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After Objection, No Waiver of Privilege for Putting Information on File Share Site without Protection: eDiscovery Case Law

In Harleysville Insurance Co. v. Holding Funeral Home, Inc., No. 1:15cv00057 (W.D. Va. Oct. 2, 2017), Virginia District Judge James P. Jones sustained the plaintiff’s objections to the Magistrate Court ruling that the plaintiff’s placement of privileged information on a file share site and distribution of the hyperlink to access that information without providing any protection for the site resulted in a failure to take reasonable steps to protect the information.  As a result, for their “improper” conduct in failing to promptly return the materials, the defendants received an evidentiary sanction, barring their use of the inadvertently disclosed privileged materials.  Judge Jones overruled the plaintiff’s objection to the decision not to disqualify defense counsel, stating he was “not convinced that the ‘blunt remedy of disqualification is appropriate.’”

Case Background

In this dispute over a fire insurance claim by the defendants against the plaintiff insurance agent, a senior investigator for Nationwide Insurance, owner of the plaintiff company, uploaded surveillance footage to a file share service operated by Box, Inc. and sent an email containing a link to the site to an investigator at the National Insurance Crime Bureau (“NICB”) in September 2015.  The email contained a confidentiality notice indicating that the “e-mail contains information that is privileged and confidential”, but the information on Box was not password protected.  For a while, only the video was available on the Box site, but in April 2016, the Nationwide investigator placed files containing the plaintiff’s entire claims file and Nationwide’s entire investigation file for the defendants’ fire loss on the Box Site to be accessed by the plaintiff’s counsel – a month later, in response to a subpoena, the NICB electronically produced its files – including the email containing the link – to the defense counsel, which gave them access to the file share site containing the claims files.

Defense counsel subsequently accessed the site and reviewed and downloaded the entire claims file, but did not notify the plaintiff’s counsel that it had accessed the information until plaintiff’s counsel discovered the claims file included in materials produced by the defense in October 2016.  As a result of this discovery, the plaintiff moved to disqualify defense counsel; in response, they argued that that the motion should be denied because the plaintiff “waived any claim of privilege or confidentiality by placing the information on the Box, Inc., site where it could be accessed by anyone.”  Magistrate Judge ruled that Pamela Meade Sargent, determining that “Rule 502 does not apply in this situation to prevent a waiver of the work-product doctrine”, concluded that the plaintiff waived any claim of privilege or work-product protection over its Claims File.  She also declined to disqualify defense counsel, but ruled that they should bear the cost of the parties in obtaining the court’s ruling on the matter.  The plaintiff’s objected to both rulings.

Judge’s Ruling

Noting that “the magistrate judge did not have the benefit of reviewing the Claims File” and that “it is within my discretion to receive and consider additional evidence”, Judge Jones found that “the attorney-client privilege attaches to multiple documents contained in the Claims File”, calling them “the epitome of privilege.”  Judge Jones overruled the plaintiff’s objection to the magistrate court findings that the disclosure was inadvertent, leading to the consideration of three of five factors (Judge Jones agreed with the magistrate court that “Factors Three and Five have no applicability to this case”) to determine whether privilege had been waived:

(1) [T]he reasonableness of the precautions to prevent inadvertent disclosures, (2) the time taken to rectify the error and (4) the extent of the disclosure.

Noting that “the Box Folder was not searchable through Google or any other search engine, nor was it searchable on the Box, Inc. website” and that “as a practical matter, the [disclosed] URL itself functions as a password”, Judge Jones did “conclude that Nationwide, acting for Harleysville, did take reasonable precautions to prevent an inadvertent disclosure of the Claims File and that this factor weighs against a finding of waiver” and sustained the objection on reasonable precautions.  Judge Jones also observed that “Harleysville’s counsel were not notified of the disclosure until October 27, 2016” and “reached out to Insureds’ counsel to request destruction of the privileged materials on November 1, 2016” in sustaining the objection on time taken to rectify the error.  He also noted that the “disclosure in this case was not extensive” in sustaining that objection as well.

As for sanctions against defense counsel, Judge Jones found that “Insureds’ counsel had an obligation to ‘promptly return, sequester, or destroy’ the privileged materials, Fed. R. Civ. P. 45(e)(2)(B), with which they refused to comply.”  He also found that “Insureds’ counsel had a duty to uphold the integrity of the legal profession and to strive to avoid impropriety, as well as the mere appearance of impropriety” and that they “failed to do so”.  However, noting that “the mistakes by Nationwide’s employee initiated this issue”, Judge Jones declined to disqualify defense counsel, stating that “I am not convinced that the ‘blunt remedy of disqualification is appropriate.’”  Instead, Judge Jones found that “an evidentiary sanction is appropriate”, ruling that “the Insureds must not use any information contained in the privileged material, or information derived from such material, to seek additional information in discovery, through a subpoena, or in any other manner. Moreover, the Insureds must not use the information contained in or derived from the privileged material for any purpose in any filing or proceedings (including trial) in this action or any other related civil action.”

We covered the case previously here and Tom O’Connor and I also discussed it in a webcast as one of the key eDiscovery cases in the first half of 2017 here.

So, what do you think?  Was the first ruling right in waiving privilege or the second one right in determining that privilege was not waived?  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.

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.

Houston, We Have a Problem – Court Specifies Jury Instructions to Address Spoliation Findings: eDiscovery Case Law

In GN Netcom, Inc. v. Plantronics, Inc., No. 12-1318-LPS (D. Delaware, Oct. 5, 2017), Delaware District Judge Leonard P. Stark chose to determine the preliminary and final jury instructions he would give with respect to the defendant’s spoliation for the “intentional and admitted deletion of emails” ruled on earlier, as well as the “Stipulated Facts” he would read to the jury at or near the start of the trial, rather than respond to the four spoliation-related questions posed by the plaintiff or defendant.

In this case with claims of monopolization, attempted monopolization and common-law tortious interference with business relations against the defendant, the defendant received “punitive sanctions in the amount of $3,000,000” for the “intentional and admitted deletion of emails” by the defendant’s Senior Vice President of Sales.  After reviewing the parties’ joint status report, as well as other materials submitted throughout the case, and having discussed the issues with the parties on multiple occasions, including during the pretrial conference, Judge Stark chose to determine the preliminary and final jury instructions he would give, as well as the “Stipulated Facts” he would read to the jury at or near the start of the trial.

Judge Stark identified this language as the “preliminary instruction {that} will be provided to the jury”:

“SPOLIATION

The law requires that parties preserve relevant documents, including emails, when litigation is pending or contemplated. This is because, when one party sues another, each side has the right under the law to inspect or obtain production of internal documents and other evidence from the other party.

The destruction or material alteration of evidence or the failure to preserve documents or emails for another party’s use as evidence in pending or reasonably foreseeable litigation is referred to as “spoliation.”

In this case, it has been determined that Plantronics committed spoliation.

It has also been determined that Plantronics’ spoliation was not accidental and that evidence relevant to this case may have been destroyed by Plantronics. As such, during this trial, you may hear questions and answers from the parties referencing missing or destroyed emails and Plantronics’ spoliation of evidence. While the exact contents of the spoliated evidence are unknown, you, the jury, will be permitted – but not required – to infer that the lost documents were relevant and favorable to GN’s case and/or harmful to Plantronics’ case.

*3 You will learn during trial that Don Houston, a former employee at Plantronics, failed to preserve certain emails after his duty to preserve them arose. You will also hear that efforts were made to recover the emails that Mr. Houston failed to preserve and that additional emails were produced to GN through these recovery efforts.

I will have further instructions on these matters for you at the conclusion of the trial.”

Judge Stark identified this language as the “final instruction {that} will be provided to the jury”:

“SPOLIATION

I instruct you that Plantronics failed to preserve evidence after its duty to preserve arose. This failure to preserve is known as ‘spoliation of evidence.’ In other words, spoliation is the destruction or material alteration of evidence or the failure to preserve evidence for another’s use in pending or reasonably foreseeable litigation.

Based on Plantronics’ spoliation, you may, but are not required, to presume that the lost evidence would have been relevant and helpful to GN’s case and/or would have been harmful to Plantronics’ case. Alternatively, you may infer that the evidence not produced would merely have been duplicative of, or similar to, the evidence before you.

In other words, your role is to determine whether Plantronics’ spoliation tilted the playing field against GN. If so, the permission given to you by the Court to infer that the missing documents would have been relevant and helpful to GN and/or harmful to Plantronics is designed to allow you to balance that playing field, should you feel it is necessary.

It is up to you to decide the extent to which the lost evidence was relevant and helpful to GN and/or harmful to Plantronics. Of course, it is impossible to know exactly what evidence was lost – although the parties have tried – so you must make these determinations to the best of your ability based on all of the facts and circumstances of this case. You must then decide how much weight and effect to give to your belief about spoliation in reaching your verdict.”

Judge Stark also identified the 16 stipulations that he would read.  Four of those stipulations would only be read “if, no later than Saturday, October 7 at 3:00 p.m., Plantronics submits an affidavit providing the evidentiary basis for the numerical figures contained in these paragraphs, all of which the Court adopted based on Plantronics’ representations.”

So, what do you think?  Is a jury instruction a sufficient sanction for the “intentional and admitted” spoliation by the defendant?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can still vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

Case opinion link courtesy of eDiscovery Assistant.

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 Default Judgment Sanctions for Defendant’s Production of Two Versions of Same Email: eDiscovery Case Law

But first, a reminder that Relativity Fest started yesterday and CloudNine is there.  As part of the team, I will be there covering the conference for eDiscovery Daily and will speaking(!) on Tuesday.  Click here to see our post on some of the anticipated highlights from the conference.  Today’s highlight is The Judicial Panel, today at 1:00pm, with David Horrigan of Relativity, along with Judge Nora Barry Fischer of the Western District of Pennsylvania, Judge Andrew Peck of the Southern District of New York, Judge Xavier Rodriguez of the Western District of Texas and (all the way from Australia) Justice Peter Vickery of the Supreme Court of Victoria (and the recent landmark TAR decision in that country) to discuss the latest legal developments in eDiscovery.

In Catrinar v. Wynnestone Communities Corp., et al., No. 14-11872 (E.D. Mich. Sept. 30, 2017), Michigan Magistrate Judge R. Steven Whalen denied the plaintiff’s Motion for Discovery Sanctions (requesting a default judgment) for fabricating and producing false evidence, finding that the defendant’s production of two versions of an email fail all four factors of the Harmon test applied by the court in this case to determine whether the defendant’s failure was due to willfulness, bad faith, or fault and whether the plaintiff was prejudiced by the defendant’s conduct, among other factors.

Case Background

In this case regarding the plaintiff’s claim against his former employer alleging violations of the Family Medical Leave Act (“FMLA”) as well as breach of contract and promissory estoppel, the centerpiece of the plaintiff’s Motion for Discovery Sanctions was an allegation that the defendants fabricated and produced false evidence in the case.  The allegation of false evidence stemmed from defendant Silverman’s apparent rewrite of an email originally sent on December 21, 2008, concerning an “E&S” Plan and whether Silverman was aware of the plan or authorized any amendments to the plan.  The original email, which the plaintiff referred to as ‘the real email,’ was written partially in Spanish; the second, which the plaintiff referred to as ‘the fake email,” elaborated more on Silverman’s lack of knowledge of any such plan.  Both emails were dated on December 21, 2008 and the plaintiff argued that the “fake email” fraudulently supported Silverman’s position that he did not authorize an amendment to the E&S Plan, and that the “real email” offered no such support.

The defendant conceded that the native Outlook email file of what the plaintiff referred to as the “fake email” showed that it was created in January 2012, not December 2008.  However, in Silverman’s declaration, he stated that he forwarded the December 2008 email to himself in January 2012 for the purpose of re-writing in English and elaborating on his original message, stating “The point of the two emails is the same.”

Judge’s Ruling

Judge Whalen stated: “The Court’s discretion is informed by the four-part test described in Harmon v. CSX Transportation, Inc…: (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed or defaulted party was warned that failure to cooperate could lead to dismissal or entry of default judgment; and (4) whether less drastic sanctions were imposed or considered before dismissal or default judgment was ordered.”

Judge Whalen also noted that “In deciding whether to impose ‘the draconian sanction’ of default judgment, the first factor—the party’s willfulness or bad faith in failing to comply with a discovery order—looms large.”  Noting that “Plaintiff filed his complaint on May 9, 2014, about two years and four months after the ‘fake email’ was created”, Judge Whalen, while acknowledging that “the discrepancy between the two emails and Silverman’s explanation as to how the later email came to be created may undoubtedly be exploited to the Plaintiff’s advantage” in trial, nonetheless stated: “I do not find that Plaintiff has shown ‘willfulness, bad faith, or fault’ with respect to the creation of the 2012 email.”  Judge Whalen also found that the plaintiff failed to meet the second Harmon factor, determining that the plaintiff was not prejudiced due to the fact that an “extension of discovery cures any prejudice which might otherwise have occurred as the result of the delay in Defendants’ production of the emails.”  Judge Whalen also found that the third and fourth Harmon factors were also not met, stating: “Defendants have not been previously warned that a default judgment or other sanctions could be imposed for discovery violations, nor have any lesser sanctions been imposed.”  As a result, Judge Whalen denied the plaintiff’s Motion for Discovery Sanctions.

So, what do you think?  Was the defendant’s explanation for the second email plausible?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can still vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

Case opinion link courtesy of eDiscovery Assistant.

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.

Google Requests Contempt Order For $10,000 Sanctions Per Day Against…Google: eDiscovery Case Law

But first, a reminder that Relativity Fest starts this Sunday and CloudNine will be there.  As part of the team, I will be there covering the conference for eDiscovery Daily and will speaking(!) on Tuesday.  Click here to see our post on some of the anticipated highlights from the conference.

Last month, we wrote that Google went 0 for 2 in August in its request for review of warrant cases related to the Stored Communications Act of 1986 (SCA) and the order to produce ESI stored internationally that is subject to warrants was upheld in both cases, including a ruling in the Northern District of California on August 14.  Now, Google has filed an instant motion asking the Court to: “a) hold Google in civil contempt of the August 14 order; b) impose sanctions of $10,000 for every day that Google fails to comply; c) stay those sanctions until seven business days after the Ninth Circuit affirms the Court’s order; and d) require Google to preserve any information in its possession that is subject to the search warrant.” As noted in California District Judge Richard Seeborg’s order, “the The terms of the proposed sanctions are similar to the terms of stipulations that Google and other companies have entered into with the government in similar cases in other jurisdictions.”

So, why did Google ask the Court to impose a daily sanction of $10,000 against Google?  Evidently, while the government and Google “agree that Google should be held in contempt of the August 14 order”, they “disagree, however, about the appropriate way to devise a sanction that will ensure Google’s compliance and about whether an evidentiary hearing is needed to conduct that inquiry effectively.”  The government argued that “an evidentiary hearing is needed to assess the equities at stake in this case properly and to devise an appropriate sanction”, while Google contended that there is “no need to develop a more substantial evidentiary record or to devise a more severe sanction than the $10,000 per day fine that Google has proposed.”  Google also noted that “this Court already found in the August 14 order that, ‘[i]n light of the Second Circuit decision in Microsoft and the absence of relevant Ninth Circuit precedent, Google’s diligent, good faith efforts to comply with current law do not warrant contempt at this stage of the proceedings.’”

In ruling on the dispute, Judge Seeborg stated: “Of the two sides, Google’s arguments are more persuasive…The government acknowledges that Google has a right to press its appeal; it is not arguing that Google must turn over the information now. Neither is it arguing—at least at present—that Google should be held in criminal contempt for its past behavior. Thus, the only question currently in need of answer is what sanction will secure Google’s prompt compliance with the August 14 order should its appeal fail.”  Judge Seeborg also noted that “Should Google prevail on appeal, the issue will be moot. If Google loses, it will be required to comply with the August 14 order or be subject to the sanctions imposed by this order. If, at that time, Google fails to turn over data the government believes Google previously possessed but did not preserve, the government can raise the issue and seek an appropriate remedy.”

Tip of the hat to ACEDS for the link to the latest order in this case.

So, what do you think?  Will Google win its appeal?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can vote for it and still help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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 Characterizes Plaintiff’s Request for Spoliation of Images Still Available as “Frivolous”: eDiscovery Case Law

In Barcroft Media, Ltd. et al. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF) (S.D.N.Y. Sept. 28, 2017), New York District Judge Jesse M. Furman denied the Plaintiffs’ motion for spoliation sanctions for failing to preserve web pages containing disputed images, and motion in limine to preclude the testimony of a defense expert witness for failing to list him in the defendant’s initial disclosures.

Case Background

In this case regarding intellectual property claims against the defendant relating to the allegedly infringing use of certain celebrity photographs, the plaintiffs filed a motion for spoliation sanctions against the defendant for failing to preserve the “webpages” on which it had displayed the Images; and a motion in limine to preclude the trial testimony of a defense expert witness (Robert Coakley) after the defendant failed to list him in its initial disclosures.

Judge’s Ruling

Noting that the “Plaintiffs’ motions are without merit”, Judge Furman stated:

“Given the plain language of [Federal Rule 37(e)], Plaintiffs’ motion borders on frivolous, for the simple reason that they cannot even show that the evidence at issue was ‘lost.’ Several of the Images are still hosted on CMG’s websites…And the record makes clear that Plaintiffs themselves possess copies of the other Webpages—in the form of screen captures taken when they displayed the Images (the ‘Screenshots’)…In fact, Plaintiffs themselves list the Screenshots as trial exhibits…Given that (plus the fact that Defendant does not dispute the authenticity of the Screenshots…or deny that it hosted and displayed the Images…, there is no foundation to impose sanctions under Rule 37(e). And to the extent that there were a foundation, sanctions would be inappropriate because there is no evidence whatsoever that Defendant ‘acted with the intent to deprive another party of the information’s use in the litigation,’…, and Plaintiffs obviously cannot show prejudice ‘as [they] actually possess[ ] copies’ of the relevant evidence.”

As a result, Judge Furman denied the plaintiffs’ motion for sanctions and also denied the plaintiffs’ motion in limine to preclude the testimony of Coakley after the defendant’s failure to list him in the defendant’s initial disclosures, noting that violation was “plainly harmless and thus not a basis for preclusion”, but did note a concern regarding his testimony regarding Google Analytics data the judge deemed as “inadmissible hearsay” and instructed the parties to “be prepared to address that issue at the final pretrial conference”.

So, what do you think?  Should parties be sanctioned for failing to preserve web pages?  Should a screen capture copy of an image be treated differently than an imaged copy of a journal?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

Case opinion link courtesy of eDiscovery Assistant.

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 Sanctioned for Preserving Only Scanned Copy of Journal and Destroying the Original: eDiscovery Case Law

In Mitcham v. Americold Logistics, LLC, No. 17-cv-00808-WJM-NYW (D. Colo. Sept. 20, 2017), Colorado Magistrate Judge Nina Y. Wang granted (in part) the defendant’s motion for sanctions for the plaintiff’s delay in producing a copy of a journal she kept while employed by the defendant and for her failure to produce the original copy of the journal by granting leave to re-open the plaintiff’s deposition for an additional two hours to examine the plaintiff about the journal and associated fees and expenses, but denied the defendant’s request for fees and expenses associated with the filing of the instant Motion and denied the defendant’s request for an adverse inference instruction.

Case Background

In this case in which the plaintiff claimed discrimination and improper termination for filing a formal complaint with a Human Resources hotline, the defendant requested (among other discovery requests) any “handwritten note, recorded communications, calendars, journals, diaries, logs, and the like” that related to the matter, but the plaintiff responded on two occasions that she had produced all such documents.  However, at the plaintiff’s deposition on July 13, 2017, she disclosed that she kept a “journal” to document all conversations she had regarding this matter so that she could recall those conversations in the future should the need present itself.  She also testified that she scanned the original copy of the journal and submitted it to her attorney, and then she shredded the original copy and acknowledged that it had not been previously produced.  The plaintiff then produced a scanned copy of the journal two days later, after the completion of her deposition.

About a month later, in August, the defendant filed an instant Motion seeking fees and expenses incurred by having to re-depose the plaintiff and for filing the instant Motion, as well as an adverse inference instruction sanction against the plaintiff.

Judge’s Ruling

Noting that “both Plaintiff and her counsel certified under Rule 26(g) that Plaintiff’s initial disclosures and responses were complete and accurate; however, a ‘minimal inquiry’ by Plaintiff’s counsel would have revealed the existence of the journal and required its production”, Judge Wang stated that “Ms. Mitcham’s failure to disclose the notebook in a timely fashion as part of her Initial Disclosures or in response to written discovery was not substantially justified. Indeed, Ms. Mitcham offers no, and this court cannot itself ascertain, a plausible explanation that Plaintiff was unaware of the notebook or its relevance to this instant action….it appears that Ms. Mitcham was withholding information (whether intentionally or not) that has hindered the progress of discovery”.

With regard to producing a scanned copy of her journal instead of the original, Judge Wang stated: “Plaintiff argues that her shredding the original journal does not constitute destruction, because she ‘kept a journal in the ordinary court of business and transferred it to computerized form as a matter of routine.’…Plaintiff continues that this satisfies the requirements of Rule 34(b)(2)(E), and that she timely supplemented her incomplete discovery responses with the scanned journal…These arguments are unavailing. Plaintiff’s original journal does not constitute electronically stored information; thus, Rule 34(b)(2)(E) is inapplicable. And, as mentioned above, a Rule 26 violation occurred.”

Judge Wang also determined that the plaintiff “abdicated” her duty to preserve by shredding the original, stating “It is clear that Plaintiff retained counsel the day after her termination and that, at this point, had not yet destroyed her original journal. Though Plaintiff stresses the fact that the scanned copy is just as good as the original, I respectfully disagree. First and foremost, there is no way for this court or the Parties to independently confirm that the scanned copy includes all the pages of the original journal. There is also no opportunity for the court or the Parties to determine from the handwriting, the ink, or otherwise if there are timing differences as to when certain entries were written. Therefore, this court concludes that the destruction of the original was unreasonable under the circumstances, because Ms. Mitcham retained counsel prior to shredding the original, and then scanned and sent a copy of the original to Mr. Olsen {her counsel} at his behest.”

As a result, Judge Wang granted (in part) the defendant’s motion for sanctions by granting leave to re-open the plaintiff’s deposition for an additional two hours to examine the plaintiff about the journal and associated fees and expenses, but denied the defendant’s request for fees and expenses associated with the filing of the instant Motion and denied the defendant’s request for an adverse inference instruction, determining that such a sanction is “not warranted at this time”.

So, what do you think?  Should parties be sanctioned for failing to preserve original copies of documents or should the requesting party bear the burden of showing that the copy is not complete?  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.

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 Motions to Compel Against Various Defendants, For Various Reasons: eDiscovery Case Law

In Blosser v. Ashcroft, Inc., et al., No. C17-5243 BHS (W.D. Wash. Sep. 19, 2017), Washington District Judge Benjamin H. Settle settled this dispute for now between the plaintiffs and three defendants over discovery disputes by denying the plaintiffs’ motions to compel against all three defendants, two of them without prejudice.

Case Background

In this case by the plaintiffs against several defendants alleging liability resulting from exposure to asbestos, the plaintiffs filed motions to compel against three defendants in July 2017, with all three defendants responding in August 2017, followed shortly by plaintiffs’ reply to each response.

With regard to defendant Weir, the parties’ dispute stemmed over Weir’s search of its electronic database.  The plaintiffs sought information on “any and all Atwood-Morrill valves on the Kitty Hawk and the Peleliu at any time, as well as any of its valves and replacement parts sent to PSNS in 1976 and 1977 when Mr. Blosser was working there”, but Weir contended that its database is not searchable by ship name or hull number and that doing a manual review would be “incomprehensible.”

With regard to defendant William Powell, the plaintiffs moved for an order (1) striking the boilerplate objections, (2) compelling William Powell to fully produce relevant documents, and (3) produce a 30(b)(6) deponent (the parties ultimately resolved the 30(b)(6) issue, so the Court denied this portion of the motion as moot).  Regarding the request for production, William Powell asserted that “it has no documents responsive to [the Blossers’] requests”, but the plaintiffs submitted deposition testimony from 2009 and asserted that William Powell must have relevant documents because its website “makes clear that it has an available database from which to mine information.”

With regard to defendant Flowserve, the dispute existed over determining a date for the 30(b)(6) deposition as well as the date for Flowserve to produce documents.

Judge’s Ruling

With regard to defendant Weir, Judge Settle observed that “it is unclear whether the parties conferred or attempted to confer to resolve this dispute without Court action”, noting that the plaintiffs’ attorney threatened a motion to compel regardless of Weir’s attempt to comply with the discovery requests (“we would be filing a motion to compel regardless because our document requests were broader than the limitation Weir had unilaterally imposed.”) and citing an email exchange from Weir that included the exact same threat to file a motion to compel without any indication of a good faith attempt to resolve this dispute.  To this, Judge Settle said “This failure alone is sufficient to deny the motion to compel.”

However, briefly addressing the merits of the dispute anyway, Judge Settle indicated that he “agrees with the Blossers that the information it seeks seems relevant and readily identifiable” and noted that “Weir’s response seems rather illusive in that it asserts there is only one possible way to electronically search its database.”  So, Judge Settle denied the motion without prejudice and ordered the parties “to meet and confer on the issue of searching Weir’s database.”

With regard to defendant William Powell, Judge Settle denied the plaintiffs’ motion, stating: “The Court cannot compel a party to produce that which its attorney certifies it does not have in its possession. Stale testimony and speculation based on website advertisements do not overcome an attorney’s certification to the Court.”

With regard to defendant Flowserve, Judge Settle stated that “the Blossers have failed to show that a dispute exists that requires Court intervention”, noting that the plaintiffs’ attorney acknowledged that several dates had been proposed by both sides on the 30(b)(6) deposition and that Flowserve contended that it informed the plaintiffs that it will “make responsive documents available at a mutually agreeable time and location” and that the “invitation remains outstanding.”  So, Judge Settle denied the plaintiffs’ motion without prejudice.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

So, what do you think?  What should parties be required to do to demonstrate to the court that their opponent has responsive data it’s not producing?  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.

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 Opts for Lesser Sanction for Failure to Preserve Electronic Vehicle Data: eDiscovery Case Law

In Barry v. Big M Transportation, Inc., et al., No. 1:16-cv-00167-JEO (N.D. Ala. Sep. 11, 2017), Alabama Chief Magistrate Judge John E. Ott denied the plaintiffs’ request for default judgment sanctions for failing to preserve a tractor-trailer involved in an automobile accident and its “Electronic Data/Electronic Control Module (ECM) Vehicle Data Recorder/Black Box” and the data associated with the ECM device.  As an alternative sanction, Judge Ott indicated the intent to tell the jury that the ECM data was not preserved and to allow the parties to present evidence and argument at trial regarding the defendant’s failure to preserve the data.

Case Background

In this case arising out of a motor vehicle accident which was filed in Alabama state court and then removed to federal court, the plaintiffs sought to recover compensatory and punitive damages for their injuries and asserted claims against the trucking company and the driver of the truck.  Both defendants filed a motion for summary judgment on the plaintiffs’ claims and the plaintiffs filed a motion for partial summary judgment on the defendants’ affirmative defenses of contributory negligence, assumption of the risk, and intervening cause, as well as a “spoliation sanction” in the form of either a default judgment on the defendants’ negligence liability or an order judicially establishing certain facts against the defendants.

As a part of their motion for partial summary judgment, the plaintiffs requested a spoliation sanction against the defendants for their failure to preserve the tractor’s ECM data following the accident (or the tractor for that matter, which was sold), moving for either a default judgment on the defendants’ negligence liability or an order by the Court establishing “the speed [at] which {the driver} was driving and the maneuvers he made in the light most favorable” to the plaintiffs. In response, the defendants argued that the failure to preserve the ECM data was “well-reasoned and justifiable” and even if seen as not reasonable, didn’t warrant the imposition of sanctions. In addition, the driver defendant argued that he had no duty to preserve the tractor’s ECM data at the time of the accident or had any custody or control over the tractor following the accident.

Judge’s Ruling

In considering the request for sanctions, Judge Ott found that “Big M—but not Shaffer—is guilty of spoliation. Big M’s corporate representative, Benton Elliott, confirmed that it is Big M’s normal practice to retrieve the ECM data from a tractor if they know a collision is severe, and he admitted that there was nothing preventing Big M from preserving the ECM data in this instance.”

However, Judge Ott indicated that he was “unwilling to impose either of the severe sanctions requested by the Barrys for a number of reasons”, including 1) he was “not convinced that Big M acted with the intent to deprive the Barrys of the use of the ECM data”, that 2) “it was Big M’s impression that the Barrys were at fault for the accident”, that 3) “the Barrys have not been prejudiced to such an extent that the severe sanctions they have requested would be warranted” and 4) “the Barrys have not shown that Shaffer bears any responsibility for the loss of the ECM data.”

As a result, Judge Ott ruled that “the Barrys’ request for spoliation sanctions will be denied to the extent they have asked the Court to enter a default judgment on the Defendants’ negligence liability or, alternatively, to enter an order judicially establishing the speed at which Shaffer was driving and the maneuvers he made prior to impact in the light most favorable to the Barrys. However, as an alternative sanction, the Court intends to tell the jury that the ECM data was not preserved and will allow the parties to present evidence and argument at trial regarding Big M’s failure to preserve the data.”

So, what do you think?  Is that a sufficient sanction for failing to preserve the truck and the ECM data?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

Case opinion link courtesy of eDiscovery Assistant.

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 Adds Some of the Custodians Requested by Plaintiffs to Discovery, But Not All: eDiscovery Case Law

In Mann, et al. v. City of Chicago, et al, Nos. 15 CV 9197, 13 CV 4531 (N.D. Ill. Sep. 8, 2017), Illinois Magistrate Judge Mary M. Rowland granted in part and denied in part the plaintiffs’ Motion to Compel the defendant to include certain custodians in their email search, ordering the defendant to search emails of five additional custodians (including the Mayor of Chicago), but not requiring the defendant to search emails for an additional three custodians requested by the plaintiff.  Judge Rowland also denied the plaintiffs’ request for sanctions, finding that the defendant’s conduct was not sanctionable.

Case Background

In this consolidated case involving alleged unconstitutional Chicago police (CPD) practices at “off the grid” facilities (including one known as “Homan Square”), the parties agreed on several discovery related items, including search terms and the majority of custodians.  The parties also agree that discovery would include the Mayor’s Office, but “reached an impasse” on which custodians in the Mayor’s Office should be searched, with the plaintiffs’ arguing that Mayor Emanuel and ten members of his senior staff were relevant to the plaintiffs’ Monell claim.  In response, the defendant argued that the plaintiffs’ request was burdensome, and that the plaintiffs “have failed to provide any grounds to believe that the proposed custodians were involved with CPD’s policies and practices at Homan Square”, proposing instead that it search the two members of the Mayor’s staff responsible for liasoning with the CPD and leave “the door open for additional custodians” depending on the results of that search.

Judge’s Ruling

With regard to the parties’ dispute over whether the Mayor was a “policymaker” for the City with regard to the use of the Homan Square facility, Judge Rowland stated: “On summary judgment or at trial, Plaintiffs will have to provide evidence that ‘the unlawful practice was so pervasive that acquiescence on the part of policymakers was apparent and amounted to a policy decision’ or that a policymaking official responsible for final government policy on the police practices at issue directed the particular conduct that caused Plaintiffs’ harm…But at this stage Plaintiffs do not have to establish that the Mayor was a policymaker or had final authority on the police practices at issue or that there is a ‘nexus’ between the custodians of the emails and CPD’s alleged activities at Homan Square.”

Judge Rowland also noted that the defendant had identified the two custodians “as the most likely holders of responsive emails…But in light of the allegations in the complaint, the Mayor and his upper level staff also might have responsive emails.”  She also rejected the defendant’s argument that the additional custodians would be burdensome, noting that “[t]he City does not offer any specifics or even a rough estimate about the burden.”

As a result, Judge Rowland ordered the defendant to search emails of five additional custodians (including the Mayor of Chicago), but did not require the defendant to search emails for an additional four custodians requested by the plaintiff “because of the short tenure of the staff person or the time during which the person held the position”.  She also denied the plaintiffs’ request for sanctions against the defendant, stating: “The Court does not view the City’s conduct as sanctionable and both parties’ diligent efforts to work together shows that ‘other circumstances make an award of expenses unjust.’”

So, what do you think?  Might the defendant have had a better result if it had provided at least an estimate of the burden?  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.

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.

Google Goes 0 For 2 in its Request for Review of SCA Warrant Cases: eDiscovery Case Law

As Tom O’Connor and I discussed last week in our ACEDS webinar Key eDiscovery Case Law Review for First Half of 2017 (here’s a link if you missed it), Google was ordered earlier this year to produce foreign stored emails by judges in California and Pennsylvania in response to government warrants.  Last month, Google’s request for review on the two cases (and interpretation of Section 2703 of the Stored Communications Act of 1986) didn’t change the results.

With regard to In re Search Warrant No. 16-960-M-1 to Google; In re Search Warrant No. 16-1061-M to Google, MJ Nos. 16-960, 16-1061 (E.D. Pa. Aug. 17, 2017), Pennsylvania District Judge Juan R. Sànchez considered Pennsylvania Magistrate Judge Thomas J. Rueter’s February ruling which ordered Google to comply with a search warrant to produce foreign-stored emails, disagreeing with the Second Circuit’s ruling in the Microsoft Ireland warrant case, where Microsoft was not ordered to provide access to emails in that ruling.  In considering Google’s request to review Judge Rueter’s order, Judge Sànchez stated:

“The issue in this case is whether enforcing the SCA warrants in question to require Google to produce communications and other subscriber data stored on servers located outside the United States constitutes an extraterritorial application of the statute. In analyzing this issue, the Court starts with the presumption against extraterritoriality, “a longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’””

With that in mind, Judge Sànchez, in upholding the Magistrate Court decision, ruled that “Even if the steps taken by a provider to search for, access, and retrieve subscriber communications for eventual disclosure to the government were conduct relevant to § 2703’s focus, this Court has considerable difficulty with Google’s assertion that, where the communications in question are stored in foreign data centers, the ‘vast majority’ of this conduct occurs outside of the United States…By Google’s own account, the search and retrieval process consists of a series of queries initiated by Google personnel in the United States to which servers in the targeted data centers respond….While these queries may be run on servers in Google’s foreign data centers, it is difficult to see how this amounts to conduct by Google at the location of the data center, given that the United States-based employees direct the search and retrieval process remotely, without involvement by any personnel located abroad…That the subscriber’s communications are accessed only by—and can be accessed only by—Google personnel in the United States, and are produced by such personnel in the United States, reinforces the conclusion that the only conduct involved in the search and retrieval process occurs domestically.”

With regard to In the Matter of the Search of Content Stored at Premises Controlled by Google Inc. and as Further Described in Attachment A, No. 16-mc-80263-RS (N.D. Cal. Aug. 14, 2017), Google moved for de novo review of California Magistrate Judge Laurel Beeler ‘s determination “the disclosure is a domestic application of the SCA.”  California District Judge Richard Seeborg, in considering the same issues, ruled:

“As to the question of whether Google is undertaking essential aspects of compliance with section 2703 outside the United States, the answer is no. As a factual matter, the information sought by the government is easily and lawfully accessed in the United States, and disclosure of that content would likewise take place in the United States. Indeed, only personnel in Google’s Legal Investigations Support team are authorized to access the content of communications in order to produce it in response to legal process and all such Google personnel are located in the United States…Accordingly, the conduct relevant to the SCA’s focus occurs in the United States.”

I’m sure we haven’t heard the last of either of these cases yet, just like it appears we haven’t heard the last of the Microsoft Ireland warrant case yet either.

So, what do you think?  Should the location of the data or the location of the searches for the data determine whether it is subject to foreign data privacy considerations? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion links courtesy of eDiscovery Assistant.

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.