the defendants had failed to produce all of the documents for which it had waived the attorney-client privilege, noting several documents were still included on the privilege log that related to “advice”.

Additionally, the plaintiff was provided with a production that did not redact purportedly privileged information from the original native-format files or from the searchable text metadata that was used to identify and locate specific documents.  Based on the examination of the metadata for selected documents, and a comparison of the metadata with the image file, the plaintiff believed that additional responsive material might be found on other redacted documents as well.  The defendants characterized the plaintiff’s revelation as “reconstructing the redacted portions of documents from metadata that was inadvertently included by a third-party vendor – a vendor made necessary by the SEC’s demand that all files be produced in a certain electronic format.”

As a result of these issues, the plaintiff moved to compel production of the remaining documents.

Judge’s Ruling

Noting that “the day after the Plaintiff’s Second Motion to Compel was filed the defendants advised the plaintiff that there was a problem with their production”, Judge Riedlinger stated that “by demanding that the plaintiff delete all of the incorrectly produced materials, which the plaintiff agreed to do, the defendants effectively failed to comply with the Ruling and Order” (from December 2014).  “Defendants’ otherwise timely production cannot be considered so when they demand a significant part of it — in terms of both volume and content — not be examined and also be deleted.”

Noting that, in his original order, the district judge “did not disagree with the determination that defendants’ privilege logs (provided up to that time) were wholly inadequate to sustain their assertion of the attorney-client privilege”, Judge Riedlinger found that “Defendants revised privilege logs are, overall, now less reliable than the ones they previously produced because they include insufficient and sometimes misleading document descriptions. Plaintiff has persuasively shown that the defendants improperly redacted at least two specific documents (Exhibits J and K), and there is good cause to believe there are more improperly redacted documents.”

As a result, Judge Riedlinger stated:

“The current circumstances support finding that the defendants waived their attorney-client privilege and should be required to produce all previously-withheld documents.  They failed to take any reasonable steps to prevent the disclosure of claimed still-privileged information by the manner of their December production. Only after the plaintiff brought it to their attention in this motion, filed more than six weeks later, did they do anything about it. Defendants provided deficient and sometimes misleading revised privilege logs which, overall, are not reliable. Defendants knowingly redacted materials which are subjects of their advice-ofcounsel attorney-client privilege waiver, and intentionally did not produce one document until they determined it was in their interest to do so. And lastly, but importantly, in these circumstance it is simply unfair to the plaintiff to allow the defendants to assert a broad advice-of-counsel defense, interpret it narrowly, and then based on their narrow interpretation withhold information and documents relevant to that defense.”

As a result, Judge Riedlinger granted the plaintiff’s motion to compel and ordered the defendants to “produce to the plaintiff, within 21 days, all documents withheld on the basis of attorney-client privilege, whether solely or in part.”

So, what do you think?  Did the defendants’ discovery failures cost them privilege assertions on some documents?  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.

Not Preserving Texts Results in Adverse Inference Sanctions for Plaintiff: eDiscovery Case Law

In NuVasive, Inc. v. Madsen Med., Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. July 22, 2015), California Chief District Judge Barry Ted Moskowitz granted the defendants’ motion for adverse inference sanctions for failure to preserve text messages from four custodial employees that were key to the case.

Case Background

In this contractual dispute, the defendants sought sanctions in the form of an adverse inference jury instruction for the plaintiff’s failure to preserve evidence, specifically, text messages from four employees.  The defendants contended that these text messages could have been evidence of secret coordination between the plaintiff and former employees of the defendants to effect the termination of the defendants’ contractual relationship with the plaintiff and then have the plaintiff hire the defendants’ sales personnel as its own employees.

With regard to the four employees, each had a different level of failure to preserve the text messages.  One former employee turned over his current phone for imaging instead of the phone used during the relevant time period, which he wiped clean before turning it over to his son. A second employee was not asked to turn in his phone until 2014 (after being notified of a litigation hold in August 2012 and again in September 2013) and when he did, all text messages prior to September 20, 2012 were missing (which the plaintiff attributed to an iPhone iOS 6 software update released on September 19, 2012). The third employee had his phone wiped when he turned it in for an upgrade on two separate occasions, pursuant to company policy.  The fourth employee did not provide the phone he used in 2012 until sometime in 2013 and testified that he may have deleted some relevant messages.

Judge’s Ruling

Judge Moskowitz stated that “In light of all of the text messages that were lost or deleted, the Court concludes that NuVasive was at fault for not enforcing compliance with the litigation hold. Although it is true that Defendants should have taken steps to preserve the text messages of Orlando and Kordonowy while they were still working for MMI, NuVasive still had a duty to preserve the evidence and failed to do so.”

Rejecting the plaintiff’s claims that the defendants had obtained most of the deleted/lost text messages through other individuals, Judge Moskowitz also found that “Defendants have made a sufficient showing of prejudice”, noting from other texts that the defendants provided that it could “reasonably be inferred from these texts, viewed together with other evidence, that the MMI sales representatives were talking to NuVasive about plans to terminate MMI and have the sales representatives work directly for NuVasive. Accordingly, texts during the relevant time period to or from Moore, Kordonowy, Graubart, and Orlando might have furthered MMI’s claims.”

As a result, Judge Moskowitz found that “a properly tailored adverse inference instruction is appropriate and will not cause ‘substantial unfairness’ to NuVasive” and decided to give the following instruction:

“NuVasive has failed to prevent the destruction of evidence for MMI’s and Ms. Madsen’s use in this litigation after its duty to preserve the evidence arose. After considering all of the pertinent facts and circumstances, you may, but are not obligated to, infer that the evidence destroyed was favorable to MMI and unfavorable to NuVasive.”

Judge Moskowitz denied the defendants’ request for attorney’s fees and costs “because Defendants were also partially at fault for not taking steps to preserve text messages of Kordonowy and Orlando while they were still working for MMI.”

So, what do you think?  Was the sanction appropriate for this case?  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 States that Duty to Meet and Confer is Not an “Empty Formality”, Denies Request for Sanctions: eDiscovery Case Law

In Whitesell Corporation v. Electrolux Home Products, Inc. et. al., No. 103-050 (S.D. Ga., Sept. 10, 2015), Georgia District Judge J. Randal Hall denied the plaintiff’s motion for sanctions against the defendant for identifying a deponent that (according to the plaintiff) had no particularized information regarding the defendant’s efforts to produce documents, stating that he was “unimpressed” by the plaintiff’s effort to confer on the matter and stating that the “duty-to-confer is not an empty formality”.

Case Background

In its Third Set of Interrogatories to Defendants, the plaintiff requested that the defendant “[i]dentify every person who has knowledge regarding your document retention policies and procedures and your efforts to preserve and produce documents and information relevant to this litigation, and describe the subject matter of his or her knowledge.”  In response, the defendant identified three individuals, including one whom they described as having “general information” “regarding [the defendant’s] efforts to produce documents and information relevant to this litigation”.

At his deposition, that deponent expressed a lack of knowledge regarding the defendant’s document retention policies, so the plaintiff filed a Motion for Sanctions, arguing that the court should sanction the defendant’s identification of that deponent because he had no particularized information regarding the defendant’s efforts to produce documents “and certainly possesses no information that is different than any other of the dozens of other EHP employees whose computer was reviewed by EHP’s IT department in connection with this litigation.”  In response, the defendant pointed out that it had never identified that deponent as specifically knowledgeable about document retention policies, but that it did identify him has having knowledge regarding the document production (regarding which he adequately testified about during his deposition).

Judge’s Ruling

Judge Hall remarked initially that “At first blush, Whitesell’s motion for sanctions appears well-grounded. From Whitesell’s perspective, Mr. Edwards’s deposition seemed needless and unproductive.”  However, “upon a more contemplative look at the issue”, Judge Hall stated that he “cannot reach the conclusion that EHP violated its certification of discovery responses under the circumstances.”

Noting that the “interrogatory generally asks for persons with knowledge about efforts to produce documents and information relevant to the litigation, but then Whitesell complains that the witness does not have particularized knowledge of all areas pertinent to that subject matter”, Judge Hall stated that “the Court is unimpressed by Whitesell’s effort to confer on the matter…The duty-to-confer is not an empty formality.”

As a result, Judge Hall denied that motion stating that “the Court’s decision on this matter is influenced by the fact that there is now a mechanism in place, the monthly discovery hearings, to address the perceived gaps and failings in discovery almost immediately as they arise.”

So, what do you think?  Should more courts hold monthly discovery hearings to minimize disputes?  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 Orders Defendant to Produce Metadata for Previously Produced Emails: eDiscovery Case Law

In Prezio Health, Inc. v. Schenk, et. al., No. 13-1463 (D. Conn., Sept. 9, 2015), after “a careful in camera review” of emails responsive to eighteen keyword search terms, Connecticut Magistrate Judge Joan Glazer Margolis ordered the defendant to produce metadata for eight specific emails which had already been produced to the plaintiff.

Case Background

In this dispute over a non-compete provision, the plaintiff provided a list of 18 search terms to be used in searching the defendants’ computers for emails sent and received by the individual defendant during an 8 month period in 2013. When the defendants produced no documents in response to the search request, the plaintiff filed a Motion to Compel, requesting that the defendants produce all computers or hard drives in their possession on which the individual defendant might have sent or received emails during the relevant timeframe.

In their brief in opposition, the defendants argued, inter alia, that defense counsel had conducted a search of the eighteen search terms and would produce all non-privileged documents that relate to the individual defendant’s employment with either plaintiff or the defendant company, all of which probably were previously produced in this litigation.  The defendants also suggested that they conduct a search of the individual defendant’s email account in an in camera setting for the Court.  In its reply brief, plaintiff countered, inter alia, that it was still entitled to the metadata from these documents.  Per their suggestion, in August, the court ordered the defendants to produce the items responsive to the eighteen search terms for in camera review, and both parties produced emails for the in camera review.

Judge’s Ruling

Regarding the plaintiff’s request for metadata, Judge Margolis stated: “After a careful in camera review, plaintiff is entitled to the metadata for the following eight emails: the two May 6, 2013 emails; the May 13, 2013 email; the two June 6, 2013 emails; the two October 16, 2012 emails; and the December 13, 2012 email. Unless counsel agree otherwise, defense counsel shall make the necessary arrangements and plaintiff promptly shall reimburse defendants for any expenses borne as a result.”

Judge Margolis also stated that “[t]his is not a Recommended Ruling, but a ruling on a non-dispositive motion… As such, it is an order of the Court unless reversed or modified by the District Judge upon timely made objection.”

So, what do you think?  Was an in camera review the best way to rule on the request for metadata?  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 Ordered to Produce Emails Between Non-Attorney Employees That Were Deemed Privileged: eDiscovery Case Law

In Cicon v. State Farm Mutual Auto Ins. Co., No. 14-2187 (M.D. Pa. Aug. 21, 2015), Pennsylvania District Judge Richard P. Conaboy denied the plaintiff’s request for the defendant to produce attorney-client communications that occurred before the filing of the complaint, but granted his request regarding communications between non-attorney employees before the plaintiff’s counsel sent a letter threatening litigation, ordering the defendant to produce those emails, while allowing the defendant to redact explicit discussion of an attorney’s advice.

Case Background

In this case, the plaintiff sued the defendant insurance company regarding coverage of the plaintiff’s injuries in an automobile accident.  During the course of litigation, the defendant produced a privilege log which cursorily described communications between the defendant and legal counsel as well as internal communications between various of its claims personnel.  The plaintiff filed a motion to compel, seeking documents that detailed communications between the defendant and its attorneys in relation to this case, as well as documents that detailed communications between the defendant’s employees or agents regarding this matter.  With regard to the attorney-client communications, the plaintiff argued that they should be produced because many of the attorney-client communications referenced in the defendant’s privilege log occurred before the filing of the complaint that initiated the case.

Judge’s Ruling

With regard to the plaintiff’s argument for producing the attorney-client communications, Judge Conaboy stated “The Court cannot agree. Because Plaintiff retained counsel and threatened litigation via the aforementioned letter of February 18, 2014, all communications between Defendant and its various attorneys that post-date February 18, 2014 are very likely, if not presumptively, concerned with the Defendant’s defense of this matter. Simply put, Plaintiff has cited no evidence that the attorney-client communications Defendant seeks to shield were related to mere business purposes.”  As a result, Judge Conaboy denied the plaintiff’s request to have these documents produced.

With regard to communications between the defendant’s employees, Judge Conaboy ruled to “categorically exclude from production those that post-date Plaintiff’s counsel’s letter of February 18, 2014 threatening litigation”, deciding to “presume that all inter-office communications in this file after that date were prepared in anticipation of litigation and are, thus, properly excluded from discovery except in the redacted form Defendant has proposed.”  However, with regard to the “numerous” inter-office communications in the privilege log that pre-dated the plaintiff’s counsel’s letter, Judge Conaboy concluded that “inter-office communications before that date were prepared in the ordinary course of business, and, consequently, are not subject to work product protection”.  He did note, that “[t]o the extent that any of these documents contain explicit discussion of an attorney’s advice or direction, Defendant may redact the document to exclude such excerpts consistent with the earlier discussion of attorney-client privilege.”

So, what do you think?  Should the defendant have been ordered to produce the non-attorney emails?  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.

Samsung Doesn’t Have to Write a Check After All…Yet: eDiscovery Case Law

A couple of weeks ago, we revisited the Apple v. Samsung case, which we covered so much last year, it had its own category in our four part annual case law review.  On September 18, U.S. District Court Judge Lucy Koh granted Apple’s motion for partial final judgment in the case that Apple lodged against Samsung in 2011, seemingly clearing the way for Apple to collect $548 million in damages from Samsung.  But, on Friday, Samsung received an emergency stay on that order.

According to Law 360 (subscription required), on Friday, the Federal Circuit on Friday granted a temporary stay of the judgment’s enforcement, after Samsung argued Sept. 21 in a notice of appeal that the appeals court’s mandate did not require immediate payment.

Samsung also moved for approval of a supersedeas bond in the amount of $600 million to secure payment of the judgment and asked for a temporary, 10-day stay of execution of the judgment to ensure that there is time to implement any changes to the bond the judge may require.  Samsung had argued in its emergency motion that the judgment shouldn’t have been entered, or that the appeals court should approve the supersedeas bond it put up in district court, according to filings in the case.

In a response brief that at times got a bit spicy, Apple retorted that the Federal Circuit’s May ruling affirming the $548 million judgment “made plain” that Samsung doesn’t deserve further delay, and urged the court to ignore Samsung’s efforts to “block the court from performing the most ministerial of tasks,” according to its filing.  “Apple does not file this motion lightly, but Samsung’s appeal truly is beyond the pale,” Apple argued in its response. “It should be brought to a swift end, rather than serve Samsung’s goals of imposing greater cost and delay on the court and Apple.”

Apple has won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts (ultimately reduced to the current $548 million), as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”, but ultimately may have lost the war when the court refused to ban Samsung from selling products that were found to have infringed on Apple products (that is still being disputed in the courts, too).  This case has also had disputes over eDiscovery cost reimbursement and an adverse inference sanction for Samsung for failing to turn off “auto-delete” of emails after the case began.  And, clearly, there is more yet to come.

So, what do you think?  Have you been following Apple v. Samsung?    Will it ever end?  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 Compelled to Restore and Produce Emails from Backup Tapes: eDiscovery Case Law

In United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, (D. Nev. Aug. 25, 2015), Nevada Magistrate Judge Valerie P. Cooke concluded that emails contained on backup tapes held by the defendants was not reasonably inaccessible due to undue cost and, even if the emails were reasonably inaccessible due to undue burden or undue cost, “good cause supports their discoverability”.  Also, after an analysis of cost-shifting factors found only one factor favored cost-shifting of the production of emails to the relator, Judge Cooke ordered the defendant to bear the cost of restoration and production.

Case Background

In this qui tam action under the False Claims Act, the relator filed a motion to compel production of email from the defendant for a “gap period” when the emails were stored on backup tapes, pursuant to the defendants’ email retention policy.  On the belief that the March 2011 tapes held the greatest number and scope of historical emails relevant to this litigation, the defendant had previously restored the March 2011 backup tapes via a third-party vendor and produced emails at a cost of over $100,000 (including attorney review and production).

The defendants objected, alleging that the emails were not reasonably accessible because of undue burden and cost, and stating that its IT department could not restore the gap-period emails in house; therefore, it would have to outsource the restoration work for a cost of $136,000 and a total cost of at least $248,000 after adding data processing and contract attorney review.

Judge’s Ruling

Noting that “[u]nder Rule 26(b)(2)(B), it is Renown’s burden to show that the gap-period emails are not reasonably accessible due to undue burden”, Judge Cooke stated that “As a preliminary matter, the plain language of Rule 26(b)(2)(B) instructs that “undue burden,” rather than the format of the ESI, is to guide the court’s analysis. Technological features of the storage media do enter the analysis, but only as they relate to the undue burden inquiry. Stated differently, undue burden is fact specific and no format is inaccessible per se.”

With that in mind, Judge Cooke concluded that “Renown has failed to show that the gap-period emails are not reasonably accessible because of undue burden. As described above, Renown has produced emails from the restored March 2011 backup tapes. In so doing, Renown has demonstrated that it is technologically feasible to restore and produce the gap-period emails… Accordingly, the court cannot fathom what burden accompanies third-party restoration. Renown has not stated that use of a vendor will nevertheless impose burdens – in terms of staff resources, delay of other critical IT projects, or inadequate attention to existing technology infrastructure.”

As for the defendants’ undue cost argument, Judge Cooke rejected “Renown’s argument that ‘cost’ under Rule 26(b)(2)(B) includes document review and storage”, determining that the “$136,000 figure for restoration is not an undue cost that renders the gap-period emails reasonably inaccessible”.

Next, Judge Cooke turned to the question of whether the relator had established good cause for the emails’ production by applying the seven factor balancing test of the costs and potential benefits of the requested discovery under Rule 26(b)(2)(B).  Determining that “five of the relevant factors favor relator, while two are neutral”, Judge Cooke found that “relator has carried her step-two burden of demonstrating good cause”, so “even were the gap-period emails reasonably inaccessible due to undue burden or undue cost, good cause supports their discoverability.”

Finally, Judge Cooke performed an examination of cost shifting, using the seven factor test used in Zubulake.  Noting that “[t]he weightiest factors, relevance and availability of alternatives, balance powerfully against cost shifting”, Judge Cooke ruled that “the costshifting factors require that Renown bear the cost of restoration.”  Therefore, she granted the relator’s motion to compel and denied the defendant’s motion for cost shifting, ordering the relator and defendant to meet and confer to discuss a schedule for production of the gap-period emails.

So, what do you think?  Should the defendant have been ordered to restore the emails from backup tape?  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.