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Case Law

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Orders Defendant to Produce Additional ESI Responsive to 78 “Unopposed” Search Terms: eDiscovery Case Law

In Venturdyne, Ltd. d/b/a Scientific Dust Collectors v. Carbonyx, Inc., d/b/a Carbonyx Carbon Technologies, et. al., No. 14-00351 (N.D. Ind., Nov. 15, 2016), Indiana District Judge John E. Martin ordered the defendant to produce additional ESI to the plaintiff to be retrieved via 78 “unopposed” search terms that neither party objected to during negotiation over the plaintiff’s original list of 126 search terms.

Case Background

In this breach of contract case, the parties agreed to use keywords to search the defendant’s electronically stored information (ESI) and the defendant turned over sample emails related to the case to help determine what keywords would be appropriate.  On February 25, 2016, the plaintiff’s counsel sent the defendant’s counsel a list of 126 keywords to use for retrieving ESI.  On March 10, the defendant’s counsel sent an email to the plaintiff striking 20 search terms from the list and, on April 28, the plaintiff’s counsel responded by voluntarily removing 28 additional terms, leaving 78 terms and also objecting to 7 of the 20 terms deleted by the defendant.  In all, neither party objected to 78 of the original 126 search terms during this negotiation.

The plaintiff’s counsel sent the defendant’s counsel follow-up emails on May 6, May 24, June 3, June 13, and June 30 and the defendant’s counsel did not respond to any of those emails, causing the plaintiff to file a Motion to Compel on July 12.

Judge’s Ruling

While noting that “Carbonyx contends that it has produced ‘more than 12,000 pages of documents, consisting of emails and their attachments, as well as paper documents’”, Judge Martin also noted that “these documents were generated using the search terms ‘Scientific Dust Collectors’ – the name Venturdyne does business under – and ‘Scientific.’” (those terms happen to be redundant, by the way, as the second term would would include the results of the first term – just sayin’)  But, he also noted that “Carbonyx’s assertion that the documents it has already produced…are completely responsive is not convincing.”

As a result, Judge Martin stated:

“Accordingly, Carbonyx must produce documents flagged by the 78 unopposed search terms contained in DE 48-7. Those terms appear ‘reasonably calculated to lead to discovery of admissible evidence’ in that the terms were based on sample emails related to this case and the parties already eliminated many generic words like ‘money.’”

Judge Martin also noted that “the court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.”  So, he ordered the plaintiff to file an itemization of its costs and fees, including attorney’s fees, incurred in making the Motion to Compel by November 21, with the defendant to file a response by December 5 and the plaintiff to file a reply to that by December 12.

So, what do you think?  Would the ruling have turned out differently if the defendant had continued to work with the plaintiff?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Supreme Court Gives Samsung an Early Christmas Present – For Now: eDiscovery Case Law

We almost made it the entire year without an update on the ubiquitous Apple v. Samsung case.  Thanks to the U.S. Supreme Court, this long lasting case isn’t done yet.

As reported earlier this week by Greg Stohr of Bloomberg Law (Supreme Court Orders New Look at Apple’s Award From Samsung), the Supreme Court, in a unanimous opinion (8-0) told a federal appeals court to take another look at a $399 million award won by Apple from Samsung for copying the design of the iPhone.

Writing for the court, Justice Sonia Sotomayor said Apple might not be entitled to Samsung’s entire profit on 11 infringing smartphones. She told a federal appeals court to consider whether Apple should be able to recoup profits attributable only to particular components, a question which SCOTUS did not address.  Sotomayor said the lower court’s approach “cannot be squared with the text” of the federal patent statute. Design patents, which cover the ornamental look of an object rather than any functional aspect, are increasingly used by tech companies and makers of consumer products to differentiate their products from competitors. Believe it or not, SCOTUS hadn’t considered design patents since disputes involving spoon handles in the 1870s and carpets in the 1890s.  Technology has advanced a bit since then.

Google, Facebook Inc., EBay Inc. and Hewlett Packard Enterprise Co. said in filings that a victory for Apple would allow owners of design patents to extract unfair rewards on products that can have hundreds or even thousands of features.

We’ve covered Apple v. Samsung several times over the years, from our first post covering an adverse inference sanction that Samsung received in 2011 for failing to turn off “auto-delete” of emails after the case began to “patentgate” and the resulting $2 million sanction for an inadvertent disclosure made by Samsung’s outside counsel firm to our most recent post last year where we reported yet another stay that Samsung received in having to pay damages.  This case has it all: two tech titans going at it for 5+ years (so far) and eDiscovery failures as well.  Gotta love it.

In a year where it had to scrap production of its Note 7 device because of exploding batteries (a new report just released by a manufacturing tech company claims the design of the battery was too “aggressive”), Samsung does at least get some good news before the end of the year.  At least for now.

So, what do you think?  Will this case ever end?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Finding Categorical Privilege Log to Be Inadequate, Court Orders Plaintiff to Provide a Metadata Log: eDiscovery Case Law

In Companion Property and Casualty Insurance Company v. U.S. Bank N.A., No. 15-01300 (D. S.C., Nov. 3, 2016), South Carolina District Judge J. Michelle Childs determined that the plaintiff’s categorical Privilege Log was inadequate and ordered the plaintiff to provide to the defendant a metadata log for all documents withheld or redacted, affidavit(s) from the person(s) with knowledge regarding the privileged third party and common interest parties and a list of anticipated litigation(s) for the documents withheld on the basis of work product protection.

Case Background

In this case where the plaintiff alleged breach of contract and breach of fiduciary duty over the substantial decrease in value of trusts associated with use of the plaintiff’s insurance program, the defendant initially moved for an order compelling the plaintiff to produce a more-detailed “document-specific privilege log of redacted and withheld documents” which pre-date February 14, 2014 and also requested that “with respect to any work product claims,” the plaintiff should provide information regarding “what litigation it anticipated, when the litigation was anticipated, the facts that caused . . . [Plaintiff] to anticipate the litigation, and how that anticipation drove the creation of the withheld document.”

In responding, the plaintiff argued it submitted a categorical privilege log, which the parties “expressly” agreed was acceptable and that the parties had agreed that privilege logs did not need to identify redacted documents in which the asserted privilege was evident on the face of the document.  The defendant then changed the requested relief in its Motion to Compel to request a metadata log of each withheld document, including dates of communications, date created, document custodian, to/from/cc information, and subject lines for emails and certain specific communications from a key third party.  The plaintiff agreed to produce the metadata log, but was adamant that all communications with a key third party were protected by the attorney-client privilege.  The defendant accepted that proposal in part, but asked the court to require production of the agreed-upon information earlier than the plaintiff proposed, review certain communications from the key third party to determine if privilege had been properly withheld and require the plaintiff to attach to the list of anticipated litigations “an affidavit stating the point in time it anticipated such litigation, the facts that caused it to anticipate such litigation and describe the categories and types of documents that were created in anticipation of such litigation”.

Judge’s Ruling

Judge Childs noted that “To comply with the requirements set forth in Rule 26(b)(5)(A), a party seeking protection from producing documents must produce a privilege log that ‘identifies each document withheld, information regarding the nature of the privilege/protection claimed, the name of the person making/receiving the communication, the date and place of the communication, and the document’s general subject matter.’”  With that in mind, Judge Childs ruled:

“Upon review of the Categorical Privilege Log in the context of Defendant’s complaints, the court finds that Plaintiff’s log does not allow Defendant or the court to test the applicability of the attorney-client privilege and/or work product protection as to each document sought to be withheld. Accordingly, the court concludes that Plaintiff’s Categorical Privilege Log is inadequate.”

As a result, Judge Childs ordered the plaintiff to provide to the defendant on or before November 18, a metadata log for all documents withheld or redacted dated before February 14, 2014, affidavit(s) from the person(s) with knowledge regarding the privileged third party and common interest parties and a list of anticipated litigation(s) for the documents withheld on the basis of work product protection dated before February 14, 2014.

So, what do you think?  Are categorical privilege logs generally sufficient enough to communicate to parties what it being withheld and why?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

With No Proof of Duty to Preserve or Bad Faith, Plaintiffs’ Request for Sanctions is Denied: eDiscovery Case Law

In Reyes et. al. v. Julia Place Condominiums Homeowners Association, Inc., et. al., No. 12-2043 (E.D.L.A., Oct. 7, 2016), Louisiana District Judge Carl J. Barbier, in denying the plaintiffs’ request for sanctions, stated that the plaintiffs “have failed to produce sufficient evidence proving that [defendant] Parkview had a duty to preserve the ledgers, that Parkview acted in bad faith in destroying the ledgers, and that the destroyed evidence was relevant to Plaintiffs’ claim”.

Case Background

In this class action lawsuit brought by condominium owners throughout New Orleans against their various condo associations alleging debt collection practices that violate state and federal law, the Court had previously certified a “a class of past and present condominium owners who have paid allegedly usurious late fees”.  During the course of the litigation, one of the defendants (Parkview Condominium Homeowners Association) filed a motion for summary judgment, stating that that the plaintiffs had not introduced any evidence that a current or former Parkview unit owner paid an allegedly usurious fee, so Parkview should be dismissed from the lawsuit.

In response, the plaintiffs argued that they were entitled to an adverse inference sanction due to Parkview’s “intentional” destruction of ledgers that would have proven Parkview condominium unit owners paid allegedly usurious late fees.  The plaintiffs had made a similar request for these ledgers and an adverse inference sanction in a motion to compel in Magistrate Court and that motion was denied.

Here, the plaintiffs claimed that they first requested this information in September 2012 and, in response to this request, “Parkview threatened sanctions . . . but never provided this critical evidence.”  The plaintiffs also argued that Parkview did not initially contend that the documents were lost or otherwise unavailable, but simply refused to comply with the plaintiffs’ request.  In response, Parkview stated it informed the plaintiffs that it was not in possession of that information, because the documents were “inadvertently destroyed prior to the commencement of this litigation. There were no backups of any of the files that were located on the damaged computer and hard drive.”  Parkview also contended that it had no duty to preserve that information, noting that it was unreasonable to believe that the originally named plaintiff, who was never an owner at Parkview, would sue Parkview and seek ledgers for the two years preceding the litigation.

Judge’s Ruling

In ruling on the plaintiff’s request for sanctions, Judge Barbier stated:

“Plaintiffs have failed to produce sufficient evidence proving that Parkview had a duty to preserve the ledgers, that Parkview acted in bad faith in destroying the ledgers, and that the destroyed evidence was relevant to Plaintiffs’ claim. Plaintiffs ask this Court to infer that Parkview intentionally, and in bad faith, destroyed its ledgers solely because Parkview did not initially tell Plaintiffs that it had inadvertently destroyed the ledgers prior to litigation…This is a leap this court is unwilling to make. Accordingly, the Court finds that Plaintiffs are not entitled to an adverse inference for purposes of this motion nor trial.”

Also, observing that “[n]otably absent from Plaintiffs’ evidence is anything demonstrating that a past or present condominium unit owner has paid an allegedly usurious late fee”, Judge Barbier granted Parkview’s Motion for Summary Judgment, dismissing Parkview from the case.

So, what do you think?  Did the plaintiff make too big a leap in assuming “intentional” destruction of the ledgers?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Defendant Sanctioned for Failing to Preserve Text Messages and Failing to Produce Native Format Data: eDiscovery Case Law

In First Financial Security, Inc. v. Freedom Equity Group, LLC, No. 15-1893 (N.D. Cal., Oct. 7, 2016), California Magistrate Judge Howard R. Lloyd issued permissive adverse inference instruction sanctions against the defendant for deleting relevant text messages “with the intent to deprive” the plaintiff of the use of those text messages and for failing to produce native-format data that it was repeatedly ordered to produce.  Judge Lloyd declined to sanction the defendant for spoliation of phone records or employment applications.

Case Background

In this case, the plaintiff sued the defendant for intentional interference with contract and related violations of California’s Unfair Competition Law (“UCL”), alleging the defendant induced approximately 1,400 sales contractors to leave the plaintiff and join the defendant “en masse”.  The parties filed a Discovery Dispute Joint Report after the defendant had “concededly” failed to produce requested discovery materials, including: (1) text messages possessed by defendant principals; (2) employment applications submitted by former plaintiff contractors; (3) native-format copies of digital data related to the circumstances in which the defendant hired the former plaintiff contractors; and (4) phone records. The court, based on the defendant’s conceded failure to comply with its discovery obligations and absent any substantive opposition, ordered the defendant to produce the discovery materials requested.

After the defendant still failed to produce all of the above, the plaintiff filed its sanctions motion.  The defendant conceded in its opposition brief that the texts “were deleted”, but argued that these texts were “innocently” deleted by people who did not understand their discovery obligations. The defendant also asserted: (1) the phone records were deleted by the phone company because those records “are kept only for a year”; (2) there is no native-format data to produce, because the data “is a data base” that can be reviewed through “a query”; and (3) the defendant never possessed any employment applications, because the information in any given employment application is digitally submitted directly to a “data base” and no application document is separately retained.

After oral arguments where the defendant conceded it produced a physical spreadsheet instead of producing native-format copies of the underlying data; the court ordered the defendant to produce, instead, the native-format data.  In response, the defendant issued a declaration stating that it did not have possession of the data because it relied upon third party software service providers to receive and store the data, that it has changed providers and the original provider had no obligation to turn over the data without a court order.

Judge’s Ruling

Judge Lloyd, ruling that the duty to preserve evidence arose no later than January of 2014 (when the defendant warned its employees that there would be a lawsuit), was “persuaded that FEG had an obligation to preserve text messages in the anticipation or conduct of litigation, that FEG took no reasonable steps to preserve text messages,…that those messages cannot be restored or replaced through additional discovery and that FEG’s agents acted with the intent to deprive FFS of the use of the deleted text messages.”

Also, noting that “[t]he court twice ordered FEG to produce the native-format data sought by FFS”, Judge Lloyd determined that “FEG has misled and prejudiced FFS in the course of FFS’s attempts to discover native-format copies of electronically stored data” relating to the case, further noting that the defendant had raised the claim that it lacks possession, custody, and control of the data “far too late.”

As a result of the deletion of text messages and the failure to produce the native-format data, Judge Lloyd issued permissive adverse inference instruction sanctions against the defendant, “because mandatory inferences are not necessary to remedy the prejudice FFS has suffered.”  Judge Lloyd declined to issue sanctions with respect to the phone records and the employment applications, failing to find intent to deprive for the former and finding that actual documents were not created in the latter.

So, what do you think?  Was a permissive adverse inference instruction a severe enough sanction?  Please share any comments you might have or if you’d like to know more about a particular topic.

If you’re in Houston, don’t forget that tonight is “Drinks with Doug” at The Tasting Room – CityCentre.  Click here to find out how to RSVP.  Hope to see you there!

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 Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Orders Forensic Examination of Key Custodian Computers: eDiscovery Case Law

In Davis v. Crescent Electric Company et. al., No. 12-5008 (D. S.D., Oct. 12, 2016), South Dakota District Judge Lawrence L. Piersol ruled that a non-disclosure agreement would sufficiently protect any and all confidential and/or privileged information of the defendant that may be uncovered during the forensic examination for key custodians and that the information being requested by the plaintiff was relevant and not overly broad.

Case Background

In this employment discrimination case, the plaintiff filed a Motion to Compel the defendant (her former employer) in August 2015 to produce Outlook PST files from the defendant’s server, from the plaintiff’s work computer and from the defendant’s Outlook archives to learn “how Julie Skinner/Stienstra had access to Lisa A. Davis’ email in order to print them.”  The court granted the motion in April 2016, and in August 2016, the plaintiff requested that the defendant provide access to the key custodians’ computers for a forensic examination.  The defendant refused, citing concerns that “unfettered investigation” on the computers “may provide access to confidential information and privileged communications, and it is beyond the scope of the Court’s Order and the relief requested.”  That same day, counsel for the plaintiff suggested having the forensic examiner execute a non-disclosure agreement and further requested that the defendant’s internet technician contact the forensic examiner as soon as possible “so this matter can be resolved without further court intervention.”

The defendant’s technician provided only of the email data requested, indicating that was the only data he was told to provide and that any other email data would have to be requested from counsel. The plaintiff’s counsel did just that, but the defendant’s counsel refused, reiterating the position that the information was beyond the scope of the order and the data may contain confidential and privileged information. As a result, the plaintiff filed a supplemental Motion to Compel.

Judge’s Ruling

Referencing Rule 37(a)(3)(B)(iv), Judge Piersol noted that, ultimately “[c]ourts consider the prior efforts of the parties to resolve the dispute, the relevance of the information sought, and the limits imposed by Rule 26(b)(2)(C) when deciding whether to grant a motion to compel.”  With regard to the plaintiff’s counsel effort to resolve the issue by offering to have the forensic examiner sign a non-disclosure agreement and the defense counsel’s refusal of that offer, Judge Piersol stated:

“First, CESCO does not explain how or why a non-disclosure agreement would not quell its fears of disclosure of confidential and/or privileged information. CESCO simply makes general claims concerning the disclosure of such information. Second, the computer that Davis seeks to examine is a business computer that is unlikely to contain any personal information. Therefore, without more of an explanation by CESCO as to what it seeks to protect and why it seeks to protect it, the Court finds that a non-disclosure agreement executed by Mr. Sevel will sufficiently protect any and all confidential and/or privileged information that may be uncovered during the forensic examination of Julie Stienstra/Julie Skinner’s computer and associated export logs.”

With regard to the relevance of the information sought, Judge Piersol noted that the plaintiff sought a forensic examination to determine the authenticity of a claimed fake email and that the plaintiff’s forensic examiner stated that “printed versions of emails, or email threads, cannot be considered to be forensically sound unless the original digital version can be examined for authenticity. In this situation, a review of the PST file containing the original emails and emails threads, with their associated metadata, is needed”.  Finding also that the defendant’s claim that the plaintiff’s request was overly broad to be “without merit”, Judge Piersol granted the plaintiff’s Supplemental Motion for an Order to Compel with the plaintiff’s forensic examiner to execute a non-disclosure agreement prior to his examination.

So, what do you think?  Should the forensic examination have been ordered?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Defendant Not Required to Use Predictive Coding by Court: eDiscovery Case Law

Regardless how the election turned out last night, eDiscovery case law marches on…

In the case In re Viagra Products Liability Litigation, 16-02691 (N.D. Cali., Oct. 14, 2016), California Magistrate Judge Sallie Kim, noting that other courts had declined to force a party to use predictive coding, denied the plaintiff’s motion to force the defendant to use predictive coding instead of its preferred approach using search terms.

Case Background

In this multi-district litigation (MDL) against drug company Pfizer regarding its highly popular drug Viagra and alleged correlations to incidences of melanoma, the plaintiffs urged the Court to order the defendant to use predictive coding with the plaintiffs’ input to identify the locations of relevant information and the responsive ESI from those locations. The plaintiffs argued that TAR and/or predictive coding is a more sophisticated tool than the traditional search term or search query approach, that using that suggested approach would save time and money for both sides and indicated that they wanted representatives from both parties to participate in process of creating and working with the search process in this iterative process.

The defendant offered stiff opposition to the plaintiff’s request (sorry, I couldn’t resist) proposing instead that it use search terms to identify potentially relevant documents. The defendant described its preferred methodology as an iterative process – though not the same iterative process as TAR and/or predictive coding – where the defendant tests search terms and validates them using rigorous sampling of potentially responsive documents, verifying that the search terms yield high rates of response. In the defendant’s proposed process, the parties would exchange lists of proposed search terms and the defendant would agree to run any search terms that appeared on both parties’ lists.

The defendant pointed out that the plaintiffs did not cite to any case law in support of their proposal to require the defendant, over its objection, to use TAR and/or predictive coding. At the hearing on the matter, the plaintiffs conceded that no court has ordered a party to engage in TAR and/or predictive coding over the objection of the party.

Judge’s Ruling

Adding to the plaintiff’s concession, Judge Kim noted that “[t]he few courts that have considered this issue have all declined to compel predictive coding”.  Judge Kim cited Hyles v. New York City, stating:

“As the court reasoned in Hyles, the responding party is the one best situated to decide how to search for and produce ESI responsive to discovery requests.  The responding party ‘can use the search method of its choice. If [the propounding party] later demonstrates deficiencies in the . . . production, the [responding party] may have to re-do its search. But that is not a basis for Court intervention at this stage of the case…[I]t is not up to the Court, or the requesting party . . ., to force the . . . responding party to use TAR when it prefers to use keyword searching. While [the propounding party] may well be correct that production using keywords may not be as complete as it would be if TAR were used . . ., the standard is not perfection, or using the ‘best’ tool . . ., but whether the search results are reasonable and proportional.”

In denying the plaintiffs’ motion, Judge Kim concluded: “The Court finds Hyles well-reasoned. Even if predictive coding were a more efficient and better method, which Pfizer disputes, it is not clear on what basis the Court could compel Pfizer to use a particular form of ESI, especially in the absence of any evidence that Pfizer’s preferred method would produce, or has produced, insufficient discovery responses.”

So, what do you think?  Should a court ever require a party to use a particular method to search for and produce ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Plaintiff Must Cooperate on Search Terms, Says Court: eDiscovery Case Law

In Pyle v. Selective Insurance Company of America, No. 2:16-cv-335 (W.D. Pa. Sept. 30, 2016), Pennsylvania Senior District Judge Terrence F. McVerry granted the defendant’s Motion to Compel Plaintiff to Provide ESI Search Terms “insofar as it seeks to compel Plaintiff to confer and come to an agreement on the search terms Defendant will use to cull through the additional email archives that Defendant has identified as having been retrieved.”

Case Background

In this case, plaintiff’s counsel served the defendant with a Request for Production of Documents in July 2016, which sought “all emails, correspondence, memorandum, and/or other documents” from various defendant employees relating to the plaintiff’s employment, particularly her receipt of disability benefits and the termination of her employment. The defendant responded by providing some relevant documents and also advised Plaintiff that “[i]n addition to the documents produced, additional email archives for various Selective employees have been retrieved”,  requesting that “Plaintiff agree with Defendant on appropriate electronic search terms to be used to located [sic] any relevant documents therein.”  After plaintiff’s counsel refused, defendant’s counsel e-mailed plaintiff’s counsel again in early September asking for a “suggested list of search terms . . . so that we can agree on a common set of terms so that the electronic records [Selective] has gathered can be searched for relevance.”  Plaintiff’s counsel responded by saying that the requests “are not requests for access to the email accounts of the individuals referenced in these requests that would necessitate our providing search terms and/or a protocol for the review of these accounts.”

Not satisfied with that response, the defendant filed a motion seeking an order compelling the plaintiff to provide ESI search terms or else relieving Defendant of the obligation to produce any ESI.  The plaintiff objected, arguing that the defendant cited no authority to support its request, nor identified any burden that it faces in locating and producing the requested emails.

Judge’s Ruling

In response to the plaintiff’s argument, Judge McVerry’s stated:

“Plaintiff’s argument totally misses the mark; in fact, it borders on being incomprehensible. Far from being baseless, Defendant’s request is entirely consistent with both the letter and spirit of the Federal Rules of Civil Procedure regarding the discovery of electronically stored information and this Court’s Local Rules. It is well settled by now that ‘electronic discovery should be a party-driven process.’…The Federal Rules expressly require counsel to meet and confer on ‘any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced[.]’ Fed. R. Civ. P. 26(f)(3)(C). ‘Among the items about which the court expects counsel to `reach practical agreement’ without the court having to micro-manage e-discovery are `search terms, date ranges, key players and the like.’’…Indeed, this principle is incorporated into this Court’s Local Rules, which direct counsel to ‘meet and confer, and attempt to agree, on the discovery of ESI, including . . . an ESI search protocol, including methods to filter data, such as application of search terms or date ranges.’”

As a result, Judge McVerry granted the defendant’s motion “insofar as it seeks to compel Plaintiff to confer and come to an agreement on the search terms Defendant will use to cull through the additional email archives that Defendant has identified as having been retrieved.”  Judge McVerry denied the defendant’s Motion to Compel Production of Medical Records and Executed HIPAA Authorizations as “premature” since the 30 day time period for the plaintiff to respond had not yet elapsed.

So, what do you think?  Should receiving parties be required to negotiate search terms with producing parties?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Searching Only File Names is Not the “Safe Way” to Avoid Sanctions: eDiscovery Case Law

See what I did there?… :o)

In Rodman v. Safeway, No. 11-cv-03003-JST (N.D. Cal., Oct. 6, 2016), California District Judge Jon S. Tigar ordered the defendant to pay plaintiff’s Class Counsel $688,646 as a discovery sanction under Rule 26(g), ruling that “failure to search within the contents of the legacy drive constituted an unreasonable inquiry”, but denied without prejudice the plaintiff’s request for a negative jury instruction.

Case Background

In this certified class action for breach of contract, the Court previously granted the plaintiff’s motion for partial summary judgment that the defendant breached its contract with class members who registered to shop online after 2006 “by charging higher prices for groceries on its online Safeway.com delivery service than it charged in the stores where the groceries were selected.” After the Court denied the plaintiff’s motion for partial summary judgment regarding pre-2006 liability, only one issue remained to be tried: whether class members who registered for the delivery service prior to 2006 had agreed to the same contract as class members who registered after 2006.

Trial was scheduled to begin on October 6, 2015. Approximately seven days before that date, the defendant produced ten highly relevant documents related to its pre-2006 terms and conditions. The documents were found on a “legacy” computer drive by the defendant’s Director of Marketing, Steve Guthrie, who was reviewing that drive in anticipation for trial. Apparently, Guthrie’s initial search of the legacy drive did not involve a search within the contents of the files, but rather merely searched for file names within the legacy drive. Guthrie did not find the ten documents-in-question until approximately ten days before trial – over five months after fact discovery closed on April 24, 2015. Ultimately, the parties stipulated that the Court’s prior summary judgment orders were equally applicable to Class members who registered before January 1, 2006 and in November 2015, the Court issued a Judgment in favor of the certified class in the amount of $30,979,262 in damages and $10,905,505 in prejudgment interest, for a total of $41,884,767. The defendant appealed.

On April 6, 2016, Plaintiff filed a motion for discovery sanctions under Rule 26(g) based primarily on the defendant’s “false and inaccurate statements” in response to interrogatories and document requests “concerning the non-existences of documents reflecting historic copies of” the defendant’s pre-2006 terms and conditions. The Court held a hearing on the motion on August 25, 2016.

Judge’s Ruling

Judge Tigar disagreed with the defendant that its inquiry was unreasonable, stating “Although there is no indication of bad faith in Safeway’s inability to find the ten responsive documents during fact discovery, the Court concludes that Safeway’s initial search of the legacy drive was unreasonable”, giving three reasons that the inquiry was unreasonable:

  1. There was “no indication that Safeway’s counsel guided or monitored Mr. Guthrie’s search of the legacy drive in any significant way”;
  2. There was no evidence that Guthrie had any experience searching large repositories; and
  3. The evidence indicated that the search was objectively unreasonable.

Ultimately, Judge Tigar concluded that the defendant’s failure to search within the contents of the legacy drive constituted an unreasonable inquiry and that the defendant offered no substantial justification for its violation of Rule 26(g). The plaintiff requested attorneys’ fees totaling over $1 million, but Judge Tigar reduced that request by one-third, resulting in a fee award of $688,646. Judge Tigar also denied without prejudice the plaintiff’s request for a negative jury instruction, but indicated that the plaintiff may renew the request for a negative jury instruction should the Ninth Circuit remand this case for trial.

So, what do you think? Should the lack of finding of bad faith have resulted in a different outcome? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Dropped Cell Phone Does Not Lead to Spoliation Sanctions Under Amended Rule 37(e): eDiscovery Case Law

In Shaffer v. Gaither, No. 14-00106 (W.D. N.C., Sept. 1, 2016), North Carolina District Judge Max O. Cogburn, Jr. ruled that the sanction of dismissal requested by the defendant for the plaintiff’s lost text messages was disproportionate and denied the defendant’s Motion for Sanctions.

Case Background

The defendant filed an instant motion for dismissal based on destruction of electronically stored information (“ESI”).  The plaintiff contended that she was constructively discharged when she quit her job as an Assistant District Attorney due to sexual harassment by defendant and also claimed that defendant defamed her by telling others that she was fired for having a sexual relationship with a married member of the defense bar (which she admitted, but also contended was a falsely given reason for her termination).

The defendant contended that the text messages were lost in May 2014 when plaintiff dropped the cell phone in a bathroom and lost her text messages (a fact which the plaintiff did not deny) and that at the time the phone was destroyed, plaintiff and her counsel knew of the impending litigation, having threatened litigation in a letter nearly a year earlier, and that litigation was in fact filed the month following the phone’s destruction.  In arguing against dismissal, the plaintiff claimed that these texts were not relevant as the defendant did not read them until sometime after he decided to fire plaintiff (which he admitted, but claimed that his decision to fire the plaintiff came after the paramour’s spouse told him about the texts and the alleged affair).

In her affidavit, the plaintiff indicated that she no longer had the phone or the SIM card because when she broke her phone, she made a claim against her insurance, and her insurer required her to turn in both the broken phone and the SIM card (and the texts were not available from the provider).

Judge’s Ruling

In considering the defendant’s motion for dismissal, Judge Cogburn stated that “[u]nder recently revised Rule 37(e), the duty of a party to preserve ESI arises when litigation is ‘reasonably anticipated’ and the loss of ESI is sanctionable when ‘reasonable steps to preserve’ are not taken and such information cannot be restored or replaced through additional discovery.” However, he also noted that the “sanction of dismissal is not, however, a sanction of first resort” with Rule 37(e)(1) and Rule 37(e)(2) allowing the court “to take action no greater than necessary to cure the prejudice resulting from the loss” and that “Rule 37(e)(2) allows treatment of loss under spoliation only where party acted with an intent to deprive.”

While determining that “plaintiff and her counsel failed to take reasonable steps to preserve those texts as they apparently resided only on plaintiff’s phone”, Judge Cogburn said he “cannot conclude that plaintiff acted with an intent to deprive defendant of the ESI under Rule 37(e)(2); thus, spoliation does not yet come into play.”  However, noting that testimony could determine the content of those texts, Judge Cogburn indicated that the court “has not ruled out a spoliation or modified spoliation instruction, and reserved that for consideration after it has heard the evidence at trial.”

So, what do you think?  Would a dismissal sanction have been granted under the old rules?  Please share any comments you might have or if you’d like to know more about a particular topic.

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