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Case Law

Lawyers Failing to Cite Important Cases in Their Briefings is Far From Unprecedented: eDiscovery Case Law

Lawyers often spend hours on legal research to identify cases to cite in their briefings to the court.  Hopefully, they do a thorough job and identify all of the key case precedents that can support their case.  But, how often do they miss key, highly relevant cases?  And, how often do those omissions jeopardize the outcome of their cases?  Based on one survey of Federal and State judges, it happens a lot.

The legal research company Casetext surveyed 66 federal and 43 state judges to learn whether missing precedent over affects the outcome of a matter and published the findings in a report The Prevalence of Missing Precedents (available for download here).  The survey asked just two questions:

  1. How often do you or your clerks uncover case law that attorneys should have cited in their briefing but did not?
  2. Has a party missing a precedent before your chambers impacted the outcome of a motion or proceeding?

With regard to the first question, judges were asked how often they uncover case law that is not cited in the attorney’s brief, on a scale of “never happens” to “almost every case.” The findings revealed that:

  • 83 percent of the judges said that they or their clerks catch attorneys missing relevant cases at least some of the time.
  • Over 27 percent of the judges (and 29 percent of the federal judges) see it occur the majority of the time or in almost every case.
  • Less than 17 percent experienced missed cases rarely.

With regard to the second question, when asked whether missing precedent impacts the outcome of a motion or proceeding, over 68 percent of judges (and nearly 70 percent of federal judges) have experienced missing precedent impacting the outcome of a motion or proceeding.

Of course, as Bob Ambrogi notes in his LawSites blog, “For Casetext, the takeaway of this survey is that lawyers should use its CARA artificial intelligence technology to help find missing cases.”  And, that is certainly a good tool.  But, as Bob notes (and I agree), it’s important to use multiple tools to round out your legal research.  When it comes to research about eDiscovery cases (and which ones we’re going to cover), we use eDiscovery Assistant (our write-up on that tool is here), which is a great research tool.

And, eDiscovery Daily has written over 600 case law write-ups, covering over 460 unique cases, since our inception in 2010.  So, you can always check our site as well!

So, what do you think?  What sites do you research for case law precedents?  Or any comments you might have or if you’d like to know more about a particular topic.

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.

eDiscovery Daily First Ever Call for Important Case Law

We’ve already covered 21 eDiscovery related case law decisions so far this year (18 of them are case law decisions that happened this year, 3 of them covered early in the year were decisions from last year).  Believe it or not, that’s less than we’ve usually covered by this point in the year.  But, have we covered the most important case rulings so far this year?  Do you have one or more favorite case law decisions so far this year?  Now is your chance to weigh in and tell us about it!

Usually, we pick the cases to cover and I think we generally do a pretty good job of picking important case law decisions with regard to eDiscovery.  So far this year, we’ve covered a case where the plaintiff wanted to email all of the defendant employees to request relevant ESI, where one plaintiff’s case was dismissed after she was found to have manufactured text messages, an appellate court reversed a lower court ruling and ordered the plaintiff to turn over private photos on Facebook, a ruling regarding warrantless cell phone searches at the US border, a ruling involving the deletion of “sock puppet” social media accounts by an infringing author and a case where the defendant owners of a fishing boat were told by the court that their request for ESI after an incident on their boat amounted to “fishing” (what else would you expect?).  :o)

However, while it would be great to cover every case law decision, we want to cover other stories as well.  As a result, we are simply going to miss covering some important case law decisions.  But, have we missed any of the most important ones (at least in your view)?  If so, we want to hear from you.

Next month, Tom O’Connor and I will conduct a webcast covering important case law decisions from the first half of 2018.  We plan to do it the week of July 23rd, which is Shark Week on the Discovery Channel and “Case Week” for us (why? because it’s fun!).  If you think there is an important case from this year so far that needs to be covered, we want to hear from you!  The sooner, the better as we would like to cover the case on eDiscovery Daily before Tom and I discuss it during next month’s webcast.  So, if you have a favorite case so far from 2018, or two of them, or even several of them, please let us know.

So, what do you think?  Do you have any favorite cases from 2018 so far?  If so, please share those!  Or any comments you might have or if you’d like to know more about a particular topic.

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.

Plaintiff is Able to Get Some Subpoenas for Personal Data Quashed, But Not All: eDiscovery Case Law

In Delgado v. Tarabochia, et al., No. C17-1822RSL (W.D. Wash. May 4, 2018), Washington District Judge Robert S. Lasnik granted in part and denied in part the plaintiff’s motion to quash subpoenas for personal phone records and bank records, finding that phone records before the plaintiff’s hand injury on the defendant’s fishing boat were “of vital importance to defendants’ theory of the case”, but that the need for pre-incident bank records was not proportional to the needs of the case and that, with regard to subpoenas of post-incident data, defendants were “fishing”.

I’ll pause a moment to let you enjoy the irony of that statement… :o)

Case Background

Anyway, the plaintiff injured his hand while on board the F/V JOYCE MARIE and sued the vessel and vessel owner(s) for Jones Act negligence and unseaworthiness, alleging that he lost his balance and his hand went through a plate glass window on the wheelhouse, causing severe injuries with continuing disabilities.  However, another crew member on board at the time of the incident claimed that the plaintiff was using heroin in the days leading up to the incident and was in the midst of a heated argument with his girlfriend when he punched through the window.  After the plaintiff left the vessel, defendants located a computer file supposedly created by the plaintiff, containing text messages, emails, and photographs dated October 2013 to July 2014 that seemed to reflect drug transactions and a volatile relationship, but the plaintiff (in his deposition) denied fighting with his girlfriend and denied punching through the wheelhouse window.  Reporting that he had no feeling in three of his fingers and his thumb and was in constant, severe pain, the plaintiff claimed he was entitled to damages of $3 million, but the defendant had surveillance video that seemed to contradict the plaintiff’s testimony regarding the extent and severity of his injuries.

The defendants issued three subpoenas for phone records from January 2014 to the present, including all account information, call and text message logs, and roaming data. They also issued two subpoenas for bank records for the same period, seeking detailed summaries of credit and debit card transactions, withdrawals, and deposits. The plaintiff seeks to quash all five subpoenas as irrelevant and an unwarranted burden on his privacy interests.

Judge’s Ruling

With regards to the pre-incident phone records, Judge Lasnik indicated that “defendants have identified a specific need to confirm events and authenticate communications that are directly relevant to a determination of whether defendants’ negligence and/or the vessel’s unseaworthiness caused plaintiff’s injuries. To the extent these records mirror the electronic files found on the vessel’s computer and corroborate the other crewman’s statements, they are of vital importance to defendants’ theory of the case. While much will be disclosed that has nothing to do with this case, plaintiff’s privacy interests do not outweigh the need to obtain relevant information regarding the cause of plaintiff’s injuries in this case where plaintiff says he is entitled to damages of $3,000,000.”

With regards to the pre-incident bank records, Judge Lasnik stated that “defendants offer no reason to suspect that these records will authenticate or corroborate the electronic files plaintiff left behind. Production of plaintiff’s pre-incident finances, including every purchase and every deposit, is unlikely to result in admissible evidence (there is no reason to suspect that plaintiff used a credit card to purchase heroin or that defendants would be able to identify such transactions from a list of charges or withdrawals). Because of its minimal relevance and the outsized burdens it would impose on plaintiff’s privacy interests, discovery of the pre-incident bank records is not proportional to the needs of the case.”

As for the post-incident phone and bank records, Judge Lasnik stated that “defendants are fishing” and granted the plaintiff’s motion to quash the subpoena for these records because the “balance of the benefits and burdens of these post-incident discovery requests are not in defendants’ favor: they are not prompted by any specific need for information and are likely to drive discovery and generate disputes that are wholly collateral to the primary issues in this case.”

So, what do you think?  Did the judge assess the relevancy and proportionality in this case correctly and were the defendants “fishing” for the post-incident records?  Tee-hee!  Please share 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.

Plaintiff Argument for Failure to Produce Cell Phone Data in Wife’s Name is “Unpersuasive”: eDiscovery Case Law

In Ortiz v. Amazon.com LLC, et al, No. 17-cv-03820-JSW (MEJ) (N.D. Cal. May 25, 2018), California Magistrate Judge Maria-Elena James ordered the plaintiff, who failed to produce court-ordered cell phone records because the account was in his wife’s name and refused to provide her information, to provide defendant Golden State with his cell phone account holder’s name and address so that defendant could subpoena the cell phone records from her.  Judge James also ordered the plaintiff to appear for a deposition in San Francisco, as originally scheduled, instead of Los Angeles (where the plaintiff had moved).

Case Background

In this case on March 7, 2018, the Court ordered the plaintiff to produce his cell phone records to Golden State no later than April 6, 2018. The plaintiff stated these records were not in his possession or control, as the account for the phone records was in his non-party wife’s name.  The plaintiff claimed he had attempted to obtain the phone records by requesting them from the carrier, but was not authorized to do so, nor could he get them from his wife (the plaintiff didn’t explain why).  He did not inform Golden State that the cell phone records were in his wife’s name and thus unobtainable until April 27, 2018 – three weeks after the Court-ordered deadline for production.  The plaintiff also refused to provide his wife’s name and address to allow defendant Golden State to subpoena the records from her, despite his representations that he would do so by May 8 and 16.

Also, on January 25, 2018, defendant Golden State requested the plaintiff’s availability for deposition and, at the beginning of March, he confirmed his deposition would take place on April 23, 2018. On March 7, 2018, defendant Golden State served a Notice of Deposition that Plaintiff’s deposition would take place at defense counsel’s San Francisco office, but on April 19, 2018, Plaintiff cancelled the deposition because he moved to Los Angeles.

The plaintiff defendant Golden State filed two joint discovery dispute letters, from which the Court made its ruling.

Judge’s Ruling

In assessing the request for cell phone records, Judge James stated that “Plaintiff does not explain his delay in informing Golden State that the cell phone records are not in his possession or control. Plaintiff knew or should have known who is named on the account; he offers no reason why this information was not available to him prior to April 27. Plaintiff has known as early as September 18, 2017, and at the very latest, as of March 7, 2018, that he had to produce his phone records… Plaintiff states that, ‘[f]or personal reasons, Plaintiff wishes to maintain the details of his relationship status, and interactions with his wife, private.’…This argument is unpersuasive. By alleging Golden State failed to pay him for all hours worked and to provide him with meal and rest breaks, Plaintiff has placed his work day activities—including whether he made or received phone calls or text messages on his personal cell phone—at issue. Providing the account holder’s name and address reveals minimal details, if any, about Plaintiff’s marital status or interactions.”  As a result, Judge James ordered the plaintiff to provide defendant Golden State with his cell phone account holder’s name and address so that defendant could subpoena the cell phone records from her.

As for the deposition, Judge James ordered the deposition to be conducted in San Francisco, noting the fact that the plaintiff “did not inform Golden State that his relocation would cause difficulties until the eve of the deposition is not well taken” and rejecting the plaintiff’s proposed compromise to have one of Golden State counsel’s Los Angeles attorneys take the deposition in counsel’s Los Angeles office.  She also granted Golden State’s request for an order that “Plaintiff appear at his deposition before he can compel or proceed with depositions of Golden State’s witnesses”.

So, what do you think?  Do these seem like delay tactics or could the plaintiff have had a legitimate reason for failing to produce the cell phone records?  Please share 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 Request for “Quick Peek” to Privilege Log, Proposing Special Master Review Instead: eDiscovery Case Law

In Winfield v. City of New York, No. 15-cv-05236, (S.D.N.Y. May 10, 2018), New York Magistrate Judge Katherine H. Parker, ruling on a debate of what constitutes privileged ESI,  denied the plaintiff’s request for a “quick peek” at 3,300 documents listed on the defendant’s privilege log, opting to propose instead for a special master to conduct a privilege review of those documents.

Case Background

In June 2017, the defendant moved for return of an accidentally produced privileged document under the agreed-upon procedures set forth in their Clawback Agreement, which then led to further discussion between the parties about the defendant’s privilege designations, with the plaintiffs believing the defendant over-designated documents as privileged.

In July 2017, the court directed the plaintiffs to identify a subset of 80 documents from the defendant’s privilege log that had been withheld on the basis of the deliberative process privilege. The court also ruled that “the defendant would have an opportunity to rereview the 80-document subset identified by Plaintiffs and determine whether it intended to maintain its privilege claim as to each document.”

After this review, the defendant maintained a claim of privilege over only 27 documents and withdrew its privilege designation for 51 document and produced them.  The Court subsequently ordered the City to submit all 80 documents to this Court for in camera review for purposes of assessing the validity of the initial and remaining privilege designations.

The plaintiffs also contested some of the defendant’s refusal to answer at depositions on the basis of attorney-client, work product, and/or deliberative process privilege and submitted a letter to the court seeking privilege rulings on 20 questions to which the City’s witnesses were directed not to respond. The defendant subsequently withdrew its privilege objections six of these questions and provided the plaintiffs with responses.

In February 2018, the court issued a lengthy ruling granting the defendant’s Clawback Demand and granting in part and denying in part the plaintiffs’ motion to compel production of certain documents from the sample set of documents designated as privileged by the defendant on its privilege log. The court also granted in part the plaintiffs’ motion to compel answers to questions posed during depositions. At the same time, the court directed the defendant to re-review its privilege designations, after which, the defendant de-designated certain documents as privileged and produced them.

In April 2018, the plaintiffs raised a concern with the volume (3,300 documents) designated by the defendant as privileged. The court then directed the parties to meet and confer concerning a proposal to address the plaintiffs’ concerns. At that meeting, the plaintiffs proposed the Court order the defendant to turn over all 3,300 documents designated as privileged for a “quick peek” at them, promising to review them in only a few weeks. The defendant, which had already spent significant time reviewing documents for privilege prior to producing them, vigorously objected.

Judge’s Ruling

After taking into consideration FRCP 26 and FRE 502, as well as previous case law, Judge Parker ruled:

“The task of reviewing 3,300 documents is enormous and one that this Court cannot complete before the end of fact discovery on July 31, 2018 given other demands in this and other cases. Appointment of a Special Master to conduct the privilege review pursuant to Rule 53 is therefore warranted…. In accordance with Rule 53(b)(1), the parties may file a letter regarding their position on the appointment of a Special Master, whether they have identified any conflict-of-interest issues… and suggest other candidates for appointment if they so desire…. Given the costs of a Special Master, Plaintiffs are directed to evaluate whether they can narrow the documents for review so as to reduce the time and thus the costs of the review.”

Judge Parker proposed the appointment of the Honorable Frank Maas (Ret.) of JAMS, who recently retired as a Magistrate Judge in the District and was available to conduct a review (and was recently proposed for a privilege review in another high-profile case).  Judge Parker indicated that “the parties may file a letter regarding their position on the appointment of a Special Master, whether they have identified any conflict-of-interest issues that would preclude appointment of Judge Maas, and suggest other candidates for appointment if they so desire.”

So, what do you think? Is the appointment of a special master to perform the privilege review the right ruling? Please share 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 Grants Adverse Inference Sanction Against Infringing Author: eDiscovery Case Law

In Nunes v. Rushton, No. 2:14-cv-00627-JNP-DBP (D. Utah May 14, 2018), Utah District Judge Jill N. Parrish, ruling that the plaintiff was prejudiced by the deletion of one of the defendant’s Google “sock puppet” accounts, granted the plaintiff’s motion for sanctions in part, ordering an adverse instruction to the jury regarding the “bad faith” deletion of that account.  Judge Parrish denied the motion with regard to several other accounts, ruling that the plaintiff was not prejudiced by deletion of those accounts (as most of the information was still available or recoverable).

Case Background

In this case, the defendant infringed the plaintiff’s copyright in her novel by copying protected elements of the book and distributing copies of the infringing work to reviewers and bloggers for promotional purposes. Around this time, the defendant created a number of “sock puppet” accounts on Google and Yahoo by registering these accounts under usernames that did not identify her as the individual controlling the accounts and used these accounts to create several sock puppet accounts on Facebook, Goodreads, and Amazon. The defendant then used the Goodreads and Amazon sock puppet accounts to post positive reviews of her own books and negative reviews of the plaintiff’s books. The defendant also created a Twitter account and a Blogspot account under her pen name to promote her books.

In August 2014, the plaintiff became aware of the potential infringement, attempted to obtain an advance copy of the infringing novel and discover the true identity of the defendant’s pen name. The defendant used her sock puppet social media accounts to anonymously criticize the plaintiff’s efforts to investigate the infringing novel. Sometime in August or September of 2014, after the plaintiff had discovered the defendant’s identity, The defendant deleted most of her sock puppet accounts. The defendant also deleted her pen name Twitter and Blogspot accounts. The plaintiff filed this lawsuit on August 28, 2014.

During litigation, the plaintiff made a discovery request for documents stored on the defendant’s various Google and Yahoo accounts. On August 12, 2015, while this discovery request was pending, the defendant deleted one of her Google sock puppet accounts.  When the court granted a motion to compel the defendant to produce documents from her Google and Yahoo accounts, counsel for the defendant represented that she had lost the passwords to the accounts, leading to subpoenas to those services.  The defendant deleted all of the remaining accounts on March 21, 2016, asserting that she did so because she believed that all of the documents associated with the accounts had been or would be produced by Google and Yahoo pursuant to the subpoenas.  Google stated that the account deleted on August 12, 2015 could not be recovered because too much time had passed, but preserved the accounts that had been deleted on March 21, 2016.

Judge’s Ruling

In analyzing the defendants’ motion, Judge Parrish denied the motion for sanctions regarding most of the accounts, determining that the plaintiff suffered no prejudice because the information pertaining to those accounts either remained, was saved by the plaintiff before the accounts were deleted or could be recovered by Google and Yahoo.

As for the August 12, 2015 deletion of one of the Google accounts, Judge Parrish stated: “At the time of the deletion, Rushton had a duty to preserve this account because litigation was pending. The court also finds that Nunes was prejudiced by the deletion because any documents or emails stored on this account were irretrievably lost… Given that litigation had been pending for almost a year, that Rushton was represented by counsel, and that Nunes had requested the production of documents associated with this Google account, the court infers that Rushton’s August 12, 2015 deletion of one of her Google accounts was done in bad faith.”

As a result, Judge Parrish ordering an adverse instruction to the jury regarding the “bad faith” deletion of that account.

So, what do you think?  Was an advance inference sanction a severe enough punishment?  Please share 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’s Ruling on Scope Under Rule 26 Brings a Mixed Bag of Motions Granted and Denied: eDiscovery Case Law

In TMJ Grp., LLC v. IMCMV Holdings, No. 17-4677 (E.D. La. April 6, 2018), Louisiana Magistrate Judge Janis van Meerveld ruled on Motions to Compel by both parties, both of which were granted in part and denied in part.

Case Background

The plaintiff, TMJ, alleged that it had been fraudulently induced to invest in two Margaritaville restaurants (one in the Mall of America and one in New Orleans) by the defendants. An interesting aspect of the discovery motions is TMJ’s allegation that it sought and obtained financing for the investment at issue in this lawsuit from FNBC Bank and that IMCMV altered financial figures in the financial statements so that FNBC would approve the financing after initially rejecting it.

IMCMV’s Motion to Compel

The first item at issue was the defendant’s motion to compel the redacted communications between FNBC and the plaintiff, which were ordered for in-camera review, as well as several depositions given after the discovery deadline. As a result, issues arose around scope of discovery under FRCP Rule 26.

The plaintiff submitted much of their document production right before or on the discovery deadline (around 3,700 pages) and as a result, the defendant said it didn’t have all the relevant documents available for the depositions where some FNBC documents were discussed, and because it did not have sufficient time to review those documents prior to the deposition, they argue that they “had an incomplete picture of the relationship, agreements, and documents, exchanged between FNBC and TMJ.”

The defendant also sought to compel the deposition of one or more former FNBC representatives, pointing out that the FNBC representatives are listed on both parties’ witness lists. However, because they did not have all of the FNBC documents prior to the discovery deadline, they initially decided not to depose FNBC. The late production of documents caused them to revisit this decision.

The plaintiff opposed the deposition of any FNBC representatives, claiming the request is untimely, because they identified FNBC personnel in its initial disclosures and earlier document production and that the defendant had long had sufficient information to determine whether to take such depositions. The plaintiff insisted it would be prejudiced if the depositions were allowed, given that trial was imminent.

TMJ’s Motion to Compel

The plaintiff’s motion to compel sought certain financial documents, including tax returns and schedules, financial statements, and accounting ledgers for all of the defendant’s other Margaritaville restaurants, insisting the documents were relevant, because the defendant’s financial forecasts were based on comparable IMCMV owned restaurants, which influenced their decision to invest.

The defendant claimed these financials were irrelevant and disproportional as the other restaurants are not a part of this litigation. The defendant explained that this data was already produced in Excel files which was considered by their expert.

The plaintiff also demanded responses to its interrogatories regarding the reasoning behind changes to financial statements made while the investments at issue here were being negotiated, alleging that the defendant altered them to make the investment appear more attractive to the plaintiff and FNBC. The plaintiff makes note that their identical responses to the three requests aren’t “boilerplate,” but that they meaningfully explain how changes were made by stating that “in preparing financial projections, [IMCMV] takes into account planned seating capacity, estimated revenue per seat per year, the financial results of other Margaritaville-themed restaurants, the location, market competitors, and the labor market.”

The plaintiff also sought text messages between the parties, pointing out that they frequently corresponded in this manner. The defendant responded that their former chief development officer left the company, and they had not been able to access his iPhone. The defendant requested passcodes from the former CDO, but those didn’t work. Another individual who also was no longer working for IMCMV, had custody of the phone in the interim, but he had reset the phone and added a new passcode. The defendant then contacted Apple and its carrier, AT&T, who both indicated that the passcode could not be bypassed without resetting the phone.

Judge’s Ruling

Regarding IMCMV’s motions, there was no real dispute that a deposition of an FNBC representative is within the scope of discovery. Judge van Meerveld ruled that “a second deposition of Motwani [an FNBC Bank representative] is appropriate here in light of the documents produced after his deposition. The scope of the deposition shall be limited to the documents produced after Motwani’s deposition, and any other documents or issues required to give context to, provide clarification of, to contrast with, or explain discrepancies with the documents produced after Motwani’s deposition. This could, therefore, permit reference to earlier produced documents.” Accordingly, an extension of the discovery deadline was provided, and the defendant “may proceed with a deposition of one FNBC representative and, if necessary due to that representative’s inability to provide complete answers, a second FNBC representative.”

In regard to the plaintiff’s motions, Judge van Meerwald agreed that “the financial documents for the other Margaritaville restaurants are not relevant or proportional to the needs of this case. TMJ already has the key performance indicators extracted from those financials for the purpose of creating the business cases and pro formas for the proposed investment. The relevance of the financial statements of the other restaurants is too tangential to justify the burden of production.” As to these documents, the motion to compel was denied.

As to the plaintiff’s demand that certain financial documents be produced in Excel rather than PDF format, the court found the burden to the defendant “too great to justify IMCMV undertaking that endeavor here. However, the Court has ordered the parties to work together to provide the documents in their native format. If this is unsuccessful, the parties may contact the chambers of the undersigned to set up a telephone conference to discuss.”

So, what do you think? Did the judge interpret the idea of scope under Rule 26 correctly?  Please share 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.

Fourth Circuit Rules that Warrantless Cell Phone is Warranted: Data Privacy Trends

Don’t let my cute title confuse you.  In this case, the Fourth Circuit issued an interesting decision regarding whether a warrant is required to search an individual’s cell phone.

According to Sharon Nelson’s terrific Ride the Lightning blog (4th Circuit Says Border Search of Phones Requires Individualized Suspicion (But Not a Warrant)), on May 9th, the Fourth Circuit Court of Appeals issued a decision in US v. Kolsuz, ruling that in light of the immense privacy concerns, forensic searches of electronic devices seized at the border must be justified by individualized suspicion, or some reason to believe that a particular traveler had committed a crime.  But not a warrant.

The appeals court said border patrol officers had reasonable suspicion to conduct a forensic search of Hamza Kolsuz’s cellphone, and they were entitled to rely on that standard based on case law that suggested it was, at most, all that was required. The officers had seized Kolsuz’s phone after they found firearms parts that required an export license in his checked luggage. It was the third time weapons parts were found in his luggage.  That certainly seems like reasonable suspicion to me.

The forensic search of Kolsuz’s phone produced information that included personal contact lists, e-mails, messenger conversations, photographs, videos, calendar, web browsing history, call logs and GPS tracking history. He was sentenced to 30 months in prison after a conviction for violating the Arms Export Control Act and conspiracy.

The federal government had contended that searches of electronic devices require no warrant or individualized suspicion under an exception that allows searches of suitcases at the border.  Tom O’Connor discussed the Border Entry exception as part of his Understanding eDiscovery in Criminal Cases on our blog here.

The decision is the first federal appellate ruling to require individualized suspicion in a border search of a cellphone since the U.S. Supreme Court ruled in Riley v. California in 2014 (which Tom O’Connor also discussed on our blog here) that police generally can’t search the contents of a cellphone seized during an arrest, unless they get a warrant, according to the Electronic Frontier Foundation (EFF).

Under Riley’s recognition of the extensive information stored on cellphones, the Fourth Circuit said, the forensic search of Kolsuz’s phone should be considered a nonroutine border search that requires some measure of individualized suspicion.

The EFF and the ACLU had filed amicus briefs urging the Fourth Circuit to go further and hold that probable cause is needed before a search of electronic devices, whether it’s a manual search or one using forensic software.

After arguments in the case, the Department of Homeland Security adopted a policy that treats forensic searches of digital devices as nonroutine border searches requiring reasonable suspicion of activity that violates the customs laws or in cases raising national security concerns, according to the opinion.

The ACLU and the EFF have filed a separate lawsuit that challenges warrantless searches of electronic devices at the border.  In her blog, Sharon notes that she “remain(s) on their side.”  We can agree to disagree on this one… :o)

So, what do you think?  Should cell phone and other electronic device searches at the border require a warrant?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Former Employee Sanctioned for Lying Under Oath, Destruction of ESI: eDiscovery Case Law

In Heggen v. Maxim Healthcare Servs., Inc., No. 1:16-cv-00440-TLS-SLC (N.D. Ind. April 27, 2018), Indiana Magistrate Judge Susan Collins ruled that the plaintiff’s destruction of requested cellphone recordings, as well as lying under oath, were sanctionable under FRCP Rule 37.

Case Background

The plaintiff filed the case against her former employer – a provider of temporary medical staffing, home health care, and wellness services – with claims of sexual harassment and retaliation. The plaintiff stated under oath that she chose to leave these employers “voluntarily” because the two clients with whom she worked were going into a nursing home.

However, the defendant pointed out that records show that the plaintiff was terminated after she refused to discuss a complaint that the plaintiff stole $300 from a client under her care, as well as mismanagement of the client’s financial assets. A discovery request to the Indiana Department of Workforce Development revealed that the plaintiff had worked for Interim Health Care immediately prior to joining the defendant, even though she responded to the first request for production with a different former employer, and then stated a second employer during her deposition. Based on the records from Interim, the defendant claimed that the circumstances of the plaintiff’s departure from Interim were “strikingly similar” to the plaintiff’s time at the defendant, including that a patient’s medications went missing – the plaintiff then tested positive for the missing medications on a drug test, and the plaintiff failed to return to work after the complaint.

The clearest contention that the defendant brought is that the plaintiff destroyed key evidence in at least three different ways and this, along with the other actions by the plaintiff, the defendant contended was grounds for a dismissal sanction. The plaintiff testified at her deposition that she made about seven recordings of unidentified defendant employees and said these recordings supported her claims against the defendant, she also testified that the Equal Employment Opportunity Commission (“EEOC”) had the recordings, because she deleted the recordings from her cell phone since she “didn’t want them to have [her] phone lost and have them be out there.” She claimed she had emailed the recordings to the EEOC, but couldn’t find any copy of the emails transmitting the recordings. After sending the emails, she performed a factory reset of her phone (an older Apple model) that basically had “broke[n] down,” and that she was trying to get working again. The reset deleted all of the data stored on it, including the recordings.

She felt that emailing the recordings to EEOC was a form of preservation and “thought it was okay to get rid of them[.]” Copies of three of the recordings were found, and the plaintiff submitted transcripts of these recordings with her response brief, and she also provided a copy of the recordings and transcripts to the defendant. However, there was no explanation for the other missing recordings.

The defendant had sought the recordings from the plaintiff for months through traditional discovery and because it did not have the recordings when it deposed the plaintiff, it felt that resulted in prejudice against them. They also argued that there was a significant difference between original recordings and copies of recordings. What the plaintiff submitted appeared to be at least two different layers of recorded conversations: “an ongoing face-to-face interaction between individuals who are supposedly simultaneously listening to and participating in a different interaction by telephone, all recorded on top of each other.”  Also, because they were copies, there was no way to delve into the original metadata of the recordings. Further, while the original recordings were made on an iPhone, the files produced were in 3GP format, a format generally used by Android phones, raising even more questions.

Judge’s Ruling

Judge Collins ruled that the defendant’s failure under oath to disclose Interim as a prior employer and for her destruction of the original cell phone recordings was sanctionable. But noted that a sanction for discovery abuse must be “a proportionate response to the circumstances.”

Judge Collins stated, “The draconian sanction of dismissal is not presently warranted here. Rather, the present circumstances warrant the imposition of lesser sanctions in the form of a monetary penalty—that is, ordering Heggen to pay the reasonable expenses, including attorney’s fees, that Maxim incurred in filing the motion to compel [See FRCP Rule 37]. The Court has no reason, at least at this juncture, to conclude that the imposition of this monetary penalty would be fruitless. The Court will also consider a spoliation instruction upon a pretrial motion by counsel should this case go to trial. The motion for sanctions is otherwise denied. Heggen is duly warned that any additional discovery transgressions may result in further sanctions against her, up to and including dismissal of this case.”

So, what do you think?  Was the ruling correct or was a sanction of dismissal warranted in this case?  Please share 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.

Former Football Players Sanctioned for Failure to Produce: eDiscovery Case Law

In Michael E. Davis, et al. v. Electronic Arts, Inc., No. 10-cv-03328-RS, (N.D. Cal., April 3, 2018), California Magistrate Judge Donna M. Ryu ruled that the plaintiff’s failure to fully comply with the discovery requests by the defendant were sanctionable under FRCP Rule 37, which states, “Such sanctions may include ordering a party to pay the reasonable expenses, including attorneys’ fees, caused by its failure to comply with the order or rule.”

Case Background

Three former NFL players claimed that Electronic Arts (EA) used their likenesses in the Madden NFL videogame series without authorization. In July 2017, EA moved to compel plaintiffs to provide further responses to discovery, and the court ordered the parties to meet and confer regarding the disputes set forth in the letters and to file joint letters regarding any remaining disputes. After a hearing, the Court granted in part EA’s motions to compel further responses to requests for the production of documents (“RFPs”), interrogatories, and requests for admission (“RFA”), setting a deadline for response on September 28, 2017.

A day after the deadline, the plaintiffs responded by saying they had, “engaged in a reasonable and diligent search” but found no responsive documents to certain requests. The plaintiffs also said the requested privilege log was rendered unusable due to a computer error even though both the plaintiffs and the plaintiffs’ attorney had stated in an earlier hearing that they had regular communications via email regarding the case.

EA requested sanctions of $45,000 against the plaintiffs under Rule 37. However, the billing records EA provided to the court did not segregate the fees by task or category, which makes it difficult to evaluate the reasonableness of the time expended, or to calculate precise sums that should be allowed or disallowed. But even with the problems with EA’s billing records, it was clear that EA incurred substantial attorneys’ fees in attempting to obtain plaintiffs’ compliance and seeking court intervention.

Judge’s Ruling

Given the inconsistencies between counsel and plaintiffs’ statements about communications regarding this litigation, Judge Ryu expressed concern about the adequacy of the plaintiffs’ search for responsive documents and ordered them to “search thoroughly all . . . email, going all the way back, for communications between [Plaintiffs] and other people who are not lawyers about this case.”

Judge Ryu also ruled that the plaintiffs’ response to the defendant’s discovery request was deficient and found monetary sanctions appropriate in this case, in addition to the evidentiary sanctions, as their conduct forced EA and the court to continue to expend significant resources to address plaintiffs’ failure to meet its discovery obligations and provide basic discovery.

“A sanction of $25,000 is justified in these circumstances and acknowledges that this amount represents a significant discount from the actual attorneys’ fees incurred by EA as a result of plaintiffs’ counsel’s actions. The court finds that $25,000, coupled with the evidentiary consequences set forth above, are an appropriate sanction here.”

So, what do you think?  Was the ruling correct or were sanctions unwarranted in this case?  Please share 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.