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Case Law

After Woman’s iPhone is Seized and She Sues, Homeland Security Agrees to Delete Her Data: eDiscovery Case Law

An American Muslim woman filed suit and asked a federal judge to compel border officials to erase data copied from her iPhone.  Now, she has settled her lawsuit with the government because federal authorities have now agreed to delete the seized data.

As discussed in Ars Technica (Feds took woman’s iPhone at border, she sued, now they agree to delete data, written by Cyrus Farivar), in the case Lazoja v. Nielsen, attorneys for the woman, Rejhane Lazoja, filed what’s called a Rule 41(g) Motion, otherwise known as a “Motion to Return Property.”  Normally, this rule is invoked for tangible items seized as part of a criminal investigation, not for digital data that can easily be copied, bit for bit. But here, the plaintiff, asked the judge to return data that she already had already received 90 days after the seizure when her iPhone was returned, fully intact.

Lazoja’s case has raised new questions about the state of the law with respect to warrantless border searches, particularly in the wake of two notable Supreme Court cases that have dealt with digital privacy in recent years, Carpenter v. United States (2018) and Riley v. California (2014).  The government claims that it has the authority to search and seize someone’s device without a warrant – otherwise needed in the interior of the country. Federal authorities rely on what’s known as the “border doctrine.” This is the controversial but standing legal idea that warrants are not required to conduct a search at the border. The theory has been generally recognized by courts, even in recent years.

In this case, however, Lazoja settled her lawsuit with the government after federal authorities agreed to delete the seized data.  So, the unusual approach worked in this case.

So, what do you think?  Should deletion of seized data be covered by a Rule 41(g) motion?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Defendants to Sample Disputed Documents to Help Settle Dispute: eDiscovery Case Law

In Updateme Inc. v. Axel Springer SE, No. 17-cv-05054-SI (LB) (N.D. Cal. Oct. 11, 2018), California Magistrate Judge Laurel Beeler ordered the defendants to review a random sample of unreviewed documents in dispute and produce any responsive documents reviewed (along with a privilege log, if applicable) and report on the number of documents and families reviewed and the rate of responsiveness within one week.

Case Background

In this case where the plaintiff, creator of a news-aggregator cell-phone app, claimed that the defendants “stole” their platform and released a copycat app, learned that the defendants used the code name “Ajax” to refer their product.  The defendants determined that there were 5,126 unique documents (including associated family members) within the previously collected ESI that hit on the term “Ajax”, but they had not reviewed those documents for responsiveness.  The plaintiff asked the court to order the defendants to review those documents and produce responsive documents within two weeks.

The defendants claimed that the term “Ajax” is a project name that they created to refer to the plaintiff’s threatened litigation, not the product itself and claimed that “a sampling of the `Ajax’ documents confirms that, in every responsive document, the term `Ajax’ was used to refer to the dispute itself.”  But, the plaintiff cited 93 produced documents generally and two documents in particular (which the defendants were attempting to clawback as privileged) that referred to their product.  However, the defendants also claimed that it would be unduly burdensome and expensive to review the “Ajax” documents at this stage of the litigation and also argued that the term “Ajax” was not included in the ESI Protocol that the parties agreed upon months ago and should not be added at this late stage.

Judge’s Ruling

Judge Beeler observed this: “Whether ‘Ajax’ refers to Updateme or only the defendants’ dispute with Updateme is in some sense a distinction without a difference. Either way, the search term ‘Ajax’ is likely to return documents that are responsive to Updateme’s request for “[a]ll communications . . . concerning Updateme or the updaemi® application[.]” Documents concerning the defendants’ dispute with Updateme are likely documents concerning Updateme.” 

Judge Beeler also noted that “even if ‘Ajax’ refers to the dispute, that does not mean that documents that contain ‘Ajax’ are necessarily more likely to be privileged or protected from disclosure”, using a hypothetical scenario where two non-lawyers might discuss the impact of the “Ajax” dispute on profits.  She concluded her analysis with this statement: “To the extent the defendants are suggesting that if ‘Ajax’ purportedly refers to their dispute with Updateme, ESI containing ‘Ajax’ should remain outside the scope of discovery, the court is not convinced.”

As a result, Judge Beeler ordered the defendants to “randomly select 10% of the unreviewed documents {in dispute}, review them (and their associated family members) for responsiveness, produce responsive documents (and a privilege log for any responsive documents that are withheld), and provide a chart listing the number of documents and families reviewed and the rate of responsiveness” within one week.  Judge Beeler stated that the parties should then meet and confer if they continued to have disputes regarding these documents.

So, what do you think?  Should random sampling be used more to settle proportionality disputes or should it be a last resort?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Rules on Dispute over Native File Format Production and Metadata: eDiscovery Case Law

In Metlife Inv’rs. USA Ins. Co. v. Lindsey, No. 2:16-CV-97 (N.D. Ind. Oct. 25, 2018), Indiana Magistrate Judge John E. Martin granted the motion of the defendants/counter plaintiffs (defendants) to compel the plaintiff/counter-defendant (plaintiff) to produce all responsive documents in the form in which they are maintained in the usual course of business (i.e., native files with metadata) and also ordered the defendants to file an itemization of costs and fees, including attorney’s fees, incurred in making the Motion to Compel.

Case Background

In this case where the plaintiff sought rescission of a life insurance policy issued to one of the defendants based on her alleged misrepresentations during the application process.  Throughout written discovery, the plaintiff generally produced documents in non-searchable PDF format, which it claimed is the “most usable format” appropriate for the information. The defendants repeatedly objected, arguing that the plaintiff was obligated to produce the documents as they are maintained in the normal course of business, i.e., in their “native” format.

The defendants identified several electronic platforms in which the plaintiff kept its documents in the usual course of business, but the plaintiff indicated that the additional data that the defendants would receive from production in native format was irrelevant, and claimed that it was not obliged to produce it, leading to the defendants’ motion.

Judge’s Ruling

Noting that “MetLife concedes that the method in which it produced the documents is not how they are kept ‘in the usual course of business,’ as required by Rule 34(b)(2)(E)(i)” and that MetLife “cites no authority showing that this satisfies its obligations under Rule 34”, Judge Martin also stated that “MetLife’s production was not consistent with what the parties discussed at the beginning of discovery. On July 28, 2016, the parties filed their Report of Parties’ Planning Meeting, which stated: ‘The parties anticipate making a preliminary production of ESI by hard copy…All ESI produced electronically will be produced in native format to the extent possible.” (emphasis added). After MetLife made its initial production in response to Defendants’ first requests for production, Defendants objected to the format of the documents, but MetLife apparently ignored the objections and continued to produce in PDF format.”

Judge Martin also stated: “MetLife says that production in native format would not yield relevant information, because in its view the ‘only remaining issue’ in the case is whether it had a duty to investigate the information in the policy application prior to issuing it. However, MetLife has not shown that the requests fall outside of the legitimate scope of discovery… If the Court were to apply this standard, information about who accessed the application information – which might be visible in native form – could be relevant to whether that person should have investigated further.”

As a result, Judge Martin granted the defendants’ motion to compel the plaintiff to produce all responsive documents in native format and also ordered the defendants to file an itemization of costs and fees, including attorney’s fees, incurred in making the Motion to Compel.  However, Judge Martin also said this:

“Finally, although Defendants are entitled to the previously produced documents in native form, the Court clarifies that they are not entitled to all metadata. Some of Defendants’ filings could be interpreted to argue that Defendants are entitled to all metadata related to the documents previously produced. In general, metadata must be specifically requested in advance, and Defendants did not do that…While production in native format will inevitably result in the exchange of some metadata, Defendants are not entitled to all metadata generally, except to the extent it appears with the documents as kept in the usual course of business.”

Hmmm…

So, what do you think?  Should metadata be requested in advance or does the request for “responsive documents in the form in which they are maintained in the usual course of business” assume the inclusion of metadata (assuming that involves production of native format documents)?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Plaintiffs’ “Mindlessly Deficient” Objections to Native Format Production: eDiscovery Case Law

In McDonnel Grp., LLC v. Starr Surplus Lines Ins. Co. et al., No. 18-1380 (E.D. La. Oct. 3, 2018), Louisiana Magistrate Judge Joseph C. Wilkinson, Jr. granted in part and denied in part the defendants’ motion to compel, granting the defendants’ requests for the plaintiffs to produce construction schedules in native format, to identify responsive materials already produced to other specified defendants’ requests and to provide a privilege log for any documents withheld based on privilege to those requests.  Judge Wilkinson denied the defendants’ request for attorney’s fees and other expenses incurred in connection with the defendants’ motion.

Case Background

In this dispute between a general construction contractor and its insurers, the defendants sought production of construction schedules in native format, but the plaintiff asserted that it had produced all responsive materials in PDF format, even though the defendants specified production of “all construction schedules for the Project in their native format (as native files)”, according to Fed. R. Civ. P. 34(b)(1)(C), which provides that a requesting party “may specify the form or forms in which electronically stored information (“ESI”) is to be produced.”  As the responding party, plaintiff was required to “state with specificity the grounds for objecting to the request, including the reasons.”

Judge’s Ruling

As Judge Wilkinson noted (while erroneously referring to the plaintiff as defendants a couple of times): “In their written response to Request No. 34, defendants(sic) complied with none of these requirements. Instead of asserting specific objections or stating that it intended to produce these clearly relevant and discoverable materials in some form other than the requested native format, defendants asserted a mindlessly deficient, boilerplate, stonewalling objection that the request was ‘vague, overly broad, and not reasonably calculated to lead to the discovery of admissible evidence.’…By failing to object to production in native format, defendants(sic) waived that objection… Such information in the construction schedule context, with its frequent alterations, change orders, and time sensitive but often disturbed deadlines, is relevant. The PDF files chosen by plaintiff for production are merely pictures of the materials that do not provide metadata.”

Continuing, he wrote: “Plaintiff offers no proof that production of the requested construction schedules in native format would be unduly burdensome or expensive or that native files are not the way it ordinarily maintains the construction schedules. Instead, it relies upon Rule 34(b)(2)(E)(iii), which provides that “[a] party need not produce the same electronically stored information in more than one form.” Plaintiff dispossessed itself of this protection when it failed to object to production of its native files in its written response or state in its written response that it would produce all requested materials in PDF form, as required in Rule 34(b)(2)(D). To permit a responding party, in the face of a request that ESI be produced in a particular form, arbitrarily to choose some other form, would disrupt and undermine the orderly request/response/objection/confer structure and requirements of the remainder of the Rule concerning ESI. For these reasons, the motion is granted as to Request No. 34. Plaintiff must produce all native files sought in this request, together with a new written response, signed pursuant to Fed. R. Civ. P. 26(g), clearly stating that it has done so.”

Judge Wilkinson also classified the plaintiff’s written responses to other requests as “deficient” and ordered the plaintiff to “provide new written responses to these requests, clearly stating that it has produced all non-privileged responsive materials in its possession, custody or control, signed pursuant to Fed. R. Civ. P. 26(g), and identify those responsive materials by Bates number or other specific identifier. If plaintiff is withholding any materials responsive to these requests on privilege or work product grounds, it must provide the log required by Fed. R. Civ. P. 26(b)(5).”  However, Judge Wilkinson denied the defendants’ request for attorney fees and other expenses incurred in connection with the defendants’ motion.

So, what do you think?  Should failure to provide specific objections to form of production requests automatically waive those objections?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Rules “No Harm, No Foul” in Allowing Clawback After Protective Order Deadline: eDiscovery Case Law

In the case In re Abilify (Aripiprazole) Prod. Liab. Litig., No. 3:16-md-2734 (N.D. Fla. Sept. 17, 2018), Florida Magistrate Judge Gary R. Jones denied the plaintiff’s Disclosure Motion regarding two documents that defendant Bristol-Myers Squibb (BMS) claimed were privileged and inadvertently disclosed, stating that “[a]lthough BMS might not have followed the precise terms of the Protective Order”, “the one-day delay in sending the privilege log can charitably be described as a situation where the expression ‘no harm, no foul’ applies.”

Case Background

In this products liability case against pharmaceutical manufacturers, the plaintiffs’ used an internal BMS email and PowerPoint during the January 31, 2018, deposition of BMS’ executive director for Abilify marketing from February 2007-December 2008. The PowerPoint discussed, among other things, BMS’ Corporate Integrity Agreement (“CIA”).  During the deposition, BMS’ counsel objected on the grounds that the use of the PowerPoint contained “privileged . . . confidential information [that] was inadvertently produced, in particular the section that was drafted by and presented by legal.” BMS’ counsel expressly advised the plaintiffs before the conclusion of the deposition that they would be “exercising our clawback rights under our protective order.”

After the deposition was concluded BMS sent an email to the plaintiffs confirming their intent to claw back the email and PowerPoint as inadvertently produced.  While the email did not mention attorney-client privilege and did not contain a privilege log, BMS sent the plaintiffs a notice and associated privilege log on February 5 articulating the basis for clawing back the redacted email and PowerPoint attachment. BMS then produced redacted, replacement versions of the email and PowerPoint.  The plaintiffs claimed that BMS waived privilege because they failed to provide a written notice within two business days from the date of the deposition accompanied by a log articulating the privilege basis for the documents and also argued that the redacted portions of the documents were not privileged because the documents did not convey legal advice.

Judge’s Ruling

Evaluating the plaintiffs’ Disclosure Motion, Judge Jones stated: “Plaintiffs’ argument on timeliness fails for two reasons. First, as a practical matter Plaintiffs were notified at the deposition on January 31, 2018 that BMS asserted a privilege over the documents based upon the fact that a section of the PowerPoint had been prepared by and presented by an attorney. BMS reaffirmed its assertion of its rights under the clawback that same day on January 31, 2018, when it sent a confirming email to Plaintiffs. While the confirming email was not accompanied by a privilege log, there was no mystery at that point that BMS asserted a privilege and sought to claw back the document, as it was entitled to do under the Protective Order.”  While noting that the Protective Order required written notification accompanied by a privilege log within two business days on the deposition (and BMS’ second email wasn’t until the third business day), Judge Jones stated: “Although BMS might not have followed the precise terms of the Protective Order, in the Court’s view the one-day delay in sending the privilege log can charitably be described as a situation where the expression ‘no harm, no foul’ applies. Plaintiffs cannot point to any prejudice they suffered or could have suffered as a result of the receipt of a privilege log one day late, which simply confirmed the privilege timely raised by BMS at the deposition and then confirmed in writing the same day.”

Noting that BMS’ in-house counsel not only participated in the preparation of the PowerPoint, but also that the PowerPoint was part of a presentation by Senior BMS counsel made to BMS management employees, Judge Jones upheld BMS’ privilege designation of the materials and denied the plaintiffs’ Disclosure Motion.

So, what do you think?  How much leeway should be given to inadvertent disclosures when they fall outside of the parameters of a protective order?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Judge Recommends Sanctions for Defendant Under FRCP 37(e)(1): eDiscovery Case Law

In Franklin v. Howard Brown Health Ctr., No. 17 C 8376 (N.D. Ill. Oct. 4, 2018), the Illinois Magistrate Judge, stating that “the defendant has had to concede that, at the very least, it bollixed its litigation hold – and it has done so to a staggering degree and at every turn”, recommended that the plaintiff’s motion for discovery sanctions be granted to the extent that the “parties be allowed to present evidence and argument to the jury regarding the defendant’s destruction/failure to preserve electronic evidence in this case”.

Case Background

In this case for workplace harassment and discrimination, this particular dispute began with the plaintiff’s document request, which required the defendant to produce emails and text messages exchanged between certain key parties involving the plaintiff.  The defendant referred plaintiff to a number of “emails” already produced, but the plaintiff was looking for “instant messages,” as this was the method the plaintiff alleged the individuals used to harass him, but the defendant produced only two of those, despite the fact that deposition testimony indicated that was the standard way employees communicated with one another and one of the key parties said he saved “instant messages” to his Outlook email folder (despite the defendant’s claims that they weren’t as a matter of course).

According to the plaintiff’s supervisor, the plaintiff specifically promised a lawsuit based on “racism, transphobia and sexism” among the staff as early as July 24, 2015, but the defendant’s attorney categorized that as a “vague threat”.  One of the plaintiff’s alleged harassers left the company a mere two days after that, but his computer was wiped within 7 days of his last day at work.  According to the defendant’s general counsel, the litigation hold was not instituted until August 28, 2015.  In the GC’s affidavit, she indicated that he instructed an IT administrator to remove the plaintiff’s computer from the wiping process, but apparently never followed up or looked at the computer (that IT administrator had also left the company and was also now suing the defendant) and that data was lost as well.  The defendant’s GC also never instructed anyone in the IT department to stop the auto-delete of any saved instant messages – as a result, “barely a handful” of them were produced.

Judge’s Ruling

Noting that the “failure to preserve electronic evidence is covered by Fed.R.Civ.P. 37(e)”, the Magistrate Judge said that “In the end, given at least what appears to be the defendant’s gross negligence – and that’s viewing things favorably to the defendant – the best route is that proposed by the Advisory Committee in its notes to the 2015 amendment to Fed.R.Civ.P. 37(e)(1), specifically, allowing the parties to present evidence to the jury regarding the situation that was caused by defendant’s faulty and failed litigation hold… Accordingly, it is recommended that parties be allowed to present evidence and argument to the jury regarding the defendant’s destruction/failure to preserve electronic evidence in this case, and that the jury be instructed as the trial judge deems appropriate.”

So, what do you think?  Is the recommendation an appropriate application of FRCP 37(e)(1)?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Also, it’s time for the Fall 2018 eDiscovery Business Confidence Survey on Rob Robinson’s Complex Discovery site.  This quarter’s survey is unique in the fact that it asks three additional questions beyond the standard nine business confidence questions asked during the previous eleven surveys. These new questions are focused on understanding operational business trajectories around the areas of days sales outstanding (DSO), monthly recurring revenue (MRR), and revenue distribution across customer bases.  The response period is between today and achievement of 66 responses or November 30, 2018 (whichever comes first).  66 is not a lot of responses, so you’ll want to get your response in quickly!  We’ll cover the results once they’re published.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Plays Referee in Search Term Dispute Between Parties: eDiscovery Case Law

In Digital Ally, Inc. v. Taser Int’l, Inc., No. 16-cv-2032-CM-TJJ (D. Kan. Sept. 11, 2018), Kansas Magistrate Judge Teresa J. James granted in part and denied in part the defendant’s Motion to Compel ESI Discovery, sustaining in part the plaintiff’s overbreadth and relevance objections to specific defendant ESI Requests by providing a compromised scope between the defendant’s proposed searches (deemed to be overbroad) and the plaintiff’s proposed searches (most of which were deemed to be too narrow).

Case Background

In this patent infringement case, the parties agreed to limit each party’s email production requests to five custodians and to a total of five search terms per custodian per party.  The parties could not come to an agreement on the scope for four of the five search term Requests in Defendant’s Second Set of Requests for E-Mail Production for the plaintiff’s Chief Financial Officer.  The parties subsequently conferred and exchanged proposed revisions to the defendant’s ESI requests. Unable to reach an agreement, the defendant filed the instant motion, to which the plaintiff objected, citing that the terms proposed by the defendant were overbroad.

Judge’s Ruling

In each of the four disputed ESI requests, Judge James sustained the plaintiff’s overbreadth objection, but also rejected or modified the plaintiff suggested term in most cases as too narrow.  Here are the rulings on the four requests:

Request 2:

Defendant proposed:

“Compet!” and (“vievu” or “Safariland” or “watchguard” or “(watch /2 guard)” or “WG” or “ICOP” or “20!” or “vault” or “ivault” or “wireless” or “(wc /2 1000)” or “(wc /2 2000)” or “WMIC” or “MIC” or “extreme” or “TACOM” or “(signal! /2 device)” or “SPPM” or “flex” or “fleet” or “DVM” or “FirstVu” or “microvu” or “vulink” or “FleetVu” or “trigger” or “(auto /2 activat!)” or “strateg!” or “evidenc!” or “hardware” or “software” or “cloud” or “system” or “(law /2 enforcement)” or “military” or “advantage!” or “success!” or “fail!” or “win!” or “los!” or “bid” or “rfp” or “bundl!”)

Plaintiff proposed:

“Compet!” and (“vievu” or “Safariland” or “watchguard” or “(watch /2 guard)” or “WG”)

Judge James ruled: “Defendant’s ESI Request 2 shall be limited insofar as Plaintiff shall not be required to search CFO Heckman’s ESI for the term “Compet!” combined with any of the following other commonly used words: “extreme,” “trigger,” “strateg!,” “evidenc!,” “hardware,” “software” or “cloud” or “system” or “advantage!” or “success!” or “fail!” or “win!” or “los!” or “bid” or “rfp” or “bundl!””

Request 3:

Defendant proposed:

“Invest!” or “shareholder!” or “stock!” or “Roth” or “Gibson” or “Truelock” or “Searle” or “Fortress” or “FIG” or “Palmer” or “Shtein” or “Eriksmith” or “Aegis” or “Lubitz” or “Rockowitz” or “Fidelity”) AND (“acqui!” or “financ!” or “secur!” or “monet!” or “loan!” or “offer!” or “merg!” or “buy” or “sell” or “valuation!” or “patent!” or “licens!”)

Plaintiff proposed:

(“Invest!” or “shareholder!” or “stock!” or “Roth” or “Gibson” or “Truelock” or “Searle” or “Fortress” or “FIG” or “Palmer” or “Shtein” or “Eriksmith” or “Aegis” or “Lubitz” or “Rockowitz” or “Fidelity”) AND (“vulink” or “DVM” or “FirstVu” or “microvu” or “FleetVu”)

Judge James ruled: “The Court finds Plaintiff’s counterproposal is too restrictive of the terms following the “AND” in Request 3. Instead the Court will limit Request 3 to the following search-term combinations:

(“Roth” or “Gibson” or “Truelock” or “Searle” or “Fortress” or “FIG” or “Palmer” or “Shtein” or “Eriksmith” or “Aegis” or “Lubitz” or “Rockowitz” or “Fidelity”) AND (“acqui!” or “financ!” or “secur!” or “monet!” or “loan!” or “offer!” or “merg!” or “buy” or “sell” or “valuation!” or “patent!” or “licens!”).”

Request 4:

Defendant proposed:

(“cam!” or “!cam” or “product” or “vault” or “ivault” or “DVM” or “FirstVu” or “microvu” or “vulink” or “FleetVu” or “trigger” or “(auto /2 activat!)” or “bundl!”) AND (“financ!” or “net” or “revenue!” or “cost!” or “profit!” or “margin!” or “sale!” or “sell!” or “sold” or “royalt!” or “licens!” or “unit!” or “period” or “quarter” or “annual” or “monet!” or “balance” or “income” or “cash!”)

Plaintiff proposed:

“DVM” or “FirstVu” or “microvu” or “vulink” or “FleetVu” or “VuVault” AND (“financ!” or “net” or “revenue!” or “cost!” or “profit!” or “margin!” or “sale!” or “sell!” or “sold” or “unit!” or “period” or “quarter” or “annual” or “monet!” or “balance” or “income” or “cash!”)

Judge James ruled: “The Court sustains Plaintiff’s overbreadth objections to Defendant’s ESI Request 4 for the terms “product” and “bundl!” combined with generic and commonly used finance and business search terms after the “AND.” The Court finds these search-term combinations are overly broad and Plaintiff shall not be required to search its CFO’s ESI using these search-term combinations. The Court rejects Plaintiff’s counterproposal, but modifies Defendant’s ESI Request 4 so that Plaintiff shall not be required to search Heckman’s ESI for the terms “product” or “bundl!” combined with any terms after the “AND.””

Request 5:

Defendant proposed:

“Patent!” AND (“Cam!” or “!Cam” or “(auto /2 activat!)” or “compet!” or “strateg!” or “(auto /2 activat!)” or “auto-activat!” or “automatic-activat!” or “automatically-activat!” or “auto! activat!” or “9,253,452” or “9253452” or “452” or “vulink”)

Plaintiff: Objected to the proposed connector terms “cam!,” “compet!,” and “strategy”, arguing that the “cam!” term would capture any patent about camera, which was far broader than the subject matter of this case and argued the terms “compet!” and “strategy” would return any email mentioning patents and competition or strategy of any type.

Sustaining the plaintiff’s objections that the defendant’s request was overbroad, Judge James ruled: “Defendant’s Request 5 shall be limited to the following search-term combinations:

“Patent!” AND (“(auto /2 activat!)” or “(auto /2 activat!)” or “auto-activat!” or “automatic-activat!” or “automatically-activat!” or “auto! activat!” or “9,253,452” or “9253452” or “452” or “vulink”)”

So, what do you think?  When should courts step in and rule on search term disputes between parties?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Denies Plaintiff’s Request for Sanctions for Defendant’s Failure to Preserve Surveillance Video: eDiscovery Case Law

In Ball v. George Washington Univ., No. 17-cv-0507 (DLF) (D.D.C. Sept. 27, 2018), District of Columbia District Judge Dabney L. Friedrich, denied the plaintiff’s motion for sanctions for allegedly destroying two surveillance videos, stating: “Because Ball has not proven—even by a preponderance of the evidence—that GW permanently stored the Lafayette Hall surveillance footage, the Court need not conduct further inquiry under Rule 37(e).”

Case Background

In this case for wrongful termination, negligence and violations of rights, the defendant considered surveillance footage from two days (July 13 and 14, 2015) that showed the plaintiff entering and exiting buildings on campus, during its investigation preceding the termination of the plaintiff’s employment.  The defendant produced a July 13 video of the plaintiff in one building and produced screenshots of the July 14 surveillance footage from another building, Lafayette Hall, but it did not produce videos of Lafayette Hall for either July 13 or July 14, which reportedly showed the plaintiff entering and exiting at different times than he had indicated on his time sheet.

According to declarations, the surveillance footage was recorded on network video recorders that automatically delete old footage as the recorders become full. The video recorders that stored the July 13 and 14 Lafayette Hall footage at issue typically delete footage every 30 days (and sometimes as early as 14 days) after recording. Defendant police officers routinely permanently download surveillance footage for use in criminal investigations; however, they download surveillance footage for Human Resources (HR) investigations only upon an HR investigator’s request.

In this case, the parties disputed whether the footage at issue was downloaded: the plaintiff contended that the surveillance footage was permanently stored on CDs and given to a member of the defendant’s HR department (Claude Owens), and ultimately to the defendant’s in-house counsel, arguing that the videos’ alleged non-existence showed that the defendant’s in-house counsel destroyed or lost the videos. The defendant countered that the surveillance footage was not permanently stored but instead was automatically overwritten within 30 days (and possibly 14 days) of recording.  While Owens “thought he might have given the tape to ‘the lawyers’”, a detective with the defendant’s police force (Detective Robinson) stated in a declaration that he never downloaded the Lafayette Hall sixth floor footage and had only showed and sent screenshots to the HR employee.

Judge’s Ruling

Judge Friedrich stated: “Although the evidence before the Court is unclear, the weight of the evidence tilts in favor of GW’s explanation. Robinson’s declaration, coupled with evidence that the envelope remained sealed until Romero opened it, supports a finding that the surveillance footage of Lafayette Hall was never downloaded from the video recorders. Robinson stated that he never downloaded the Lafayette Hall sixth floor footage…And Owens testified that neither he nor Wells ever opened the sealed envelope…To the extent that the deposition testimony of Wells and Owens provides any support for Ball’s theory, the evidence is speculative and inconclusive…Because Ball has not proven—even by a preponderance of the evidence—that GW permanently stored the Lafayette Hall surveillance footage, the Court need not conduct further inquiry under Rule 37(e).”

So, what do you think?  Should the defendant have preserved the video if it was used as evidence to terminate the plaintiff’s employment?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Denies Party’s Request to Produce in Native Format Instead of TIFF: eDiscovery Case Law

In the case IN RE SYNGENTA AG MIR 162 CORN LITIGATION, MDL 2591, No. 16-2788-JWL (D. Kan. Sept. 25, 2018), Kansas Magistrate Judge James P. O’Hara, stating that “there is no dispute that documents in TIFF format are easier to work with and enable depositions and court proceedings to run more smoothly”, denied the request of party Louis Dreyfus Company Grains Merchandising LLC (LDC) to relieve it from the production requirements of the case’s ESI Protocol Order to produce electronically stored information (ESI) in TIFF image file format and instead allow LDC to produce in native format.

Case Background

In this multi-district corn litigation, on August 16, 2018, the Court ordered LDC to complete its document production by September 6.  On August 31, LDC sought an extension, asserting that technical complications and infrastructure limitations made it impossible to meet the deadline. There was no mention in LDC’s motion or supporting briefs of any difficulty LDC would have producing the documents in TIFF format as required by the ESI Protocol Order. The court granted LDC’s request and ordered LDC to produce “as many documents as possible (which should be most)” by September 28; and to produce the remainder of the documents by October 12.

On September 5 and 11, LDC produced a large number of documents in native format, stating it did so in order to get the documents to Syngenta as expeditiously as possible, asserting that converting documents to TIFF adds “substantial time to production.”  Syngenta complained to LDC about the production format on September 11, noting that production of documents in native format—with only the first page of a document numbered, rather than page-by-page bates numbering—creates confusion when a party wishes to reference a particular page of a document during depositions, in court filings, and at trial.

In a September 24 letter brief, LDC asked the court, for the first time, to relieve it from the production requirements of the ESI Protocol Order, arguing that the exception to the ESI production protocol applied because LDC “has been required to produce a huge number of documents under extreme time pressure” and characterizing the lack of Bates stamps on documents for depositions as a “minor inconvenience” to Syngenta.  LDC stated it “is converting these files to TIFF format, but Syngenta is unreasonably insisting that all documents be in TIFF before the deadline.”

Judge’s Ruling

Judge O’Hara stated: “LDC’s arguments are unpersuasive. First, there is no dispute that documents in TIFF format are easier to work with and enable depositions and court proceedings to run more smoothly. As recognized by the Sedona Conference, they allow a party to refer to particular portions of a document—perhaps in designating confidentiality or directing a witness to particular language—by page number.

Second, the ESI Protocol Order requires a party seeking to deviate from the image/TIFF-format production to “promptly” notify the requesting party as soon as it identifies a source of data to which the protocol should not apply (because it would be unduly burdensome or impractical). Here, LDC did not notify Syngenta or the court before producing documents in native format. LDC made no mention of its perceived formatting production issue in its previous briefs addressing Syngenta’s proposed search terms or seeking extensions of the production deadlines.

Third, LDC has offered no evidence to support its “burdensome” and “impracticality” arguments. To the contrary, LDC informed Syngenta on September 14, 2018, that converting the native files in its previous document productions would take approximately two weeks. Thus, the first TIFF production should occur by the September 28, 2018 deadline for the majority of LDC’s documents. As for documents yet to be produced, LDC does not state how long producing them in the first instance in TIFF format (as opposed to native format with a subsequent conversion) might take its vendor. Accordingly, the court is not convinced that it is impossible for LDC to meet the October 12, 2018 deadline for final production.”

Noting that “the court is determined to keep this case moving forward” to keep depositions on schedule, Judge O’Hara denied LDC’s request that it be permitted to complete its document production in native format only by the October 12, 2018 deadline.

So, what do you think?  Should the court have given LDC more leeway or time to produce the documents in TIFF format?  Should the parties have been able to work out a document numbering scheme for documents to be referenced in depositions?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

In No Small Ruling, Court Takes Defendant to Task for Discovery Violations: eDiscovery Case Law

In Small v. Univ. Med. Ctr., No. 2:13-cv-0298-APG-PAL (D. Nev. Aug. 9, 2018), Nevada Magistrate Judge Peggy A. Leen, in a lengthy ruling so large it included a table of contents, accepted and adopted in part and overruled in part the Special Master’s Report and Recommendation and Final Findings of Fact and Conclusions of Law.  Judge Leen sanctioned the defendant with an adverse inference instruction to the jury instead of the default judgment sanction recommended by the special master.

Case Background

In this case involving claims against the defendant for unpaid wages and overtime which followed a Department of Labor (“DOL”) investigation that addressed issues about uncompensated time for hourly employees related to uncompensated meal breaks, the court “reluctantly” appointed a special master after “a series of hearings over many months made it painfully apparent” that the defendant, its counsel, and consultants were failing in their efforts to produce ESI responsive to plaintiffs’ discovery requests, including issuing a production to the plaintiffs that was mostly “unintelligible” with extracted text in pages of undecipherable codes complete with Japanese and Korean characters.

In special master Daniel Garrie’s report (covered by us nearly four years ago here), he found that “Not a single UMC executive took any of the steps necessary to ensure the preservation of evidence. No UMC executive took responsibility for instituting or enforcing a ‘litigation hold,’ or otherwise acting to ensure the preservation of documents in this case.”  Calling the defendant’s widespread failure to preserve data a “mockery of the orderly administration of justice”, he recommended sanctions, stating, “Defendant UMC’s extraordinary misconduct and substantial and willful spoliation of relevant ESI in this case resulted in substantial prejudice to Plaintiffs and the classes, and misled Plaintiffs, the Court, and the Special Master on numerous discovery issues…The level of intentional destruction of evidence by UMC shocks the conscious. As such, as to the 613 Opt-In Plaintiffs, default judgment should be entered against UMC pursuant to Rule 37(b)(2)(A)(iii) & (vi) and the Court’s inherent powers.”

Judge’s Ruling

In a lengthy ruling that re-capped in detail the complaint, the various hearings regarding eDiscovery issues and various declarations during the special master proceedings, Judge Leen stated the following findings and conclusions:

  • “Special Master Garrie was Professional, Neutral, Possessed Specialized Knowledge and Expertise, and Remedied Much of UMC’s ESI Deficiencies” (despite the defendant’s contentions to the contrary);
  • “UMC Failed to Comply with the Court’s Orders to Preserve and Produce ESI”;
  • “UMC Had No Preservation Policy or Litigation Hold Policy and Failed to Timely Implement One”;
  • “UMC Executives Failed to Accept Responsibility for Ensuring that ESI was Preserved and Failed to Notify Key Custodians and IT Staff to Preserve, and Prevent Loss, or Destruction of Relevant, Responsive ESI”;
  • “UMC Failed to Disclose the Existence of Relevant ESI Repositories, Including Multiple Timekeeping Systems and the Q-Drive (drive with files containing human resources, corporate compliance, employee grievance, payroll, and DOL investigation data) Until Late in the Special Master Proceedings”;
  • “UMC Modified, Lost, Deleted and/or Destroyed ESI Responsive to Plaintiffs’ Discovery Requests”;
  • “UMC’s Failure to Comply with its Legal Duty to Preserve, Failure to Put in Place a Timely Litigation Hold, Failure to Comply with Multiple Court Orders to Preserve and Produce Responsive ESI, and Loss and Destruction of Responsive ESI (1) Necessitated the Appointment of a Special Master, (2) Caused Substantial Delay of these Proceedings, and (3) Caused Plaintiffs to Incur Needless Monetary Expenses”; and
  • “The Special Master Correctly Concluded UMC Repeatedly Misrepresented the Completeness of its Production of Documents Produced to DOL; However, UMC Was Not Ordered to Produce Kronos Payroll Data in Spreadsheet Format”.

With regard to sanctions for the defendant, Judge Leen stated “There is no question UMC failed to implement a timely litigation hold and failed to communicate its legal preservation duties to key custodians of discoverable evidence. There is no question that UMC failed to preserve discoverable ESI. There is no question data was lost or destroyed as a result. There is no question sanctions are warranted. UMC concedes they are. The only question is what sanctions are appropriate and proportional for the violations.”

Ruling “it is ‘just and practicable’ to apply the amended version of Rule 37(e)”, Judge Leen ultimately determined “Although the court finds plaintiffs have been prejudiced by the loss of data from key repositories and custodians, the loss has not threatened to interfere with the rightful decision of the case on its merits given the large volume of ESI the special master was able to ensure that UMC produced. For these reasons, the court finds that lesser sanctions are appropriate, proportional, and no greater than necessary to cure the prejudice caused by the loss of ESI uncovered by the special master.”

As a result, Judge Leen, while accepting and adopting the special master’s report, overruled the Special Master’s recommendation of case dispositive sanctions and instead stated: “UMC is sanctioned in the form of an instruction to the jury that the court has found UMC failed to comply with its legal duty to preserve discoverable information, failed to comply with its discovery obligations, and failed to comply with a number of the court’s orders. The instruction will provide that these failures resulted in the loss or destruction of some ESI relevant to the parties’ claims and defenses and responsive to plaintiffs’ discovery requests, and that the jury may consider these findings with all other evidence in the case for whatever value it deems appropriate.”  She also imposed monetary sanctions against the defendant in the form of “reasonable costs and attorneys’ fees unnecessarily incurred by plaintiffs”.

So, what do you think?  Did the court go far enough with sanctions against the defendant?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

For more about this case, check out this Above the Law article written by Mike Quartararo.

Case opinion link courtesy of eDiscovery Assistant.

Also, if you’re going to be in Houston this Thursday, September 27, just a reminder that I will be speaking at the second annual Legal Technology Showcase & Conference, hosted by the Women in eDiscovery (WiE), Houston Chapter, South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS).  I’ll be part of the panel discussion AI and TAR for Legal: Use Cases for Discovery and Beyond at 3:00pm and CloudNine is also a Premier Platinum Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).  Click here to register!

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.