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Case Law

Vacation Case Law Pop Quiz #1!: eDiscovery Case Law

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed.

If you’re reading the blog each day, these questions should be easy! If not, we’ve provided a link to the post with the answer. We’re that nice. Test your knowledge! Tomorrow, we’ll post the answers to this first vacation case law pop quiz for those who don’t know and didn’t look them up.

1. In which case did the judge state that the defendant’s “discovery misconduct calls for serious measures”?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

2. In which case did the court order the defendant to submit a further declaration supporting its claimed eDiscovery costs?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

3. In which case was a request for sanctions denied by the court?

A. James v. National Financial LLC

B. Ablan v. Bank of America

C. Federico et al. v. Lincoln Military Housing LLC, et al.

D. Requests for sanctions were granted in all of the above cases

4. In which case did the court decline to sanction a party for failing to produce or make available documents held by the plaintiff’s outside vendor?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

5. Which case involved allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

6. In which case did the judge issue an order titled “Order on One Millionth Discovery Dispute”?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

7. In which case did the court award attorney fees requested by the defendant to compensate for filing a motion to compel the plaintiff to produce documents?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

8. In which case was the plaintiff’s motion to compel the defendants to produce ESI again in native format denied by the court?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

9. In which case did the judge state that “the majority of the search terms suggested by Plaintiff are too generic and are likely to produce a large number of documents that are irrelevant to this case”?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

10. In which case did the appeals court reverse an award for attorney fees due to ESI requests that the lower court deemed as “clearly frivolous”?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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 Sanctions Plaintiff for Failing to Preserve Audio Recording: eDiscovery Case Law

In Compass Bank v. Morris Cerullo World Evangelism, Civil No. 13-CV-0654-BAS(WVG)(S.D. Cal. May 8, 2015), California Magistrate Judge William V. Gallo ruled that the plaintiff “wilfully engaged in the spoliation of relevant evidence”, and “has demonstrated a pattern of recalcitrant behavior during discovery in this litigation” and awarded an adverse inference jury instruction sanction against the plaintiff as well as defendant’s attorney fees and costs.

Case Background

During discovery in this case, the defendant issued two sets of document requests (in April and October 2014, respectively) which included all audio recordings relating to a letter of credit at the center of the dispute, allegedly issued on behalf of the plaintiff by its former branch manager. The plaintiff did not produce any audio recordings during discovery. Then, on February 12 of this year, the defendant took the deposition of the plaintiff’s Rule 30(b)(6) witness, during which she stated that during a phone call with the former branch manager in February of 2013, he admitted that he issued the letter of credit. She also testified that the plaintiff automatically records all of her phone calls in the regular course of business, and automatically records the calls of all its Trade Service Division officers. During her deposition, the plaintiff’s Rule 30(b)(6) witness stated, “our lines in international trade services and the letter of credit are recorded 24/7.”

The defendant immediately requested that the plaintiff produce the audio recording of the subject call. In a letter dated March 6, 2015, the plaintiff informed the defendant that it could not locate any such recording. The defendant subsequently filed a motion for sanctions, requesting either terminating or adverse inference jury instruction sanctions against the plaintiff, presenting evidence that the plaintiff had only searched one of the witness’s work phone numbers, when she actually had two phone numbers.

Judge’s Ruling

Because one of the main disputes in this case is whether the plaintiff issued the letter of credit and the audio recording seemed to verify that, Judge Gallo ruled that “the relevance of this evidence cannot reasonably be disputed”. He also ruled that the plaintiff had a duty to preserve the recording, noting that even though “the subject call occurred prior to Plaintiff filing the Complaint, Plaintiff has previously argued to this Court that it reasonably anticipated litigation regarding the letter of credit in February of 2013.”

With regard to whether the evidence was lost or destroyed with a culpable state of mind, based on the fact that “no evidence has been presented to the Court that Plaintiff initiated a litigation hold” and that “not only did Plaintiff not produce the recording of the subject call or any other calls, it utterly failed to even disclose that such calls were recorded”, Judge Gallo found that “Plaintiff wilfully failed to produce the recording in response to discovery requests, wilfully failed to conduct a diligent search in an effort to locate the recording, and wilfully withheld the recording from Defendant”. Judge Gallo also noted that the plaintiff “has a history of being recalcitrant and failing to produce relevant discovery” for failing to produce an Interview Summary of the former branch manager under the work product doctrine that ultimately proved to be clearly not protected.

As a result, Judge Gallo, while declining to award terminating sanctions, awarded a “less drastic” adverse inference jury instruction sanction against the plaintiff as well as ordered the plaintiff to reimburse defendant’s attorney fees and costs to be determined after a review the defendant’s detailed time calculations and declaration(s).

So, what do you think? Do you agree that the audio recording was lost or destroyed with a culpable state of mind? 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 Deposition of Expert to Evaluate Issues Resulting from Plaintiff’s Deletion of ESI: eDiscovery Case Law

In Procaps S.A. v. Patheon Inc., 12-24356-CIV-GOODMAN, 2014 U.S. Dist. (S.D. Fla. Apr. 24, 2015), Florida District Judge Jonathan Goodman ordered the deposition of a third-party computer forensic expert, who had previously examined the plaintiff’s computers, to be conducted in part by a Special Master that had been appointed to examine the eDiscovery and forensic issues in the case. The purpose of the ordered deposition was to help the Court decide the issues related to files deleted by the plaintiff and assist the defendant to decide whether or not to file a sanctions motion.

Case Background

Although the plaintiff filed suit in this antitrust case in December 2012, it did not implement a formal litigation hold until after February 27, 2014, when this Court ordered one to be implemented in response to the defendant’s motion. Beyond not implementing a formal hold, the plaintiff’s counsel acknowledged that its document and electronically stored information (“ESI”) search efforts were inadequate. Its US lawyers never traveled to Colombia (where the plaintiff is based) to meet with its information technology team (or other executives) to discuss how relevant or responsive ESI would be located, and it did not retain an ESI retrieval consultant to help implement a litigation hold or to search for relevant ESI and documents. In addition, some critical executives and employees conducted their own searches for ESI and documents without ever seeing the defendant’s document request or without receiving a list of search terms from its counsel.

The plaintiff ultimately agreed to a forensic analysis by an outside vendor specializing in ESI retrieval and the Court appointed a neutral computer forensic expert to analyze the plaintiff’s ESI and later appointed a Special Master to assist the Court with ESI issues. Completed in May 2014,the report, which was “thousands of pages long” from the forensic expert, showed that “nearly 200,000 emails, PDFs, and Microsoft Word, Excel, and PowerPoint files were apparently deleted” and “[i]t appears that approximately 5,700 of these files contain an ESI search term in their title, which indicates that they could have been subject to production in the forensic analysis if they had not been deleted.”

The defendant filed a motion to conduct the deposition of the neutral third-party expert to explain the report and the plaintiff filed an opposing response.

Judge’s Ruling

You’ve got to love an opinion that begins by quoting both eighteenth century English writer Samuel Johnson and the recently departed B.B. King. Judge Goodman began his analysis by referencing Federal Rule of Evidence 706, noting that it “governs court-appointed expert witnesses” and that “Subsection 706(b)(2) provides that such witnesses ‘may be deposed by any party.’” With regard to the plaintiff’s objection that such depositions are not very common, he stated that “regardless of whether depositions of court-appointed neutral experts on computer forensic issues are very common, used occasionally or are actually rare and atypical, they are certainly permissible. As noted, Federal Rule Evidence 706(b)(2) expressly provides for them. Moreover, there are published opinions discussing these types of depositions without critical comment. Perhaps more importantly, district courts have ‘broad discretion over the management of pre-trial activities, including discovery and scheduling.’”

Judge Goodman also rejected the plaintiff’s objection about the purported tardiness of the motion, noting that the forensic analysis took more than a year and was not completed until the first week of April 2015. He stated that “the deposition would undoubtedly be of great help to the Court. If I were to deny the motion, as Procaps urges, then I would be undermining my own ability to grapple with the myriad, thorny issues which will surely arise in the next several weeks or months.

Therefore, the Undersigned hopes to be able to ‘get by with a little help from my [ESI neutral expert] friends’ and is ‘gonna try [to comprehensively and correctly assess the to-be-submitted ESI issues] with a little help from my friends.’ Granting Patheon’s motion will enable the Undersigned to accomplish that goal; denying it would render that specific goal unattainable (and make the ESI spoliation/sanctions/trial evidence/bad faith/significance of missing evidence/prejudice evaluation more difficult).”

As a result, Judge Goodman ordered the deposition of the third-party computer forensic expert to be conducted in part by the Special Master and laid out the procedures for the deposition in his order.

So, what do you think? Was the judge right in ordering the deposition? Please share any comments you might have or if you’d like to know more about a particular topic.

This isn’t the first time we’ve covered this case, click here for a previous ruling we covered back in May 2014.

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 Produce Employees’ Personal Data in EEOC Dispute: eDiscovery Case Law
 

In EEOC v. DolgenCorp LLC d/b/a Dollar General, No. 13-cv-04307 (N.D. Ill. May 5, 2015), Illinois District Judge Andrea R. Wood granted the plaintiff’s motion to compel the defendant to produce electronically-stored information (“ESI”) containing personal information of the defendant’s conditional hires and complete versions of documents that the defendant previously produced with portions redacted due to purported lack of relevance. She also ordered the plaintiff to produce documents previously withheld due to privilege for an in camera review.

Case Background

In this employment discrimination case, the plaintiff filed a motion to compel the defendant to produce ESI regarding conditional hires, including electronic data with names, social security numbers, addresses, and telephone numbers. The EEOC also asked the court to reproduce certain ESI that Defendant redacted due to purported lack of relevance, contending that it needed the ESI to prove its allegations that criminal background checks for African-American applicants had a disparate impact and violated federal law. While admitting that the information was relevant to the litigation, the defendant argued that producing this information would infringe on the privacy rights of the applicants. With regard to the redacted documents, the defendant argued that the redactions should stay because the information was proprietary and not relevant to the litigation.

In turn, the defendant filed a motion to compel the plaintiff to produce certain statistical analyses during the plaintiff’s investigation to determine whether to issue a reasonable cause determination of discrimination – these documents were not produced as they were deemed deliberative process and attorney work product privileged.

Judge’s Ruling

With regard to the personal information requested by the plaintiff, Judge Wood stated that the plaintiff “has established that the personal information it seeks is relevant to this litigation. The requested data fields are unquestionably calculated to lead to the discovery of admissible evidence by permitting the EEOC and its experts more effectively to analyze the statistical impact of Dollar General’s use of criminal background checks. As explained above, the information sought will be used to link several large databases together, allowing the EEOC to perform its disparate impact analysis. It will also permit the EEOC’s experts to analyze whether non-racial demographic factors may have caused a statistical impact.”

As for the defendant’s motion to compel, Judge Wood stated that the “Court is unable to determine the legitimacy of the EEOC’s deliberative process and attorney work product assertions without reviewing the documents in question. Accordingly, the Court orders the EEOC to deliver copies of the withheld documents to the magistrate judge (who is now responsible for supervising discovery) for in camera review. Upon reviewing the documents along with the EEOC’s privilege log, the magistrate judge will determine the applicability of the asserted privileges in light of the governing legal principles.”

So, what do you think? Was the court correct in ordering production of the personal information, or should the privacy rights of the individuals have taken precedent? 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 Untangles Form of Production Dispute with Curling Iron Manufacturer: eDiscovery Case Law

In Wilson v. Conair Corp., 1:14-cv-00894-WBS-SAB (E.D. Cal. Apr. 30, 2015), California Magistrate Judge Stanley A. Boone granted in part the plaintiff’s motion to compel production, by requiring the defendant to produce further ESI in native format if feasible or TIFF format with the associated metadata, as well as to produce associated metadata for its prior production if it had not already done so.

Case Background

In this product liability class action, the parties disputed the production format of the electronically stored information (ESI) provided by the defendant, as the plaintiff requested the ESI to be produced in native format or, alternatively, in TIFF format with accompanying metadata, whereas the defendant produced the ESI in PDF format, including for Excel files where the defendant produced them as PDF’s in order to redact information. The plaintiff contended that “data produced in the TIFF format is more efficient, cost effective, and better suited for use inside a database application and it will require additional work to get the data produced in PDF format into a usable state”.

At least some of the ESI in the defendant’s possession existed in a proprietary, third-party “STARS” database which could not be accessed by the plaintiff, so the dispute over those proprietary files was primarily one of plaintiff requested TIFFs with metadata vs. the defendant produced PDFs. In the Joint Statement, the defendant indicated that they were willing to produce all future documents in TIFF format. As for the Excel files, the plaintiff sought for them to be produced in native file format, which the defendant ultimately agreed to do during the hearing.

The plaintiff also sought documents and information pertaining to 45 models of styling irons, whereas the defendant argued that discovery should be, at most, limited to the two models used by the primary plaintiff in the case.

Judge’s Ruling

Judge Boone quoted Fed. R. Civ. P. 34(b)(2)(E) which includes statements that “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”, “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 or forms” and “A party need not produce the same electronically stored information in more than one form”.

As Judge Boone noted, “The Rules do not require a party to produce ESI in the form most helpful to the opposing party…Defendant is unable to produce the STARS data in its native format as it would be unreadable to Plaintiff. Defendant is not required produce the same electronically stored information in more than one form, Fed. R. Civ. P. 34(b)(2)(E)(iii). Defendant has agreed to produce any additional discovery in TIFF format, and that shall be the order of the Court.”

As for the metadata, Judge Boone, while noting that the defendant had “agreed to produce all further files with the associated metadata”, ruled that agreement didn’t go far enough. “When the potential relevance of metadata is not questioned then it is discoverable”, he stated, ruling that “For those documents already produced that are the subject of this dispute, Defendant shall produce the associated metadata if they have not already done so.”

The defendant was also ordered to “supplement their responses to Request for Production No. 18 for all forty-five models where the complaint is a failure of the power cord”, but the plaintiff’s request to require the defendant to produce additional discovery on the forty-five models was “denied at this time”.

So, what do you think? Could this dispute have been avoided with an agreement up-front? 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.

Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation: eDiscovery Case Law

In Clear-View Technologies, Inc., v. Rasnick et al, 5:13-cv-02744-BLF (N.D. Cal. May 13, 2015), California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants’ spoliated documents due to a series of “transgressions” by the defendants and their prior counsel.

You’ve got to love an order that begins this way:

“Deployment of ‘Crap Cleaner’ software—with a motion to compel pending. Lost media with relevant documents. False certification that document production was complete. Failure to take any steps to preserve or collect relevant documents for two years after discussing this very suit. Any one of these transgressions by {the defendants} and their prior counsel might justify sanctions. Taken together, there can be no doubt.”

This case arose from the defendants’ alleged conspiracy with certain former plaintiff’s employees to take over the plaintiff’s company or, failing that, to divert their personnel, intellectual property and investors to a competing enterprise to commercialize the plaintiff’s alcohol tracking product known as the “BarMaster”. As early as May 2011, the plaintiff threatened Defendants with litigation for interfering with the plaintiff’s operations, ultimately filing suit in June 2013.

After the plaintiff’s discovery requests yielded just 422 pages produced by the defendants (including no communications solely between defendants and virtually no communications between defendants and any “co-conspirator” identified in the plaintiff’s requests) the plaintiff moved to compel further production and in September 2014, the court granted the motion and ordered that “(i) Defendants appear by September 23 for depositions regarding ‘document preservation and production,’ and (ii) the parties meet and confer in order to submit to the court by September 30 ‘a plan to retain an independent consultant to do a limited forensic collection and analysis of the media associated with each named defendant.’”

During the depositions, the individual defendants admitted having deleted numerous emails and text messages, failing to preserve devices that potentially responsive data was stored on, failing to search key media and failing to use obvious search terms in the searches that they did perform. Meanwhile, in October 2014, per the parties’ joint agreement, the Court selected the a digital forensics firm (at the defendants’ expense) to perform a forensic analysis of Defendants’ media and email accounts, with the order calling for the defendants to produce over 40 specified electronic media and email accounts for forensic imaging.

The digital forensics firm ultimately found 2,593 relevant documents totaling 12,467 pages – over 12,000 pages more than the defendants had previously produced and also determined that “four separate system optimization and computer cleaning programs were run” (including CCleaner, aka “Crap Cleaner”) on one defendant’s laptop. These programs were loaded onto his laptop and executed on July 22, 2014 – just six days after the filing of the plaintiff’s motion – and resulted in the deletion of “over 50,000 files”. For that and other apparent instances of spoliation of data among the defendants, the plaintiff requested monetary sanctions, an adverse inference instruction and terminating sanctions.

Judge’s Ruling

With regard to the duty to preserve, Judge Grewal stated that “Once upon a time, the federal courts debated exactly when the duty to preserve documents arises. No more. “The duty to preserve evidence begins when litigation is `pending or reasonably foreseeable.’”

Finding that the defendants “were on notice of foreseeable litigation well before spoliation occurred”, that their “spoliation occurred with the required culpable mindset” and that they “failed to produce thousands of documents that contained key terms that the parties designated as relevant to the litigation”, Judge Grewal ruled that “In sum, sanctions are warranted. The only question is what kind.”

Ultimately, Judge Grewal awarded “expenses and fees in this discovery dispute under Fed. R. Civ. P. 37(b)(2)(C)” of $212,320 and granted the request for an adverse instruction that the unproduced material may be deemed to support the plaintiff’s contentions. He also ruled that “Defendants’ prior counsel also must be sanctioned for improperly certifying Defendants’ discovery responses, and for subsequently failing to intervene even after ‘obvious red flags’ arose, such as Defendants’ failure to produce incriminating documents CVT obtained from their third parties.” Also, based on information that the defendants had “stiffed on the bill” for the digital forensics firm, Judge Grewal ruled that “Defendants shall show cause why they should not face further sanctions for this failure.”

Judge Grewal, however, declined to recommend terminating sanctions “in light of public policy and the sufficiency of monetary sanctions and an adverse jury instruction”.

So, what do you think? Should the request for terminating sanctions 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.

Court Rejects Defendants Motion Seeking Limitless Access to Plaintiff’s Facebook Account: eDiscovery Case Law

We haven’t had a good social media request case in a while – here’s one that compares to other cases we’ve covered in the past…

In the class action In re Milo’s Kitchen Dog Treats Consolidated Cases, Civil Action No. 12-1011 (W.D. Penn. April 14, 2015), Pennsylvania Magistrate Judge Maureen P. Kelly denied the defendants’ Motion to Compel Unredacted Facebook Data File and Production of Username and Password, disagreeing that the discovery of one highly relevant Facebook entry justified the defendants to be “somehow entitled to limitless access to her Facebook account”. Judge Kelly did order the plaintiff to produce previously produced redacted Facebook pages to the Court unredacted so that an in camera inspection could be conducted to confirm that the redacted information was truly privileged.

Case Background

In this case, based on the discovery of the posting on the plaintiff’s Facebook page in which she indicated that another brand of chicken jerky dog treats caused the harm to her dog, the defendants were of the belief that there could be other relevant information on her Facebook account. The defendants sought that information in their Second Request for production, asking the plaintiff to produce “the Facebook Data and Facebook Data File of Lisa Mazur and/or Lisa Pierwsza Mazur.” Despite the fact that the defendants’ request was unlimited and objected to by the plaintiff as inherently overbroad, she nevertheless responded to the request and provided 648 pages of Facebook data, albeit redacted. The Facebook data provided contained information indicating that Plaintiff purchased dog treats other than Defendant’s brand, as well as conversations the plaintiff had with others about the dog treat brand and the case.

The defendants argued that it was improper for the plaintiff to unilaterally decide what should be redacted complaining that the location of certain redactions were “suspect” and contended that they were entitled to unfettered access to Plaintiff’s Facebook account including her username and password. Citing Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011), Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) and McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), suggesting that “these cases stand for the proposition that Facebook accounts are always subject to unrestricted access once a threshold showing of relevance has been made”.

Judge’s Ruling

Referencing Fed.R.Civ.P. 26(b)(1), Judge Kelly stated that “Rulings regarding the proper scope of discovery, and the extent to which discovery may be compelled, are matters consigned to the Court’s discretion and judgment. A party moving to compel discovery bears the initial burden of proving the relevance of the requested information.”

With regard to the three cases cited by the defendants, Judge Kelly noted that they were “factually distinguishable from the instant case and, in this Court’s view, do not require the limitless access to Plaintiff’s Facebook account data advocated by Defendants.” In Largent v. Reed, for example, the plaintiff had refused to provide any Facebook data, whereas the plaintiff here produced 648 pages from her Facebook account. Judge Kelly also observed that pictures of the plaintiff “enjoying life with her family” in Facebook would not near as relevant as they would be in a personal injury litigation like Largent.

Agreeing with the plaintiff’s argument, Judge Kelly stated that “having already provided Defendants with Facebook data relevant to the case, Defendants have failed to make any showing that further production of her Facebook records would result in the dissemination of any more relevant information than has already been provided.” She therefore denied the defendants motion to compel.

With regard to the redactions, the plaintiff had redacted a conversation with another purported class member in the case because their conversation revolved around “specific advice given by class counsel as to the litigation and its progress”. Because of the dispute over the validity of the redactions, Judge Kelly decided “out of an abundance of caution”, “that the best course is to have Plaintiff produce the claimed privileged documents to the Court so that an in camera inspection can be conducted. In this manner, any truly privileged information will remain protected and Defendants can proceed confident that they have received all the relevant and non-privileged information from Plaintiff’s Facebook data.”

So, what do you think? Was that the correct decision or should the judge have treated this case like the three cases cited by the defendant? 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.

Oh, Thank Heaven! Court Orders 7-Eleven to Produce Metadata: eDiscovery Case Law

In Younes, et al. v. 7-Eleven, Inc., Civil Nos. 13-3500 (RMB/JS), 13-3715 (MAS/JS), 13-4578(RMB/JS) (D.N.J. Mar. 18, 2015), New Jersey Magistrate Judge Joel Schneider granted the plaintiffs’ motions to compel the production of metadata for selected groups of documents, denying the defendant’s cross-motions to bar the production of metadata.

Case Background

In this dispute between franchisees and the parent company, the plaintiffs had struggled to obtain relevant documents from the defendant regarding the possible take back of franchises, with the defendant producing documents “in dribs and drabs”. Even after months of discovery and numerous court conferences addressing discovery disputes, the defendant acknowledged that not all relevant, requested and non-privileged documents had been produced. Moreover, some of the key documents produced were not dated and did not list the author or recipients.

As a result, one plaintiff group identified 38 documents and two Excel spreadsheets for which they wanted metadata (including “the date of origination, author, custodian, date of each modification and author of each modification, and to the extent available, any data which established to whom the document had been electronically distributed”), while the other plaintiffs sought metadata for an additional 49 documents, two of which were duplicative of the first group of documents. The plaintiff groups filed motions to compel production of the metadata.

The defendant, in its opposition to plaintiffs’ motions and in support of its cross-motions, argued that “(1) the parties agreed at the outset of the case that documents need only be produced in PDF format without metadata; (2) 7-Eleven does not possess much of the requested metadata; (3) the metadata that is available is ‘extremely limited, minimally meaningful and potentially misleading’; and (4) it would be ‘unreasonably burdensome to require 7-Eleven to re-produce [its] . . . documents with metadata.’” (emphasis added) The defendant supported its opposition with statements from the Declaration of its IT director.

Judge’s Evaluation and Ruling

Citing Fed. R. Civ. P. 34(b)(2)(E), Judge Schneider noted that “A party requesting ESI may specify the form of production, which can include metadata”, but did also note that “[s]ome courts hold that a party must show a ‘particularized need’ for metadata.” With regard to that, Judge Schneider stated:

“To the extent it is necessary, plaintiffs have shown a particularized need for the requested metadata. Plaintiffs have demonstrated that many of the paper documents produced to date are missing source, date, and other key background information. This missing information is plainly relevant and discoverable. Further, the requested metadata is relevant to authenticating 7-Eleven’s documents, especially since the authors or creators of some important documents are unknown. It is not insignificant that plaintiffs only identified a relatively small number of documents for which they request metadata rather than asking for metadata for all documents.”

Judge Schneider also found that “None of 7-Eleven’s arguments are persuasive. It is true that the parties originally agreed not to request metadata. However, good cause exists to modify the agreement… Had plaintiffs known at the outset of the case the difficulties they would face in obtaining relevant information regarding 7-Eleven’s documents, it is unlikely they would have agreed to forego requesting metadata. The changed circumstances plaintiffs face justify modifying their earlier agreement not to request metadata… Further, plaintiffs are not requesting metadata for all of 7-Eleven’s documents. Plaintiffs only request metadata for a finite number of documents. The Court does not expect the cost to retrieve the requested metadata to be extensive or costly.”

As a result, he granted the plaintiffs’ motions to compel the production of metadata for the selected groups of documents, denying the defendant’s cross-motions to bar same.

So, what do you think? Was that the correct decision or should the judge have honored the initial agreement between the parties to not require 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.

Appeals Court Upholds “Death Penalty Order” Sanction That Leads to Multi-Million Dollar Judgment: eDiscovery Case Law

In Crews v. Avco Corp., No. 70756-6-I (Wash. Ct. App. Apr. 6, 2015), a Washington Court of Appeals upheld a “death penalty order” against the defendant for discovery violations, including the failure to produce relevant information, but remanded for amendment of the final judgment of over $17.28 million to reflect any offsets for settlements with other defendants.

Case Background

In this product liability case related to a faulty carburetor that was associated with a plane crash in which several people were killed, the defendant failed to satisfy the plaintiffs’ discovery demands from October 2010 into February 2013, often objecting to most, if not all, of the requests. During part of that time, the defendant relied in part upon its document retention policy and, after being held in contempt, the defendant submitted a declaration from counsel describing its efforts to comply with the court’s order to produce. While not providing the policy itself, counsel explained that “pursuant to company policy” certain categories of documents were “retained only for fixed periods of time” and stating that many of the documents supplied by another defendant were “beyond the various retention periods” in the policy. Ultimately, the plaintiffs’ filed a motion for default against the defendant.

On February 4, 2013, the first day of trial, the judge held oral argument on the plaintiffs’ motion for default, during which the defendant’s counsel finally produced a copy of the records management policy. After reviewing the policy, the judge found that it was unclear whether the policy extended to the documents requested by the plaintiffs and orally granted the plaintiffs’ motion to sanction the defendant. The next day, the judge entered a written order granting the plaintiffs’ motion. The order stated that there was substantial evidence that the defendant did not comply with the plaintiffs’ discovery requests and the court found that the withheld discovery tied directly to the plaintiffs’ burden of proof regarding the defendant’s violation of federal regulations and punitive damages.

The court found that the defendant’s “continued disregard and violation of the discovery and contempt orders is without reasonable excuse and is willful. [Avco] has and continues to substantially prejudice plaintiffs’ preparation for trial and presentation at trial, on issues of liability, causation, and punitive damages.” As a result, the court ruled that “All of each plaintiff’s allegations in their respective operative Complaints against [Avco] are deemed admitted, and all of [Avco’s] defenses, if any, are stricken.”

The jury considered compensatory damages and punitive damages in two separate phases of trial, returning a verdict for the plaintiff of $17,283,000; $6 million of which was in punitive damages. The defendant appealed on multiple grounds, arguing that the order violated due process and that the trial court abused its discretion in imposing the most severe sanctions possible when lesser sanctions would have sufficed and also challenged specific sanctions.

Appeals Court Analysis

Assessing the defendant’s objections, the appellate court described the requirements to justify harsh sanctions – that the discovery violations were willful or deliberate, that the opposing party was substantially prejudiced, and that the trial court explicitly considered lesser sanctions. Following considerable analysis, the appellate court found that the trial court did not abuse its discretion in its findings that the violation of the discovery order was willful, that the plaintiffs’ case was prejudiced and that lesser sanctions would not be adequate for a fair trial.

With regard to the records management policy, the appellate court, while observing that the policy was not part of the record, agreed that the “scope and operation of the policy is unclear and unsupported” and that the defendant “did not submit any other evidence, such as employee affidavits, about how the policy applied to the requested documents and their destruction”.

Though the appellate court essentially affirmed the sanctions imposed, it did remand the case for “amendment of the final judgment to reflect any offsets authorized pursuant to chapter 4.22 RCW.”

So, what do you think? Were the sanctions appropriate or should the court have considered lesser sanctions against the defendant? 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.

Denial of Motion for Spoliation Sanctions Leaves Plaintiff Less Than Glad: eDiscovery Case Law

In Gladue v. Saint Francis Medical Center, 1:13-CV-186-CEJ (E.D. Mo. Mar. 24, 2015), Missouri District Judge Carol E. Jackson denied the plaintiff’s motion for evidentiary and monetary sanctions due to spoliation of evidence, finding that the defendant did not have a duty to preserve emails deleted as part of routine IT operations, had diligently attempted to recover deleted emails and that the plaintiff failed to show that any of the unrecovered emails were relevant to her claims.

Case Background

In this employment case, the plaintiff’s employment was terminated in December 2011. As part of the defendant’s routine IT operations, the plaintiff’s email account was purged in March 2012. At that time, plaintiff had not filed either a lawsuit against the defendant or a charge of discrimination with the Equal Employment Opportunity Commission – the defendant was first contacted by the plaintiff’s then-attorney in June 2012 regarding the plaintiff’s employment discrimination claims.

On June 16, 2014, after this lawsuit was filed, the plaintiff submitted a request for production of all of her work emails and her calendar. Because her account had been purged, the defendant undertook several efforts to retrieve the emails, including conducting a search for all emails sent to or received from plaintiff in the accounts of every employee identified in the parties’ Fed. R. Civ. P. 26 disclosures. The defendant ultimately produced over 24,600 pages of emails and related documents to the plaintiff in two productions (nearly three months before the close of discovery), but acknowledged that there were no guarantees that every lost item was retrieved. The plaintiff filed a motion for evidentiary and monetary sanctions due to spoliation of evidence.

Judge’s Opinion

Finding that a “litigation hold was not required at the time plaintiff’s e-mails were deleted”, Judge Jackson ruled that the defendant “has shown that plaintiff’s e-mails were deleted as part of a routine maintenance procedure, rather than in bad faith. Moreover, defendant has diligently attempted to recover the missing documents.”

Judge Jackson also noted that the defendant produced documents to the plaintiff “nearly three months before the close of discovery and almost four months before the deadline for filing dispositive motions. Thus, as to the timing of the productions, no exceptional circumstances justify sanctions.” She also found that “plaintiff has failed to show that any of the unrecovered e-mails are relevant to her claims” and noted that “plaintiff is incorrect in her contention that defendant is at an advantage because it can use the undisclosed e-mails in this litigation” as “Fed. R. Civ. P. 37(c)(1) forbids defendant from using any document that has not been produced to plaintiff at summary judgment or trial.”

As a result, Judge Jackson ruled that “plaintiff is not prejudiced and no exceptional circumstances exist to justify sanctions” and denied her motion for sanctions.

So, what do you think? Did the plaintiff’s motion really ever stand a chance? 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.