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Case Law

Court Has a “Beef” with Plaintiff’s Proportionality Argument: eDiscovery Case Law

In Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, No. 13-cv-1168-EFM-TJJ (D. Kan. June 26, 2015), Kansas Magistrate Judge Teresa J. James granted the defendants’ motion to compel production of documents, overruling the plaintiffs’ objections to the discovery request in finding that “Plaintiff has not satisfied its burden to show that producing the requested documents would be unduly burdensome”.

Case Background

In this breach of contract case, the defendant requested in June 2014, among other production requests, “any and all Documents related to Your hedging and/or risk management strategies and/or policies for all cattle purchased pursuant to the Agreement”.   Subsequently, in April 2015, the defendant deposed a former employee of the plaintiff and learned for the first time of the existence of specific documents that the plaintiff had not produced relating to hedging and/or risk management activities of both cattle and grain pursuant to the Agreement.  After requesting those documents, the plaintiff’s lead counsel sent a letter declining to produce the requested documents as irrelevant.  She offered to schedule a time for the parties to meet and confer about the issue, but she had left the country the day before and fact discovery closed the following day, forcing the defendant to file its motion to compel.

The plaintiff argued that the defendants’ motion to compel should be denied because:

  1. Defendants failed to comply with the “meet and confer” (or was it “meat and confer”?) obligation imposed by Kan. R. 37.2;
  2. Plaintiff had already produced relevant information responsive to the request;
  3. Defendants’ motion was not proportional; and
  4. the Court should defer ruling on the motion until the presiding district judge rules on Plaintiff’s motion for partial summary judgment on risk management claims.

Judge’s Ruling

Noting that the “Defendants had a limited amount of time in which to file their motion to compel”, Judge James found that “Defendants have complied with their Fed. R. Civ. P. 37(1)(1) and D. Kan. R. 37.2 obligations to confer. Defendants acted in a timely fashion and contacted the only Plaintiff’s attorney available before their deadline. In addition, on May 4, 2015, Defendants’ counsel attempted to discuss the issue with Plaintiff’s counsel after she had returned to the country, but she declined to do so.”

Judge James also stated that, “When the discovery sought appears relevant, the party resisting discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevancy as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevancy that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.”  Finding that “the relevancy of the documents is apparent on its face”, Judge James ruled that the documents were within the bounds of the production request.

Finally, with regard to the plaintiff’s proportionality argument, Judge James stated:

“The Court finds that Plaintiff has not satisfied its burden to show that producing the requested documents would be unduly burdensome. Although Plaintiff articulates the issue as one of proportionality, the only factor Plaintiff mentions is the cost of the discovery. Plaintiff does not set forth what the relative cost of production would be as compared to the amount in controversy. The Court notes that both parties seek damages/setoff in excess of $2,000,000. Plaintiff’s unsupported estimate of $4,000 to $5,000 per custodian in discovery costs does not lead the Court to find that ordering the requested discovery violates proportionality, particularly given the history, scope, and nature of this case.”

Judge James did, however, reject the defendants’ request for sanctions in the form of an award of their reasonable expenses incurred in making the motion.

So, what do you think?  Does the plaintiff have a valid “beef” with the verdict?  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 You’re Going to Submit a 2,941 Page Privilege Log, You’d Better Be Able to Demonstrate Privilege: eDiscovery Case Law

In United States v. Louisiana, 11-470-JWD-RLB. (M.D. La. July 31, 2015), Louisiana Magistrate Judge Richard L. Bourgeois, Jr., after reviewing 40 documents provided by the defendant for in-camera review, granted the plaintiff’s Renewed Motion to Compel a Proper Privilege Log, after denying the original motion because the plaintiff only provided 13 examples of “insufficient descriptions” within the privilege log’s entries.

Case Background

In this enforcement action for declaratory and injunctive relief under the National Voter Registration Act of 1993 filed by the plaintiff in 2011, the defendant submitted a 2,941 page privilege log on February 6, 2015 in response to the plaintiff’s second Requests for Production which listed email communications and their attachments, that the plaintiff claimed were protected from production by the attorney client privilege, the work product doctrine, and the joint defense/common interest privilege.

On February 23, the plaintiff informed the defendant that its privilege log did “not contain a sufficient amount of information for [the U.S.] or the Court to be able to make an independent privilege determination as to the applicability and validity of the asserted privilege”, complaining about the privilege log’s failure to include: (1) job titles of the listed recipients, including whether any recipient was acting in the capacity of an attorney; (2) descriptions for most of the listed email’s attachments; and (3) sufficiently detailed descriptions of the communications referenced.  Then, on April 17, the defendant gave the plaintiff an updated privilege log, which deleted “over 1500” communications and documents and also included brief descriptions of the email attachments listed in the log, reducing the overall privilege log to (a mere) 2,302 pages of entries.  Still, the plaintiff filed a Motion to Compel a Proper Privilege Log.

On May 22, Judge Bourgeois denied the motion to the extent that it sought an order compelling the defendant to produce an entirely revised Privilege Log, noting that the plaintiff “only provides 13 examples of ‘insufficient descriptions’ that apparently account for ‘hundreds if not thousands’ of the privilege log’s entries” and rejected the plaintiff’s “sweeping argument” to order the defendant to revise every entry of its privilege log.  Judge Bourgeois did rule that the plaintiff “may file a renewed Motion to Compel by Friday, May 29, 2015, citing up to 40 specific entries in DHH’s privilege log, which are exemplary of the entries it challenges as insufficient.”  The plaintiff did that, and the defendant then submitted for in-camera review the documents described in the 40 privilege log entries.

Judge’s Ruling

With regard to the defendant’s privilege log, Judge Bourgeois noted that the “challenged entries are not described with sufficient detail for either the Court or the United States to evaluate the applicability of the attorney client privilege or work product doctrine”, that, in several instances, “the privilege log includes some, but not all of the senders or recipients of a communication” and that it also “fails to sufficiently explain the role of each identified recipient and sender with respect to communications with in-house counsel”.

With the “benefit of being able to review (in-camera) the documents described in the 40 entries at issue”, Judge Bourgeois concluded that “many of these documents do not fall within the scope of the attorney client privilege or work product doctrine” and was “convinced that the overwhelming majority (if not all) of the withheld 40 documents, do not concern the legal advice of counsel as it relates to this litigation or counsel’s strategy for trial.”

As a result, Judge Bourgeois found that “DHH acted unreasonably in preparing the privilege log and asserting its claims of privilege”, but was “reluctant to find a complete waiver of privilege as to all of the documents described” in the log.  Instead, Judge Bourgeois ordered the defendant to reassess its claims of privilege and notify the plaintiff by August 17 of previously contested items for which it withdraws its claims of privilege and produce those documents OR provide the plaintiff with a supplemental privilege log containing sufficient information to allow the plaintiff to assess the defendant’s claims of privilege.

So, what do you think?  Was that the correct call?  Or should the court have waived privilege for all of the documents contained within the privilege log?  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.

Apparently, in Discovery, Delta is Not Ready When You Are and It Has Cost Them Millions: eDiscovery Case Law

A few years ago, we covered a case law decision in the Delta/Air Tran Baggage Fee Antitrust Litigation, where Delta was ordered to pay plaintiff attorney’s fees and costs for eDiscovery issues in that litigation.  Apparently, Delta’s difficulties in this case have continued, as they have been ordered this week to pay over $2.7 million in sanctions for failing to turn over ESI, to go along with more than $4.7 million in sanctions for earlier discovery violations.

According to the Consumerist (Delta Hit With Another $2.7M In Sanctions In Years-Old Baggage-Fee Collusion Case, by Chris Morran), U.S. District Court Judge Timothy Batten imposed the sanction of $2,718,795.05 against Delta, which was higher than the $1.86 million sanction amount recommended by the Special Master in the case.

In his ruling, Judge Batten stated that: “Since discovery commenced in February 2010, this case has been plagued by a veritable deluge of discovery disputes and a corresponding succession of motions for discovery sanctions against Delta. It is not hyperbolic to say that this lawsuit has turned into litigation about litigation: the time, energy, and resources spent on discovery abuses equals or exceeds those that have been dedicated to litigating the merits of the case. Plaintiffs filed four sanctions motions in as many years, with each motion building on its predecessors.”  Judge Batten also noted that “Delta’s discovery practices have time and time again been shown to be ineffective, inefficient, and inept. Throughout this litigation, Delta’s left hand has not known what its right hand was doing, and ‘it often times appears that this litigation was conducted in an Inspector Clouseau-like fashion.’”

Delta had already been sanctioned $1.3 million for failing to turn over 60,000 pages of documents to the plaintiffs that were found in a box of previously undiscovered backup tapes and another $3.49 million, mostly to cover the cost of hiring an independent researcher to scan through and restore another batch of 29 backup tapes that was eventually discovered.

Summing up the lengthy and difficult discovery period to date, Judge Batten stated: “Without question, it is Delta’s ineptitude and missteps that have caused the vast majority of the excessive time, expenses, and energy that the parties have expended in discovery for the last five years…Delta’s discovery misconduct has rendered the Court’s attempts to manage this litigation and move it toward a resolution on the merits as futile and maddening as Sisyphus’s efforts to roll his boulder to the top of the hill.”

To make matters worse for Delta, Judge Batten also granted class-action status to the case this week.  Of course, as the article notes, Delta made more than $860 million off baggage fees in 2014 alone, so they can afford to fight.

So, what do you think?  Should Delta have received such severe sanctions?  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 Sanctions for Routine Deletion of Files of Departed Employees: eDiscovery Case Law

In Charvat et. al. v. Valente et. al., 12-5746 (N.D. Ill. July 1, 2015), Illinois Magistrate Judge Mary M. Rowland denied the plaintiff’s request for spoliation sanctions for the defendant’s admitted destruction of computer files belonging to two departed employees, finding that the plaintiff did not provide any evidence that the defendant acted in bad faith.

Case Background

In this case about consumer complaints regarding alleged improper telemarketing activities by a company affiliated with Carnival Corporation, the defendant investigated the allegations and produced most of the documents relating to its investigation.  However, the defendant withheld 14 documents as privileged, because they “relate specifically to legal advice sought by Carnival from outside counsel”.  Judge Rowland conducted an in camera review of the documents described on the Privilege Log and ruled that the defendant must produce two of the documents, but determined that “[a]ll other documents on the Privilege Log are protected from disclosure by the attorney-client privilege and the work product doctrine.”

The plaintiff also requested spoliation sanctions or instructions given the defendant’s admitted destruction of computer files belonging to two departed employees.  The defendant acknowledged deleting the computer files belonging to the two departed employees consistent with its routine business practices of deleting files 30 days following termination of employment. The two employees left in September and October 2011 and the defendant’s investigation into the consumer complaints concluded in July 2011, so the defendant asserted that “at the time of their respective departures from the company, Carnival had completed its investigation of RMG and did not anticipate any imminent litigation against the travel agency.”  The plaintiff countered by arguing that the defendant could not contend that certain documents authored by the two departed employees were “work product” created in “anticipation of litigation” while also asserting that it routinely deleted their computer files because it did not “anticipate any imminent litigation.”

Judge’s Ruling

Noting that “work product is exempt from mandatory disclosure regardless of the status of the anticipated litigation” and “work-product protection continues even after the prospect of anticipated litigation disappears”, Judge Rowland stated that “although Carnival was free to delete Morales’s and Hernandez’s files in September and October 2011 because there was no reasonably foreseeable litigation at that time, their emails prepared as part of the RMG investigation remain privileged.”  She also then stated that “[i]n any event, Plaintiff has not provided any evidence that Carnival acted in bad faith”, determining that “[t]here is no evidence that Carnival’s routine deletion of former employees’ files in accordance with an established document retention policy was done for the purpose of hiding adverse information.”  As a result, the plaintiff’s request for sanctions was denied.

So, what do you think?  Should the defendant have been able to delete the files of the departed employees?  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.

Apple’s Motion to Seal eDiscovery Vendor Invoice Line Items Granted by Court: eDiscovery Case Law

In GPNE Corp. v. Apple, Inc., 12-CV-02885-LHK (N.D. Cal. July 16, 2015), California District Judge Lucy H. Koh granted the defendant’s motion to file under seal specific line items from third-party e-discovery vendor invoices that were submitted in support of its bill of costs.

The defendant had sought to file the portions under seal because they stated that the invoices contained “sensitive and confidential information regarding the costs Apple incurred in defending against the patent infringement claims”, stating that they “reveal sensitive and confidential information regarding Apple’s financial relationship with its e-discovery vendor” and the information “could be used by Apple competitors to its disadvantage, as disclosure of the redacted information will reveal confidential pricing strategy and Apple’s financial relationship with its e-discovery vendor.”

Judge Koh started by observing that “Historically, courts have recognized a ‘general right to inspect and copy public records and documents, including judicial records and documents’…Accordingly, when considering a sealing request, ‘a strong presumption in favor of access is the starting point.’”  But, she also noted that “Records attached to nondispositive motions are not subject to the strong presumption of access…Because the documents attached to nondispositive motions ‘are often unrelated, or only tangentially related, to the underlying cause of action,’ parties moving to seal must meet the lower ‘good cause’ standard of Rule 26(c) of the Federal Rules of Civil Procedure…The ‘good cause’ standard requires a ‘particularized showing’ that ‘specific prejudice or harm will result’ if the information is disclosed.”

Judge Koh also stated that “Pursuant to Rule 26(c), a trial court has broad discretion to permit sealing of court documents for, inter alia, the protection of “a trade secret or other confidential research, development, or commercial information.”  Referring to the defendant’s motion as “nondispositive”, Judge Koh applied “the ‘good cause’ standard to Defendant’s request” and found that “Defendant has made a ‘particularized showing’ that ‘specific prejudice or harm will result’ if certain confidential terms of Defendant’s financial relationship with its e-discovery vendor are made public.”  Therefore, Judge Koh granted the defendant’s motion to seal as to the proposed redactions in the exhibit.

So, what do you think?  Should eDiscovery vendor pricing be considered confidential?  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.

Should Contract Review Attorneys Receive Overtime Pay?: eDiscovery Trends

Whether they should or not, maybe they can – if they’re found NOT to be practicing law, according to a ruling from the Second U.S. Circuit Court of Appeals.

According to a story in The Posse List (Contract attorney lawsuit against Skadden Arps can proceed, appeals court says; case could enable temporary lawyers hired for routine document review to earn extra wages), the Second U.S. Circuit Court of Appeals vacated the judgment of the district court and remanded the matter for further proceedings, ruling that a lawsuit demanding overtime pay from law firm Skadden, Arps and legal staffing agency Tower Legal Solutions can proceed.

The plaintiff, David Lola, on behalf of himself and all others similarly situated, filed the case as a Fair Labor Standards Act collective action against Skadden, Arps and Tower Legal Staffing.  He alleged that, beginning in April 2012, he worked for the defendants for fifteen months in North Carolina, working 45 to 55 hours per week and was paid $25 per hour. He conducted document review for Skadden in connection with a multi-district litigation pending in the United States District Court for the Northern District of Ohio. Lola is an attorney licensed to practice law in California, but he is not admitted to practice law in either North Carolina or the Northern District of Ohio.

According to the ruling issued by the appellate court, “Lola alleged that his work was closely supervised by the Defendants, and his entire responsibility . . . consisted of (a) looking at documents to see what search terms, if any, appeared in the documents, (b) marking those documents into the categories predetermined by Defendants, and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols that Defendants provided.’  Lola also alleged that Defendants provided him with the documents he reviewed, the search terms he was to use in connection with those documents, and the procedures he was to follow if the search terms appeared.

The defendants moved to dismiss the complaint, arguing that Lola was exempt from FLSA’s overtime rules because he was a licensed attorney engaged in the practice of law. The district court granted the motion, finding (1) state, not federal, standards applied in determining whether an attorney was practicing law under FLSA; (2) North Carolina had the greatest interest in the outcome of the litigation, thus North Carolina’s law should apply; and (3) Lola was engaged in the practice of law as defined by North Carolina law, and was therefore an exempt employee under FLSA.”

While the appellate court agreed with the first two points, it disagreed with the third.  In vacating the judgment of the district court and remanding the matter for further proceedings, the appellate court stated in its ruling:

“The gravamen of Lola’s complaint is that he performed document review under such tight constraints that he exercised no legal judgment whatsoever—he alleges that he used criteria developed by others to simply sort documents into different categories. Accepting those allegations as true, as we must on a motion to dismiss, we find that Lola adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants. A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided.”

A link to the appeals court ruling, also available in the article in The Posse List, can be found here.

So, what do you think?  Are document reviewers practicing law?  If not, should they be entitled to overtime pay?  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.

“Da Silva Moore Revisited” Will Be Visited by a Newly Appointed Special Master: eDiscovery Case Law

In Rio Tinto Plc v. Vale S.A., 14 Civ. 3042 (RMB)(AJP) (S.D.N.Y. Jul. 15, 2015), New York Magistrate Judge Andrew J. Peck, at the request of the defendant, entered an Order appointing Maura Grossman as a special master in this case to assist with issues concerning Technology-Assisted Review (TAR).

Back in March (as covered here on this blog), Judge Peck approved the proposed protocol for technology assisted review (TAR) presented by the parties, titling his opinion “Predictive Coding a.k.a. Computer Assisted Review a.k.a. Technology Assisted Review (TAR) — Da Silva Moore Revisited”.  Alas, as some unresolved issues remained regarding the parties’ TAR-based productions, Judge Peck decided to prepare the order appointing Grossman as special master for the case.  Grossman, of course, is a recognized TAR expert, who (along with Gordon Cormack) wrote Technology-Assisted Review in E-Discovery can be More Effective and More Efficient that Exhaustive Manual Review and also the Grossman-Cormack Glossary of Technology Assisted Review (covered on our blog here).

While noting that it has “no objection to Ms. Grossman’s qualifications”, the plaintiff issued several objections to the appointment, including:

  • The defendant should have agreed much earlier to appointment of a special master: Judge Peck’s response was that “The Court certainly agrees, but as the saying goes, better late than never. There still are issues regarding the parties’ TAR-based productions (including an unresolved issue raised at the most recent conference) about which Ms. Grossman’s expertise will be helpful to the parties and to the Court.”
  • The plaintiff stated a “fear that [Ms. Grossman’s] appointment today will only cause the parties to revisit, rehash, and reargue settled issues”: Judge Peck stated that “the Court will not allow that to happen. As I have stated before, the standard for TAR is not perfection (nor of using the best practices that Ms. Grossman might use in her own firm’s work), but rather what is reasonable and proportional under the circumstances. The same standard will be applied by the special master.”
  • One of the defendant’s lawyers had three conversations with Ms. Grossman about TAR issues: Judge Peck noted that one contact in connection with The Sedona Conference “should or does prevent Ms. Grossman from serving as special master”, and noted that, in the other two, the plaintiff “does not suggest that Ms. Grossman did anything improper in responding to counsel’s question, and Ms. Grossman has made clear that she sees no reason why she cannot serve as a neutral special master”, agreeing with that statement.

Judge Peck did agree with the plaintiff on allocation of the special master’s fees, stating that the defendant’s “propsal [sic] is inconsistent with this Court’s stated requirement in this case that whoever agreed to appointment of a special master would have to agree to pay, subject to the Court reallocating costs if warranted”.

So, what do you think?  Was the appointment of a special master (albeit an eminently qualified one) appropriate at this stage of the 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.

“Quality is Job 1” at Ford, Except When it Comes to Self-Collection of Documents: eDiscovery Case Law

In Burd v. Ford Motor Co., Case No. 3:13-cv-20976 (S.D. W. Va. July 8, 2015), West Virginia Magistrate Judge Cheryl A. Eifert granted the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s search and collection methodology, but did not rule on the issue of whether the defendant had a reasonable collection process or adequate production, denying the plaintiff’s motion as “premature” on that request.

Case Background

In these cases involving alleged events of sudden unintended acceleration in certain Ford vehicles, the plaintiffs, in December 2014, requested regularly scheduled discovery conferences in an effort to expedite what they anticipated would be voluminous discovery.

At the February 10, 2015 conference, the plaintiffs raised concerns regarding the reasonableness of the searches being performed by the defendant in its effort to respond to plaintiffs’ requests for documents.  While conceding that it had not produced e-mail in certain instances, because it did not understand that the request sought e-mail communications, the defendant did indicate that it had conducted a “sweep” of the emails of ten to twenty key custodians.  That “sweep” was described as a “self-selection” process being conducted by the individual employees, who had each been given information about the plaintiffs’ claims, as well as suggested search terms.  However, excerpts of deposition transcripts of defendant’s witnesses provided by the plaintiff revealed that some of those key employees performed limited searches or no searches at all.

Also, the Court ordered the parties to meet, confer, and agree on search terms.  The defendant objected to sharing its search terms, contending that the plaintiff sought improper “discovery on discovery,” and deemed the plaintiff’s request as “overly burdensome” given that each custodian developed their own search terms after discussing the case with counsel.

Judge’s Ruling

Noting that the defendant’s “generic objections to ‘discovery on discovery’ and ‘non-merits’ discovery are outmoded and unpersuasive”, Judge Eifert stated, as follows:

“Here, there have been repeated concerns voiced by Plaintiffs regarding the thoroughness of Ford’s document search, retrieval, and production. Although Ford deflects these concerns with frequent complaints of overly broad and burdensome requests, it has failed to supply any detailed information to support its position. Indeed, Ford has resisted sharing any specific facts regarding its collection of relevant and responsive materials. At the same time that Ford acknowledges the existence of variations in the search terms and processes used by its custodians, along with limitations in some of the searches, it refuses to expressly state the nature of the variations and limitations, instead asserting work product protection. Ford has cloaked the circumstances surrounding its document search and retrieval in secrecy, leading to skepticism about the thoroughness and accuracy of that process. This practice violates ‘the principles of an open, transparent discovery process.’”

Judge Eifert also rejected the defendant’s claim of work product protection regarding the search terms, stating that “[u]ndoubtedly, the search terms used by the custodians and the names of the custodians that ran searches can be disclosed without revealing the substance of discussions with counsel.”  As a result, Judge Eifert granted the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s search and collection methodology, but did not rule on the issue of whether the defendant had a reasonable collection process or adequate production, denying the plaintiff’s motion as premature on that request.

So, what do you think?  Was the order for a deposition of a Rule 30(b)(6) witness the next appropriate step?  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 Plaintiff’s Request for Spoliation Sanctions, as Most Documents Destroyed Before Duty to Preserve: eDiscovery Case Law

In Giuliani v. Springfield Township, et al., Civil Action No. 10-7518 (E.D.Penn. June 9, 2015), Pennsylvania District Judge Thomas N. O’Neill, Jr. denied the plaintiffs’ motion for spoliation sanctions, finding that the duty to preserve began when the case was filed and finding that “plaintiffs have not shown that defendants had any ill motive or bad intent in failing to retain the documents which plaintiffs seek”.

Case Background

In this harassment and discrimination case, the plaintiff owned land within the defendant’s township and alleged that the defendant’s zoning decisions violated the plaintiff’s civil rights violations. In June 2009, the defendant withdrew its opposition to the plaintiffs’ application for use of the property and its Zoning Hearing Board granted the plaintiffs’ zoning appeal, ending the zoning dispute.   The plaintiff then filed this new complaint against the defendant in January 2011.

The plaintiffs contended that the defendants’ production had been deficient because defendants “provided a miniscule number [of emails] in response to Plaintiffs’ [discovery] request[s] – just 24 emails spanning a seventeen-year period of near-constant controversy.”  In response, the defendants noted that, during the time period relevant to this case, it did not generate large volumes of email and also cited it’s document retention policy, which stated that “e-mail messages and attachments that do not meet the definition of records and are not subject to litigation and other legal proceedings should be deleted immediately after they are read”.

The defendants also did not preserve data relating to the case until the case was filed in 2011, believing that all of the outstanding issues related to the plaintiffs’ land development applications had finally been resolved after the zoning dispute was resolved in 2009.  The plaintiffs disputed that interpretation of when the duty to preserve arose and also pointed out instances where the defendants failed to instruct key custodians to preserve data related to the case.

Judge’s Ruling

With regard to the beginning of the duty to preserve by the defendants, Judge O’Neill stated that “Plaintiffs’ arguments are not sufficient to meet their burden to show that defendants’ duty to preserve files related to other properties, emails or planning commission board minutes was triggered at any time prior to the commencement of this action. They have not set forth any reason why I should disbelieve ‘the Township’s assertion that it had absolutely no reason to anticipate litigation until it was served with the Complaint on January 7, 2011,’…and that in June 2009, ‘with the property being leased in its entirety to one tenant, the Township . . . believed that all disputes with the Giulianis had come to an end.’”

As for alleged preservation failures after the duty to preserve commenced, Judge O’Neill determined that “Plaintiffs have not met their burden to establish that defendants actually suppressed the evidence they seek. At most, defendants lost or deleted the evidence plaintiffs seek as the result of mere inadvertent negligence. Plaintiffs have not set forth any proof that defendants in fact failed to preserve emails, documents relating to other properties or Planning Commission Board Minutes at any time after January 7, 2011…Further plaintiffs have not shown that defendants had any ill motive or bad intent in failing to retain the documents which plaintiffs seek.”  As a result, Judge O’Neill denied the plaintiffs’ motion for spoliation sanctions.

So, what do you think?  Should the duty to preserve have been applied earlier?  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.

Similar Spoliation Case, Somewhat Different Outcome: eDiscovery Case Law

Remember the Malibu Media, LLC v. Tashiro case that we covered a couple of weeks ago, which involved spoliation sanctions against a couple accused of downloading its copyrighted adult movies via a BitTorrent client?  Here’s a similar case with the same plaintiff and similar spoliation claims, but with a somewhat different outcome (at least for now).

In Malibu Media, LLC v. Michael Harrison, Case No. 12-cv-1117 (S.D. Ind. June 8, 2015), Indiana District Judge William T. Lawrence denied the plaintiff’s motion for summary judgment, upholding the magistrate judge’s ruling which found an adverse inference instruction for destroying a hard drive with potentially responsive data on it to be not warranted, and ruled that “it will be for a jury to decide” if such a sanction is appropriate.

Case Background

The plaintiff alleged that the defendant installed a BitTorrent Client onto his computer and then went to a torrent site to upload and download its copyrighted Work, specifically, six adult films (or portions thereof).  As in the Tashiro case, the plaintiff used a German company to identify certain IP addresses that were being used to distribute the plaintiff’s copyrighted movies, and the defendant was eventually identified by Comcast as the subscriber assigned to this particular IP address.

After the lawsuit was filed, in January 2013, the defendant’s hard drive on his custom-built gaming computer crashed and he took it to an electronics recycling company, to have it “melted”. He then replaced the gaming computer’s hard drive. In addition to his gaming computer, the defendant also had another laptop. During discovery, that laptop and the new hard drive were examined by forensic experts; while the laptop revealed extensive BitTorrent use, it did not contain any of the plaintiff’s movies or files and the new hard drive did not reveal any evidence of BitTorrent use.  Nonetheless, because of the destroyed hard drive, the plaintiff filed a motion for sanctions for the Intentional Destruction of Material Evidence, as well as a motion for summary judgment.

In an evidentiary hearing in December 2014, the magistrate judge recommended that the motion for sanctions be denied, concluding that the defendant “did not destroy the hard drive in bad faith”, that “[h]ad [Harrison] truly wished to hid adverse information, the Court finds it unlikely that [Harrison] would have waited nearly five months to destroy such information” and noted that he found the defendant’s testimony to be credible.  The plaintiff filed an objection to that report and recommendation, arguing that “bad faith should be inferred from the undisputed evidence.”

Judge’s Ruling

Regarding both the summary judgment motion and the motion for sanctions, Judge Lawrence stated the following:

“The Court agrees with Magistrate Judge Dinsmore that default judgment was not warranted in this case. That said, Magistrate Judge Dinsmore found an adverse inference not to be warranted because he found Harrison’s testimony to be credible. While the Court does not necessarily disagree with Magistrate Judge Dinsmore—in that it is certainly possible a jury would find Harrison’s testimony to be credible—ultimately, the Court believes this is an issue best left for a jury to decide. Malibu Media has presented sufficient evidence to the contrary, and in light of the fact that Malibu Media’s motion for summary judgment was denied on the same grounds, the Court believes leaving the issue of spoliation to the jury to be the best approach. Accordingly, at trial the Court will instruct the jury that if it finds that Harrison destroyed the gaming computer’s hard drive in bad faith, it can assume that the evidence on the gaming computer’s hard drive would have been unfavorable to Harrison.”

So, what do you think?  Should this case have been handled the same way the Malibu Media, LLC v. Tashiro case was handled?  Please share any comments you might have or if you’d like to know more about a particular topic.

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