Analysis
2016 eDiscovery Case Law Year in Review, Part 3
As we noted yesterday and Monday, eDiscovery Daily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases! Yesterday, we looked back at cases related to cooperation, disputes about discovery, eDiscovery cost reimbursement, form of production disputes, privilege disputes and (once again) the ubiquitous Apple v. Samsung case. Today, let’s take a look back at cases related to social media discovery, technology assisted review and the first part of the cases relating to sanctions and spoliation.
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!
But first, if you want to learn more about what every attorney should know about eDiscovery in 2017, click here.
SOCIAL MEDIA DISCOVERY
In addition to our usual cases where defendants want to discover social media data of the plaintiffs suing them, we have two heavyweight companies that wanted to mine for prospective jurors’ social media information (until the judge stepped in, that is). Here are three cases related to discovery of social media data:
If Google and Oracle are Going to Mine for Jurors’ Social Media Info, They Have to Inform the Court: When the big guys sue each other, the cases last forever. We’ve been covering developments in the Apple v. Samsung case since July 2012, and that case is still going on. Another case that we’ve covered a long time ago (way back in November 2011) is Oracle Corp. v. Google Inc. and that case is still going on too. In that case, with a trial approaching, the judge has told lawyers to disclose Internet and social media research about jurors to the court or agree not to conduct it.
Court Orders Plaintiff to Perform a “Download Your Info” From Facebook: In Rhone v. Schneider Nat’l Carriers, Inc., Missouri Magistrate Judge Noelle C. Collins ordered the plaintiff to disclose a complete list of her social media accounts to the defendant and also provide a “Download Your Info” report from her Facebook account from June 2, 2014 to the present within fourteen days and ordered the defendant to disclose to the plaintiff any and all posts, photos or other media from the report it intends to use in support of its defense.
Court Compels Plaintiff to Provide Social Media Account and Activity Data: In Waters v. Union Pacific Railroad Co., Kansas Magistrate Judge Kenneth G. Gale granted the defendant’s motion to compel the plaintiff to produce account information associated with his social media accounts as well as postings from the dates he missed work in conjunction with his injury claims against the defendant. Judge Gale also granted most of the components of the plaintiff’s motion to compel against the defendant for various discovery requests.
TECHNOLOGY ASSISTED REVIEW
Quite an active year with regard to cases involving technology assisted review (TAR), with the first English case approving the use of TAR and the judge in the first ever TAR case refusing to order a party to use TAR among the cases. Here are five cases related to TAR:
Predictive Coding is Officially Approved in First English Case: Last month, in Pyrrho Investments Ltd v MWB Property Ltd, citing the landmark DaSilva Moore case (among other authorities), Master Matthews approved the use of predictive coding, due to the “enormous” expense of manually searching through the three million electronic documents associated with the case. This is the believed to be the first time an English court has approved the use of predictive coding.
Cooperation in Predictive Coding Exercise Fails to Avoid Disputed Production: In Dynamo Holdings v. Commissioner of Internal Revenue, Texas Tax Court Judge Ronald Buch ruled denied the respondent’s Motion to Compel Production of Documents Containing Certain Terms, finding that there is “no question that petitioners satisfied our Rules when they responded using predictive coding”.
Judge Peck Refuses to Order Defendant to Use Technology Assisted Review: In Hyles v. New York City, New York Magistrate Judge Andrew J. Peck, indicating that the key issue before the court in the discovery dispute between parties was whether (at the plaintiff’s request) the defendants can be forced to use technology assisted review, refused to force the defendant to do so, stating “The short answer is a decisive ‘NO.’”
English Court Rules that Respondents Can Use Predictive Coding in Contested Case: In Brown v BCA Trading, et. al., Mr. Registrar Jones ruled that, with “nothing, as yet, to suggest that predictive coding will not be able to identify the documents which would otherwise be identified through, for example, keyword search”, “predictive coding must be the way forward” in this dispute between parties as to whether the Respondents could use predictive coding to respond to eDisclosure requests.
Defendant Not Required to Use Predictive Coding by Court: In the case In re Viagra Products Liability Litigation, California Magistrate Judge Sallie Kim, noting that other courts had declined to force a party to use predictive coding, denied the plaintiff’s motion to force the defendant to use predictive coding instead of its preferred approach using search terms.
SPOLIATION / SANCTIONS
Of course, once again, the topic with the largest number of case law decisions related to eDiscovery are those related to sanctions and spoliation issues (24 out of 62 total cases for 38.7% of all cases covered). Are there really more of these cases or do I just find them more interesting? You decide. Anyway, here are the first eight cases, including one where the sanction was reversed after the adoption of Rule 37(e):
Court Orders Sanctions Against Defendant for Spoliation of Emails and Other Documents: In Ocwen Loan Servicing, LLC v. Ohio Public Employees Retirement System, the Court, determining that the defendant had spoliated data, found that the plaintiff had not demonstrated sufficient facts to warrant striking the defendant’s affirmative defenses, but opted to order an adverse inference instruction and also ordered the defendant to pay the plaintiff’s attorneys’ fees and costs in preparing the instant motion for sanctions.
Court Gives Plaintiff 21.5 Million Reasons for Not Spoliating Emails: In Hausman v. Holland America Line-U.S.A., et al., Washington District Judge Barbara Jacobs Rothstein vacated a $21.5 million verdict awarded to a man injured by a closing cruise-ship door in 2011 and ordered a new trial, after the plaintiff’s former assistant alleged that he deleted emails that could hurt his case.
Appeals Court Upholds Terminating Sanctions For Wipe of Cell Phone: In Woodell v. Bernstein, et. al., the California Court of Appeals affirmed the judgment of the trial court, which imposed terminating sanctions against the plaintiff for spoliation of evidence and dismissed his lawsuit with prejudice after the plaintiff had wiped his cell phone, which was key to the case.
Changes in Federal Rules Result in Reversal of Adverse Inference Sanction: In Nuvasive, Inc. v. Madsen Med. Inc., California Chief District Judge Barry Ted Moskowitz, considering new standards imposed under recently amended Federal Rule of Civil Procedure 37(e), granted the plaintiff’s motion for an order vacating the Court’s previous order granting (in part) the defendants’ Motion for Sanctions for Spoliation of Evidence.
Alteration of Domain in Produced Emails Leads to Sanctions for Plaintiffs: In CAT3, LLC v. Black Lineage, Inc., New York Magistrate Judge James C. Francis IV, ruling that emails produced by the plaintiffs were “intentionally altered”, ordered that the plaintiffs would be precluded from relying on their version of those emails to demonstrate their case and that the plaintiffs would bear the “costs, including reasonable attorney’s fees, incurred by the defendants in establishing the plaintiffs’ misconduct and in securing relief.”
Our Nation’s Largest City is Not Immune to eDiscovery Sanctions: In Stinson v. City of New York, New York District Judge Robert W. Sweet granted in part and denied in part the plaintiffs’ motion seeking sanctions for spoliation of evidence against the defendants for failure to issue a litigation hold, opting for a permissive inference rather than a mandatory adverse inference sanction against the defendants.
Court Rules Plaintiff’s Duty to Preserve Did Not Extend to Employee’s Internet History: In Marten Transport, Ltd. V. Plattform Advertising, Inc., Kansas Magistrate Judge Teresa J. James denied the defendant’s Motion for Spoliation Sanctions, ruling that, although the plaintiff had a duty to preserve relevant ESI as of Fall 2013, that duty to preserve did not extend to the internet history of one of its employees until June 2015, and by then the internet history was lost.
Defendants Claim of Lightning Strike and Power Surge Doesn’t Save Them from Sanctions: In InternMatch, Inc. v. Nxtbigthing, LLC, et. al., California District Judge Jon S. Tigar, finding that the defendants “consciously disregarded their obligations to preserve relevant evidence” when they discarded various electronic devices after experiencing an alleged power surge without checking to see if they could recover any files from them, granting an adverse inference instruction sanction and plaintiff’s attorneys’ fees.
Tomorrow, we will cover the remaining cases related to sanctions and spoliation. Stay tuned!
Want to take a look at cases we covered the previous five years? Here they are:
- 2015: Part 1, Part 2, Part 3, Part 4
- 2014: Part 1, Part 2, Part 3, Part 4
- 2013: Part 1, Part 2, Part 3, Part 4
- 2012: Part 1, Part 2, Part 3, Part 4
- 2011: Part 1, Part 2, Part 3, Part 4
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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
The Importance of Early Data Assessment: eDiscovery Best Practices
Why do we have a picture of Santa Claus for an eDiscovery blog post about early data assessment? Read on.
In the Fall 2016 eDiscovery Business Confidence Survey conducted last month, over a third of all respondents cited Increasing Volumes of Data as expected to be most impactful to the business of eDiscovery over the next six months. With more and more data to manage, understanding what you have in that data as early as possible has become more important than ever as you attempt to plan the budget for your upcoming discovery efforts.
Knowing how much data you have in gigabytes (GB) or terabytes (TB) that may be subject to litigation isn’t enough to accurately estimate the number of files you have. As we’ve discussed before, the number of files in each gigabyte can vary widely.
Why is that important? The more files you have, the more files you potentially have to review. With review costs estimated to be between 70-80 percent of all eDiscovery costs, a lot more files to review can drive up eDiscovery costs significantly. Wouldn’t it be better to know early in the case how many files you have?
That’s where early data assessment comes in. The ability to assess your data early enables you to better estimate your eDiscovery costs, so that you can decide whether to settle or litigate and also so that you can plan resources if you do decide to litigate.
In addition to determining the number of files that you have, it’s also beneficial to determine the expanded size of your collection after processing (so that you can estimate costs for storing or hosting that collection) to determine how many different types of files you have and how many files and data volume is comprised by each file type. Also, whether any of the files are exception files, such as corrupt or password protected files. Those files can take a lot of time to address, adding costs to the eDiscovery process.
Want more? It’s also important to determine how many emails and attachments you have, how many domains those emails represent and also how many email conversations are encompassed with those emails. And, the timelines for your email collection, so you can identify potential gaps in your collection.
Early data assessment can provide all of that information to you at the outset of litigation.
Here’s the best news: it doesn’t have to cost anything to perform that early data assessment. CloudNine is offering free early data assessment reporting to provide your organization with valuable information to help shape its litigation strategy. Consider it an early holiday present this season! You’re welcome, and happy holidays!
I told you to read on, right? :o)
So, what do you think? Do you perform assessment of your data early in the litigation life cycle? 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 Forensic Examination of Key Custodian Computers: eDiscovery Case Law
In Davis v. Crescent Electric Company et. al., No. 12-5008 (D. S.D., Oct. 12, 2016), South Dakota District Judge Lawrence L. Piersol ruled that a non-disclosure agreement would sufficiently protect any and all confidential and/or privileged information of the defendant that may be uncovered during the forensic examination for key custodians and that the information being requested by the plaintiff was relevant and not overly broad.
Case Background
In this employment discrimination case, the plaintiff filed a Motion to Compel the defendant (her former employer) in August 2015 to produce Outlook PST files from the defendant’s server, from the plaintiff’s work computer and from the defendant’s Outlook archives to learn “how Julie Skinner/Stienstra had access to Lisa A. Davis’ email in order to print them.” The court granted the motion in April 2016, and in August 2016, the plaintiff requested that the defendant provide access to the key custodians’ computers for a forensic examination. The defendant refused, citing concerns that “unfettered investigation” on the computers “may provide access to confidential information and privileged communications, and it is beyond the scope of the Court’s Order and the relief requested.” That same day, counsel for the plaintiff suggested having the forensic examiner execute a non-disclosure agreement and further requested that the defendant’s internet technician contact the forensic examiner as soon as possible “so this matter can be resolved without further court intervention.”
The defendant’s technician provided only of the email data requested, indicating that was the only data he was told to provide and that any other email data would have to be requested from counsel. The plaintiff’s counsel did just that, but the defendant’s counsel refused, reiterating the position that the information was beyond the scope of the order and the data may contain confidential and privileged information. As a result, the plaintiff filed a supplemental Motion to Compel.
Judge’s Ruling
Referencing Rule 37(a)(3)(B)(iv), Judge Piersol noted that, ultimately “[c]ourts consider the prior efforts of the parties to resolve the dispute, the relevance of the information sought, and the limits imposed by Rule 26(b)(2)(C) when deciding whether to grant a motion to compel.” With regard to the plaintiff’s counsel effort to resolve the issue by offering to have the forensic examiner sign a non-disclosure agreement and the defense counsel’s refusal of that offer, Judge Piersol stated:
“First, CESCO does not explain how or why a non-disclosure agreement would not quell its fears of disclosure of confidential and/or privileged information. CESCO simply makes general claims concerning the disclosure of such information. Second, the computer that Davis seeks to examine is a business computer that is unlikely to contain any personal information. Therefore, without more of an explanation by CESCO as to what it seeks to protect and why it seeks to protect it, the Court finds that a non-disclosure agreement executed by Mr. Sevel will sufficiently protect any and all confidential and/or privileged information that may be uncovered during the forensic examination of Julie Stienstra/Julie Skinner’s computer and associated export logs.”
With regard to the relevance of the information sought, Judge Piersol noted that the plaintiff sought a forensic examination to determine the authenticity of a claimed fake email and that the plaintiff’s forensic examiner stated that “printed versions of emails, or email threads, cannot be considered to be forensically sound unless the original digital version can be examined for authenticity. In this situation, a review of the PST file containing the original emails and emails threads, with their associated metadata, is needed”. Finding also that the defendant’s claim that the plaintiff’s request was overly broad to be “without merit”, Judge Piersol granted the plaintiff’s Supplemental Motion for an Order to Compel with the plaintiff’s forensic examiner to execute a non-disclosure agreement prior to his examination.
So, what do you think? Should the forensic examination have been ordered? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Defendant Not Required to Use Predictive Coding by Court: eDiscovery Case Law
Regardless how the election turned out last night, eDiscovery case law marches on…
In the case In re Viagra Products Liability Litigation, 16-02691 (N.D. Cali., Oct. 14, 2016), California Magistrate Judge Sallie Kim, noting that other courts had declined to force a party to use predictive coding, denied the plaintiff’s motion to force the defendant to use predictive coding instead of its preferred approach using search terms.
Case Background
In this multi-district litigation (MDL) against drug company Pfizer regarding its highly popular drug Viagra and alleged correlations to incidences of melanoma, the plaintiffs urged the Court to order the defendant to use predictive coding with the plaintiffs’ input to identify the locations of relevant information and the responsive ESI from those locations. The plaintiffs argued that TAR and/or predictive coding is a more sophisticated tool than the traditional search term or search query approach, that using that suggested approach would save time and money for both sides and indicated that they wanted representatives from both parties to participate in process of creating and working with the search process in this iterative process.
The defendant offered stiff opposition to the plaintiff’s request (sorry, I couldn’t resist) proposing instead that it use search terms to identify potentially relevant documents. The defendant described its preferred methodology as an iterative process – though not the same iterative process as TAR and/or predictive coding – where the defendant tests search terms and validates them using rigorous sampling of potentially responsive documents, verifying that the search terms yield high rates of response. In the defendant’s proposed process, the parties would exchange lists of proposed search terms and the defendant would agree to run any search terms that appeared on both parties’ lists.
The defendant pointed out that the plaintiffs did not cite to any case law in support of their proposal to require the defendant, over its objection, to use TAR and/or predictive coding. At the hearing on the matter, the plaintiffs conceded that no court has ordered a party to engage in TAR and/or predictive coding over the objection of the party.
Judge’s Ruling
Adding to the plaintiff’s concession, Judge Kim noted that “[t]he few courts that have considered this issue have all declined to compel predictive coding”. Judge Kim cited Hyles v. New York City, stating:
“As the court reasoned in Hyles, the responding party is the one best situated to decide how to search for and produce ESI responsive to discovery requests. The responding party ‘can use the search method of its choice. If [the propounding party] later demonstrates deficiencies in the . . . production, the [responding party] may have to re-do its search. But that is not a basis for Court intervention at this stage of the case…[I]t is not up to the Court, or the requesting party . . ., to force the . . . responding party to use TAR when it prefers to use keyword searching. While [the propounding party] may well be correct that production using keywords may not be as complete as it would be if TAR were used . . ., the standard is not perfection, or using the ‘best’ tool . . ., but whether the search results are reasonable and proportional.”
In denying the plaintiffs’ motion, Judge Kim concluded: “The Court finds Hyles well-reasoned. Even if predictive coding were a more efficient and better method, which Pfizer disputes, it is not clear on what basis the Court could compel Pfizer to use a particular form of ESI, especially in the absence of any evidence that Pfizer’s preferred method would produce, or has produced, insufficient discovery responses.”
So, what do you think? Should a court ever require a party to use a particular method to search for and produce ESI? 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.