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Case Law

Search Process for ESI Called into Question, but Court Denies Sanctions for Plaintiff – eDiscovery Case Law
 

In Brown v. West Corp., No. 8:11CV284, 2013 U.S. Dist. (D. Neb. Dec. 4, 2013), the plaintiff filed a motion to compel, claiming the defendant had been insufficient in its handling of searching for Electronically Stored Information (ESI) relevant to discovery. The plaintiff additionally contested a prior order from a magistrate judge, requiring the defendant to explain its search processes to the defendant. Ultimately, Nebraska Senior District Judge Lyle E. Strom denied the requested sanctions and rejected the challenge to the prior order.

The most recent motion saw the plaintiff asking for sanctions under Federal Rule of Civil Procedure 37(b), stating that the defendant failed to comply with the prior order, the purpose of which was stated to “lay bare the defendant’s search process and expose any deficiencies that might be a basis for plaintiff’s motion to compel a more stringent search of potentially relevant ESI for preservation.” In addition, the plaintiff asked that additional discovery be permitted.

However, the defendant had in fact complied with the prior order and explained its search processes regarding ESI, noting that its system did not permit a “‘global search’ of all electronic information in West’s possession.” The substance of the magistrate judge’s concerns regarding the prior order had concerned preservation of ESI, and not necessarily discovery requests. Judge Strom noted that the plaintiff had misinterpreted the prior order, and that the defendants had addressed concerns by “explaining the process by which West employees were directed to identify, preserve, and search potentially relevant materials.” Therefore, “the court finds no reason to require more from the defendant by way of evidence of a proper search.”

In the same motion and combined with the efforts to seek expanded discovery, the plaintiff raised two issues of spoliation. One that the defendant had erased the data of three potential custodians who had left the company, and two, that the defendant had failed to halt the automatic deletion of e-mail which may have been relevant to discovery.

Regarding these issues, Judge Strom once again rejected the contentions, stating that the defendant had repurposed the computers of former employees in apparent good faith, and as a regular business practice, “only after making a determination that all of the relevant information stored on those computers was preserved.” Additionally, the objection to automatic email deletion was dismissed because the plaintiff had not identified relevant emails or email categories that are “not subject to defendant’s preservation process or that have been deliberately destroyed in an attempt to thwart discovery.”

Finally, the plaintiff’s request to overturn the magistrate judge’s order that limited discovery to certain custodians was denied. Regarding Federal Rule 26(b), which states in part that requests for discovery should be limited due to “relevance and the balance between likely benefit and the burden on the producing party,” the magistrate judge had found nothing that would “suggest sufficient benefit [to the plaintiff] to warrant the expansive scope of the requested discovery” as outlined by the plaintiff. Such a scope, the magistrate judge felt, would be “grasping at the periphery by reviewing thousands or tens of thousands of emails,” and further that, “a few pointed questions in a deposition [would be] less burdensome.”

So, what do you think?  Should defendants be permitted to limit responses to discovery when producing ESI due to the limitations of their technology? 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Sanctions Awarded when Defendant Failed to Preserve Relevant Evidence – eDiscovery Case Law

In Zest IP Holdings, LLC v. Implant Direct Manufacturing, LLC., No. 10-0541-GPC(WVG), 2013 U.S. Dist. (S.D. Cal. Nov. 25, 2013), California Magistrate Judge William V. Gallo granted the Plaintiff’s motion for sanctions because parties are “required to preserve evidence relevant to litigation and to prevent spoliation.”  Judge Gallo found that the Defendant “failed to preserve multiple documents that are relevant to Plaintiff’s claims with the requisite culpable state of mind to support a finding of spoliation of evidence”.

The plaintiffs sought sanctions for the defendants’ alleged spoliation and other discovery abuses during this patent and trademark infringement action. The defendant was notified by letter on August 8, 2008 that it was believed the defendant’s product was an unlawful replica of the plaintiff’s product. The plaintiff sent a subsequent cease and desist letter with intentions to file suit on October 22, 2008.

Despite receiving these letters, the defendants continued manufacturing their product.  It was the defendant’s belief that because the plaintiff’s did not file their complaint until March 2010 that there was no duty on behalf of the defendant to preserve any documents, especially as the plaintiffs did not request this of the defendant. The plaintiffs requested sanctions because the defendants never instituted a litigation hold, did not take steps to preserve documents, and failed to instruct employees to preserve any documents.  Furthermore, the defendants had no backup storage system in place to prevent the destruction of documents. They initially believed e-mails were “‘automatically preserved” on a server under their control, however it was discovered that this was not the case and e-mails could be deleted.

The defendants argued that these omissions did not warrant sanctions due to their company policy, which stated that “no documents are to be deleted.”  It was further believed by the defendant that their employees would never delete any company documents. However, this contention was challenged when testimony from various employees who claimed they had, in fact, deleted e-mails. The CEO of the defendant company, Implant Direct Manufacturing, LLC, claimed in his deposition he had six e-mail accounts, however not one of the messages in these accounts were ever preserved or produced. In fact, he said he did not even bother searching these accounts for any relevant documents due to a file folder on his desktop where he saved all messages relating to the plaintiffs.

Judge Gallo found that the defendants’ duty to preserve documents began when they received the October 22, 2008 letter requesting the defendant cease and desist production of the product, as well as informing them of the plaintiffs’ intent to sue. The documents they destroyed thereafter were “highly probative” of the claims in the plaintiffs’ lawsuit and therefore the plaintiffs suffered prejudice as a result of the defendant’s actions. Additionally, the defendant failed to monitor its employees’ compliance with its so-called policy of saving all e-mails.  The defendants’ conduct, however, did “not rise to the level of bad faith sufficient to warrant default judgment under the circumstances”, but Judge Gallo found an adverse inference instruction proper under the Zubulake test.  Judge Gallo also awarded monetary sanctions because the defendants’ “negligence and their denial of spoliation of evidence caused delay and unnecessary costs that could have been avoided.”

So, what do you think?  Was Judge Gallo right to award sanctions? Please share any comments you may 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

‘Discovery About Discovery’ Motions Lead to Unusual Court Decision – eDiscovery Case Law
 

In Ruiz-Bueno v. Scott, No. 2:12-cv-0809, 2013 U.S. Dist. (S.D. Ohio Nov. 15, 2013), a discovery dispute in this wrongful death case arose, leading Ohio Magistrate Judge Terence P. Kemp to arrive at the unusual decision to direct a party to provide ‘discovery about discovery.’

The dispute arose when the plaintiffs filed a second set of interrogatories. Due to concern regarding the small amount of electronically stored information (ESI) produced by the defendants during the first round of discovery, the plaintiffs sought to compel the defendants to answer two questions: “(1) what efforts they made to comply with plaintiffs’ previous discovery requests, and (2) what procedures or methods were used to search for responsive electronically stored information, or ESI.”

In response, the defendants offered a simple objection on the basis that information sought by the plaintiffs’ request was irrelevant and had “no bearing on any aspect of the case.” The defendants alleged that discovery is not a “claim or defense” in this particular case, and cited Fed.R.Civ.P. 26(b)(1), which limits the proper scope of discovery to “any nonprivileged matter that is relevant to any party’s claim or defense.”

Judge Kemp noted that not every case justifies directing council to provide discovery about discovery, but that the circumstances here required such direction, because the defendants were not “forthcoming with information needed to make further discussion of the issue a collaborative rather than contrarian process.” It was noted that the current dispute arose from the “plaintiffs’ distrust of the diligence with which defendants searched for ESI,” although it was conceded that the defendants likely believed they had “made a good faith effort to locate and produce all relevant emails.”

However, in this case the defendants had not collaborated with the plaintiffs to share information about their search protocols, other than to state that each of 50 defendants had been asked twice to produce their relevant emails. Judge Kemp noted that rather than relying on “50 different employees to search emails in some unspecified manner,” which likely resulted in searches carried out with different protocols—such as by sender, by recipient, by keyword, or by date, for example—the defendants could have instituted a controlled search that would have produce more comprehensive discovery responses.

Judge Kemp additionally noted that from personal observation and the “tenor of telephone conferences and written submissions,” it appears that there are issues in the relationship between counsel for the plaintiffs and counsel for the defense. It was recommended that counsel cooperate for the remainder of the discovery ahead, and for the potentially lengthy trial, in the interests of ensuring that processes are “cost-efficient for their own clients and for the Court.”

The defendants were directed to answer the plaintiffs’ interrogatories concerning ‘discovery about discovery,’ and also left with a standing order that presumes any issues remaining after the document retrieval process is satisfactorily described, will be addressed cooperatively by counsel.

So, what do you think? Should parties be permitted to compel answers concerning method of discovery in all cases when those methods are unclear? Should there be special exceptions, either for or against discovery about discovery? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Discovery of Privileged Documents and Form of Production Addressed in Ruling on Second Motion to Compel – eDiscovery Case Law
 

In RPM Pizza LLC v. Argonaut Great Central Insurance Co., No. 10-684-BAJ-SCR, 2013 U.S. Dist. (M.D. La. Nov. 15, 2013), Louisiana Magistrate Judge Stephen C. Riedlinger delivered a partial ruling on a Second Motion to Compel the Production of Documents and Interrogatory Responses filed by the plaintiffs, who filed the motion in effect to renew their previous motion to compel, to which the defendant did not respond in a timely manner. Largely due to the delayed response, Judge Reidlinger ruled in favor of the plaintiff on several aspects of the motion.

In both the original and second motion to compel, the plaintiff alleged that the defendant’s production of discovery documents was deficient in multiple ways. First, the defendant produced 555 documents in response to discovery requests, of which 520 had already been provided to the plaintiff. Second, the documents produced did not provide answers to the interrogatories posed in discovery, and those which answered three of the 17 Requests for Production were highly unlikely to include all of the documents that were responsive to those requests. Finally, the plaintiff objected to the quality and format of the production—specifically, that the defendant had provided PDF files without metadata instead of TIFF with metadata.

The defendant not only opposed the motion, but also sought an award for expenses and fees they had incurred to oppose. The defendant stated that the motion should be denied, since the response was supplemented voluntarily upon the Second Motion to Compel, and a privilege log was produced.

The plaintiff contested the form of production for the privilege log, asserting that it did not contain enough detail to determine whether the documents were in fact privileged. The supplied log indicated that the plaintiff had withheld documents that were “‘NRC’ (not reasonably calculated), or ‘CPTS’ (confidential, proprietary and/or trade secret)” rather than privileged. Furthermore, the plaintiff asserted, the defendant’s statement that it would rely on an advice-of-counsel defense for discovery responses meant that the defendant had waived the attorney-client privilege.

While the defendant acknowledged that its privilege log lacked the required detail, it asserted that there was insufficient time to prepare, since it had reviewed “thousands of documents on short notice” in response to the plaintiff’s “unreasonably broad discovery requests.” Furthermore, the defendant claimed that it experienced “unexpected technical issues with electronic discovery” and requested a time extension for completing the privilege log.

In his decision, Judge Reidlinger agreed that the defendant had waived the claim of privilege over withheld documents, and found the defendant’s justification for the deficiencies and delays in producing the privilege log to be “vague, unsupported, and unpersuasive.” Additionally, Judge Reidlinger dismissed the excuses of tight deadlines and time constraints because, according to the record, “the cause of Argonaut having to review and produce thousands of documents on short notice and in a short period of time is Argonaut’s own failure to take prompt, appropriate actions when it was served with the plaintiff’s discovery requests on April 19, 2013.” The 555 pages of mostly duplicate documents were not produced by the defendant until six weeks after the plaintiff’s first motion to compel was filed.

Finally, the defendant’s general objection to document production in a “particular format or matter” was overruled, due to the plaintiff’s right under Federal Rule of Civil Procedure 34(b)(2)(E) to specify a form of production without the need to prove why a specific form was necessary—and due to the defendant’s failure to specifically object to the form of production until its delayed supplemental response. The defendant was ordered to produce the documents in the requested format, with metadata.

So, what do you think? Should a delayed response result in stricter enforcement of discovery responses? How much does document format matter? 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Quinn Emanuel Sanctioned for Inadvertent Disclosure, Samsung Escapes Sanction – eDiscovery Case Law

California Magistrate Judge Paul S. Grewal has now handed down an order on motions for sanctions against Samsung and the Quinn Emanuel law firm in the never-ending Apple v. Samsung litigation for the inadvertent disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

After discovery on the matter, Judge Grewal ruled as follows:

“Quinn Emanuel shall reimburse Apple, Nokia, and their counsel for any and all costs and fees incurred in litigating this motion and the discovery associated with it, as required by Rule 37 in the absence of ‘substantial justification’ or other showing of ‘harmlessness,’ neither of which the court finds here. That expense, in addition to the public findings of wrongdoing, is, in the court’s opinion, sufficient both to remedy Apple and Nokia’s harm and to discourage similar conduct in the future.”

Basically, Judge Grewal determined that “what began as a chorus of loud and certain accusations had died down to aggressive suppositions and inferences, and without anything more, Quinn Emanuel and Samsung cannot reasonably be subject to more punitive sanctions”.

Apple and Nokia had proposed a number of “creative” sanctions that Quinn and Samsung ranging from an injunction against Samsung in the case to a ten-year ban from representing any party adverse to Nokia – suggestions that Judge Grewal referred to as “ludicrously overbroad”.

For a link to the order, click here.

For our previous coverage of the case, click here, here, here, here and here.

So, what do you think?  Did Samsung and Quinn Emanuel get off lightly?  Or was the sanction 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Federal Circuit Reduces Award for Defendants Based on Costs of Digital Copies – eDiscovery Case Law

In Phillip M. Adams & Associates, L.L.C. v. Sony Electronics Inc., No. 1:05-CV-64 TS, 2013 U.S. Dist. LEXIS 160728 (D. Utah Nov. 7, 2013), a Federal Circuit court limited awards for the defendant with regard to the costs of digital copies, in a decision that followed the reasoning of the Third Circuit and Fourth Circuit in prior cases.

The initial case and jury trial was brought by plaintiff Phillip M. Adams & Associates, with allegations of patent infringement and trade secret misappropriation against Sony Electronics. In this Federal Circuit case brought on appeal, the court reversed an adverse interference sanction against the defendant imposed by the district court during the jury trial. However, the Federal Circuit upheld the grant of summary judgment in favor of the plaintiff.

After the decision to reverse the sanction, the Federal Circuit turned to the defendants’ request to seek their court costs in the case. The Clerk of Courts taxed costs in favor of the defendants in the amount of $168,812.39, a decision that resulted in motions filed by both the plaintiffs and defendants—the plaintiffs seeking to deny the request, and the defendants looking for allowance of additional costs.

The plaintiffs contested the award for several reasons, one being that the defendants had destroyed evidence, as found by the district court and upheld by the Federal Circuit. However, the court did not grant the plaintiffs’ request for dismissal due to the finding that the district court’s adverse interference sanction had been improper, and further that the plaintiffs “failed to present substantial evidence of infringement within the United States after May 3, 2001.” Additionally, the court stated that with the improper sanction, “it seems to follow that sanctions in the form of reduced or eliminated costs would also not be proper.”

However, the reward was reduced by 25%, due in part to the admittance of the defendant that some costs did not relate to a particular claim for which the two parties had previously agreed to bear their own costs.

The Federal Circuit then addressed the additional costs requested by the defendants totaling more than $60,000 for exemplification and for making copies. The breakdown of costs cited by the defendant included “producing TIFF images, OCR, bates labeling, and copying on CDs and DVDs.” Ultimately, the court granted in part and denied in part the request, basing the decision on prior case outcomes for the Third Circuit in Race Tires America, Inc. v. Hoosier Racing Tire Corp. and the Fourth Circuit in The Country Vintner of North Carolina, LLC v. E & J. Gallo Winery, Inc.

Despite the defendants’ argument that “all activities related to the production of ESI [electronically stored information ] should be taxable,” the court rejected approximately half of the costs sought, reasoning that “the process employed in the pre-digital era to produce documents in complex litigation” excluded those steps from taxation that the defendant sought to recover. Therefore, the defendant was allowed only the costs of nearly $30,000 for TIFF imaging and approximately $2,400 for copying to CDs and DVDs. The remaining requests were rejected.

So, what do you think? Should the costs related to digital copying be taxable by courts? Are awards in the production of ESI too generous? 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily 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 Grants Motion to Compel Defendant to Produce Documents as Requested and Chronicle Approach – eDiscovery Case Law
 

In Home Instead, Inc. v. Florance, No. 8:12CV264, 2013 U.S. Dist. (D. Neb. Nov. 8, 2013), following a motion to compel discovery on behalf of the plaintiff, Nebraska Magistrate Judge Cheryl R. Zwart ordered the defendant to produce documents requested during discovery and required the defendant to produce a sworn affidavit chronicling the methods used in their search for production of the discovery documents.

During this dispute over a franchise agreement, the parties were ordered to meet for a discussion of the discovery matter but failed to resolve any issues.  The plaintiff alleged the documents were not produced due to the defendant’s destruction, deleting, selling, shredding, or otherwise discarding of the documents.  The plaintiff also alleged that their attempts at searching electronically for documents fell short of a good faith effort and was therefore inadequate.  According to testimony by both David and Michelle Florance, the defendants, there was not a thorough search of email accounts for responsive documents.  This “broad” search did not include reviewing client paper files, employee files, caregiver logs, or client care plans or service contracts. 

Additionally, the defendants were unable to explain what efforts their employees used to find information.  Furthermore, their electronic search merely consisted of looking for the words “Home Instead”, and they subsequently deleted any documents found.  The defendants did not retain a copy or forward the document to counsel.  Judge Zwart agreed with the plaintiff and felt they were entitled to a sworn affidavit, “not only to determine the extent of the defendants’ search for production of responsive discovery”, but to also assess the defendant’s culpability in failing to preserve evidence used in litigation.

As to the manner of production, the plaintiff alleged the defendants provided “one large PDF that contains no metadata, no indication of parent-document relationship, on no indication as to the beginning and end of each document.”  The motion requested Judge Zwart to compel the defendants to produce their discovery responses in compliance with the Federal Rules.

According to the parties’ Rule 26(f) report, any document maintained in electronic form during a party’s normal course of business will also be produced in electronic form as “searchable TIFF images with load files to allow images to be loaded into a document production database.”  Those documents not produced in electronic form in a party’s ordinary course of business and not scanned into electronic form prior to the date of production are allowed to be produced in the manner in which they are maintained.  In addition, Rule 34(b)(2)(e) of the FRCP states 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.”

The defendant’s deposition testimony showed that while the defendants located electronic documents, they did not produce them in an electronic format as required under their agreement with the Plaintiff or the federal rules.  They also failed to organize and label any documents that may have existed in their usual course of business, a requirement under the Federal Rules.  Judge Zwart agreed with the plaintiff, stating that the defendants “failed to organize and label [the documents] as required under the Federal Rules,” and granted the plaintiff’s motion to compel.

So, what do you think?  Should the motion to compel 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

LitigationWorld Quick Start Guide to Mastering eDiscovery – eDiscovery Best Practices

With the Super Bowl coming up in a few days, it seems appropriate to relay a story about the man for whom the trophy to the winning team is named…

During his first year with the Green Bay Packers, legendary coach Vince Lombardi pulled his team together for a stern lecture after his team lost five games in a row.  He scolded them saying “You forgot every basic fundamental about this game.  We are going to have to start all over again, from scratch!”  Then, he picked up a football and said “Gentlemen, the basics.  This is a football!”  To which one of his players responded “Hold on a minute, Coach!  You’re going too fast!”

Sometimes, it seems like we’re “going too fast” when trying to explain eDiscovery to attorneys.  At least it seems that there are a lot of attorneys that don’t understand the simplest basics.  Now, a brand new guide is hoping to help change that.  Earlier this month, TechnoLawyer published LitigationWorld Quick Start Guide to Mastering Ediscovery, written by Tom O’Connor, who is a nationally recognized consultant in legal technology (and past thought leader interviewee on this blog).

After illustrating just how big the knowledge gap can be, how a lack of eDiscovery knowledge can prove disastrous (via the opinion In re Fannie Mae Securities (D.C. Cir. Jan. 6, 2009)) and the ethical duties for lawyers to understand technology, Tom’s Quick Start Guide dives into the “This is a football!” basics of how computers work and why you should care.  It discusses the bits and bytes (literally) of how computers store data that is discoverable and how “deleted” electronically stored information (ESI) is actually often recoverable.  Remember Oliver North and the Iran-Contra affair?  His deleted email was recovered and he was convicted of perjury…way back in 1989.  These are not groundbreaking new concepts, but they are important if you’re going to be responsible for handling data in discovery.

With some basic technical concepts covered, the guide covers the evolution of eDiscovery with the December 2006 amendments to the Federal Rules of Civil Procedure (FRCP), similar amendments adopted by many of the states and, of course, the groundbreaking Zubulake v. UBS Warburg case.  To tie back to the computer fundamentals, Tom asks and answers an important question: “How can you apply current and future rules to ensure your clients preserve all potentially relevant ESI unless you know how it’s stored? You can’t so that’s why you need to understand the basic technological underpinnings of data storage.”

Tom then goes on to cover various forms of production and the advantages and disadvantages of each – his reference to TIFF images as “petrified” is the best adjective I’ve heard yet to describe them – and covers other basic (but important) concepts, such as collection, processing and load files.  He concludes by discussing the importance of learning to “speak geek” about storage technologies and sets the path for you to travel to “true eDiscovery mastery”.

The document is relatively short and sweet, at just 17 pages after the title page and is an easy read, yet contains numerous links to outside resources for those who want to dive deeper.  He references a number of resources and courses available from a variety of eDiscovery pioneers, including Ralph Losey, Craig Ball and Michael Arkfeld.  There is no shortage of resources in this guide for those who want to learn more about eDiscovery.

The free guide is available for download at TechnoLawyer here (you have to be a member of TechnoLawyer to get it, but membership is free, which also gives you access to numerous other resources available on the site).

As Tom notes via a quote from Craig Ball (from this very blog, no less), “Understanding information technology is a necessity for litigators. That’s where the evidence lives.”  As Tom notes, “We all must adapt to this new paradigm of working in the digital world.”  Let’s hope that adaptation occurs sooner rather than later.

So, what do you think?  Do you understand the basic technical concepts you need to as a lawyer?   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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2013 eDiscovery Year in Review: eDiscovery Case Law, Part 4

As we noted on Thursday, Friday and yesterday, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to proportionality and the first half of the cases related to sanctions (yes, there were that many).  Today, here are the rest of the cases related to sanctions.

We grouped those cases into common subject themes and have been reviewing them over the previous three posts.  Today is the last post in the series.  Perhaps you missed some of these cases?  Now is your chance to catch up!

SANCTIONS

Of the 62 cases we covered this past year, over 40% of them (26 total cases) related to sanctions, either due to spoliation issues or inadequate or untimely productions, many of which were granted, but some were denied.  Oh, and, apparently, having your case dismissed isn’t the worst that can happen to you for spoliation of data.  Here are the remaining 13 cases:

Judge Rules Against Spoliation Sanctions when the Evidence Doesn’t Support the Case.  In Cottle-Banks v. Cox Commc’ns, Inc., California District Judge Gonzalo P. Curiel denied the plaintiff’s motion for spolation sanctions because the plaintiff was unable to show that deleted recordings of customer calls would have likely been relevant and supportive of her claim.

Spoliation of Data Can Get You Sent Up the River.  Sometimes, eDiscovery can literally be a fishing expedition. I got a kick out of Ralph Losey’s article on E-Discovery Law Today (Fishing Expedition Discovers Laptop Cast into Indian River) where the defendant employee in a RICO case in Simon Property Group, Inc. v. Lauria threw her laptop into a river. Needless to say, given the intentional spoliation of evidence, the court imposed struck all of the defenses raised by the defendant and scheduled the case for trial on the issue of damages.

Adverse Inference Sanction for Defendant who Failed to Stop Automatic Deletion.  Remember the adverse inference instructions in the Zubulake v. UBS Warburg and Apple v. Samsung cases? This case has characteristics of both of those. In Pillay v. Millard Refrigerated Servs., Inc., Illinois District Judge Joan H. Lefkow granted the plaintiff’s motion for an adverse inference jury instruction due to the defendant’s failure to stop automatic deletion of employee productivity tracking data used as a reason for terminating a disabled employee.

Appellate Court Upholds District Court Discretion for Determining the Strength of Adverse Inference Sanction.  In Flagg v. City of Detroit, the Sixth Circuit held that the district court did not abuse its discretion in issuing a permissive rather than mandatory adverse inference instruction for the defendant’s deletion of emails, noting that the district court has discretion in determining the strength of the inference to be applied.

eDiscovery Vendors Are Not Immune to eDiscovery Sanctions.  In Nuance Communications Inc. v. Abbyy Software House et al., California District Judge Jeffrey S. White refused Wednesday to dismiss Nuance Communications Inc.’s patent infringement suit against Lexmark International Inc. and Abbyy Software House, and awarded reimbursement of plaintiff’s attorneys’ fees and costs in excess of $130,000 as part of discovery abuse sanctions resulting from the late production of relevant documents from Abbyy.

Hard Drive Turned Over to Criminal Defendant – Eight Years Later.  If you think discovery violations by the other side can cause you problems, imagine being this guy. As reported by WRAL.com in Durham, North Carolina, the defense in State of North Carolina v. Raven S. Abaroa filed a Motion to Dismiss the Case for Discovery Violations after the state produced a forensic image of a hard drive (in the middle of trial) that had been locked away in the Durham Police Department for eight years.

When Lawyers Get Sued, They Have Preservation Obligations Too.  In Distefano v. Law Offices of Barbara H. Katsos, PC., New York Magistrate Judge A. Kathleen Tomlinson found that the defendant (an attorney who was being sued by the plaintiff she previously represented for breach of contract, negligence/legal malpractice, and breach of fiduciary duty/duty of care) had a duty to preserve information from a discarded computer and ordered a hearing for the defendant to address a number of questions to determine the potential relevance of the destroyed data and whether the defendant had a sufficiently culpable state of mind.

Plaintiff Receives Adverse Inference Sanction for Deleting Facebook Profile.  In Gatto v. United Air Lines, Inc., New Jersey Magistrate Judge Steven C. Mannion issued an adverse inference sanction against the plaintiff for failing to preserve data due to the fact that he either, deactivated his Facebook account and allowed the account to be automatically deleted after fourteen days, or that he deleted the account outright. Judge Mannion denied the defendant’s request for attorney’s fees and costs for “the time and effort it was forced to expend in an effort to obtain discovery”.

The Hammer Comes Down on Losing Plaintiff for Spoliation of Data.  Apparently, having your case dismissed isn’t the worst that can happen to you for egregious spoliation of data. You can also be ordered to pay the winning party over $200,000 in fees and costs for the case. In Taylor v. Mitre Corp., Virginia District Judge Liam O’Grady partially granted the prevailing defendant’s motion for fees and costs after the court dismissed the case due to the plaintiff’s spoliation of evidence.

Defendants Sanctioned, Sort Of, for Failure to Preserve Text Messages.  In Christou v. Beatport, LLC, Colorado District Judge R. Brooke Jackson ruled that the plaintiffs could introduce evidence at trial to show the defendants failure to preserve text messages after the key defendant’s iPhone was lost. However, the judge also ruled that the defendants could present “evidence in explanation…and argue that no adverse inference should be drawn”.

JP Morgan Chase Sanctioned for a Failure to Preserve Skill Codes.  In EEOC v. JP Morgan Chase Bank, District Judge Gregory L. Frost granted the EEOC’s motion for sanctions for spoliation of data, entitling the plaintiff to “a permissive adverse jury instruction related to the spoliation if this litigation proceeds to a jury trial”, and denied the defendant’s motion for summary judgment.

EEOC Sanctioned for Failing to Comply with Motion to Compel Production.  As noted previously in this blog, the Equal Employment Opportunity Commission (EEOC) was ordered to turn over social media information related to a class action case alleging sexual harassment and retaliation. Apparently, they were less than cooperative in complying with that order. In EEOC v. Original Honeybaked Ham Co. of Georgia, Colorado Magistrate Judge Michael E. Hegarty sanctioned the EEOC for failing to provide discovery of social media content.

Blind Reliance on Vendor for Discovery Results in Sanctions.  In Peerless Indus., Inc. v. Crimson AV, LLC, Illinois Magistrate Judge Susan E. Cox sanctioned the defendant for a “hands off approach” to discovery by relying on a vendor for conducting the discovery from a closely related non-party to the suit.

That’s our eDiscovery case review for 2013.  Let’s do it again next year!

So, what do you think?  Did you miss any of these?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2013 eDiscovery Year in Review: eDiscovery Case Law, Part 3

As we noted on Thursday and Friday, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Friday, we looked back at cases related to production format disputes, search disputes and technology assisted review.  Today, let’s take a look back at cases related to proportionality and the first half of the cases related to sanctions (yes, there were that many).

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

PROPORTIONALITY / COOPERATION

There were certainly at least a handful of cases where proportionality of eDiscovery and cooperation between parties was at issue, including the most viewed post in the history of this blog.  Here are three such cases:

Is a Blended Document Review Rate of $466 Per Hour Excessive?  Remember when we raised the question as to whether it is time to ditch the per hour model for document review? One of the cases we highlighted for perceived overbilling was ruled upon last month. In the case In re Citigroup Inc. Securities Litigation, New York District Judge Sidney H. Stein rejected as unreasonable the plaintiffs’ lead counsel’s proffered blended rate of more than $400 for contract attorneys—more than the blended rate charged for associate attorneys—most of whom were tasked with routine document review work.

Court Rejects Defendants’ Claim of Undue Burden in ERISA Case.  In the case In re Coventry Healthcare, Inc.: ERISA Litigation, Maryland Magistrate Judge Jillyn K. Schulze rejected the defendants’ claim of undue burden where they failed to suggest alternatives to using the plaintiffs’ search terms and where they could enter a clawback order to eliminate the cost of reviewing the data for responsiveness and privilege.

Court Agrees with Defendant that Preserving 5 Terabytes of Data is Enough.  In United States ex rel. King v. Solvay, S.A., Texas District Judge Gray Miller granted the defendant’s request for a protective order where the plaintiffs only offered generalized, unsupported claims to support their request to extend and expand discovery.

SANCTIONS

Yes, once again, the topic with the largest number of case law decisions related to eDiscovery is those decisions related to sanctions.  Of the 62 cases we covered this past year, over 40% of them (26 total cases) related to sanctions, either due to spoliation issues or inadequate or untimely productions, many of which were granted, but some were denied.  Here are the first 13 cases:

Company Should Have Preserved Personal eMails, But No Sanctions (Yet).  In Puerto Rico Telephone Co. v. San Juan Cable LLC, Puerto Rico Magistrate Judge Bruce J. McGiverin found that “plaintiff has proffered sufficient evidence to establish that [the defendant] OneLink failed to preserve relevant emails within its control”, but denied the plaintiff’s request for sanctions at this time because of the “absence of bad faith” on the defendant’s part and the plaintiff’s failure to demonstrate prejudice.

The Ubiquitous Apple Samsung Case and “Patentgate”.  When something gets the “gate” suffix added to it, that’s not a good thing. It’s hard to believe that a case can get more intense than when a billion dollar verdict is awarded (later reduced to a measly $599 million, then increased back up to $930 million), but the Apple v. Samsung case seems to only be getting more intense, due to the disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

Duty to Preserve Triggered When Litigation is “Imminent”, Not “Reasonably Foreseeable”.  In the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, Chief District Judge David R. Herndon ruled that at least in the Seventh Circuit, the duty to preserve is triggered not when litigation is “reasonably foreseeable” but when “a litigant knew or should have known that litigation was imminent.”

Leaving Your Hard Drives in a Rental House is Negligent, Court Rules.  In Net-Com Services, Inc. v. Eupen Cable USA, Inc., the plaintiff’s destruction of evidence was negligent where its principal failed to take steps to preserve evidence he had stored in a home he rented to nonaffiliated lessees.

Despite Missing and Scrambled Hard Drives, Court Denies Plaintiff’s Request for Sanctions. In Anderson v. Sullivan, a Pennsylvania court found “that no sanctions are warranted” despite the disappearance of one hard drive, “scrambling” of another hard drive and failure to produce several e-mails because the evidence was not relevant to the underlying claims and because there was no showing the defendants intentionally destroyed evidence.

Court Awards Sanctions, But Declines to Order Defendants to Retain an eDiscovery Vendor – Yet.  In Logtale, Ltd. v. IKOR, Inc., California Magistrate Judge Donna M. Ryu granted the plaintiff’s motion to compel responses to discovery and awarded partial attorney’s fees as a result of defendants’ conduct. The judge did not grant the plaintiff’s request to order Defendants to retain an eDiscovery vendor to conduct a thorough and adequate search for responsive electronic documents, but did note that the court would do so “if there are continuing problems with their document productions”.

Imagine if the Zubulake Case Turned Out Like This.  You’ve got an employee suing her ex-employer for discrimination, hostile work environment and being forced to resign. During discovery, it was determined that a key email was deleted due to the employer’s routine auto-delete policy, so the plaintiff filed a motion for sanctions. Sound familiar? Yep. Was her motion granted? Nope.

Scheindlin Reverses Magistrate Judge Ruling, Orders Sanction for Spoliation of Data.  If you’re hoping to get away with failing to preserve data in eDiscovery, you might want to think again if your case appears in the docket for the Southern District of New York with Judge Shira Scheindlin presiding.

Permissive Adverse Inference Instruction Upheld on Appeal.  In Mali v. Federal Insurance Co., the Second Circuit explained the distinctions between two types of adverse inference instructions: a sanction for misconduct versus an explanatory instruction that details the jury’s fact-finding abilities. Because the lower court opted to give a permissive adverse inference instruction, which is not a punishment, the court did not err by not requiring the defendant to show that the plaintiffs acted with a culpable state of mind.

Default Judgment Sanction Upheld on Appeal.  In Stooksbury v. Ross, the Sixth Circuit upheld the entry of default judgment as a sanction against defendants that repeatedly failed to comply with discovery obligations, including producing a “document dump” of tens of thousands of pages of nonresponsive information that prejudiced the plaintiffs.

Spoliation Sanctions Can Apply to Audio Files Too.  In Hart v. Dillon Cos., Colorado Magistrate Judge David L. West granted the plaintiff’s Motion for Sanctions for Spoliation of Evidence for failing to preserve a tape recorded interview with the plaintiff and set a hearing and oral argument as to what sanctions should be imposed for October.

Printed Copies of Documents Not Enough, Spoliation Sanctions Upheld for Discarding Computer.  On May 30, the Appellate Division of the Supreme Court of New York, First Department upheld a spoliation sanction against a plaintiff that failed to preserve electronic files and discarded his computer containing those files.

Appellate Court Denies Sanctions for Routine Deletion of Text Messages.  In PTSI, Inc. v. Haley, the appellate court denied a motion for spoliation sanctions where the defendants routinely deleted text messages and other data to “clean up” their personal electronic devices: the volume of messages and limited amount of phone storage made it difficult to retain all data and still use the phone for messaging.

Tune in tomorrow for the remaining thirteen sanctions cases in 2013!

So, what do you think?  Did you miss any of these?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.