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Appeals Court Upholds Terminating Sanctions For Wipe of Cell Phone: eDiscovery Case Law

In Woodell v. Bernstein, et. al., No. 14-2836 (Cal. App., Dec. 30, 2015), the California Court of Appeals affirmed the judgment of the trial court, which imposed terminating sanctions against the plaintiff for spoliation of evidence and dismissed his lawsuit with prejudice after the plaintiff had wiped his cell phone, which was key to the case.

Case Background

In this defamation case, the plaintiff claimed to have lost his cell phone while out walking his dog. One of the defendants found the cell phone on his front lawn near an uprooted sign endorsing his co-defendant for public office. The defendants notified the media and the police that they found the cell phone near the sign and claimed that the plaintiff must have removed the sign, which he denied and, eventually, sued the defendants for defamation.

During deposition of the plaintiff when he was asked for a photo that he had taken the night he lost his phone, he admitted that he had since wiped the phone, stating that “I’ve completely wiped the phone, as I do – did many times working for Google, putting new operating systems on. So whatever photo is – if I have it, I’ll be happy to produce it, but it’s certainly not on the phone anywhere.”  He ultimately indicated that he wiped out the contents of the phone “[s]ometime in early 2012.” He said he did that because the phone was “broken” and he “had to reinstall the operating system”.  When the defendants requested to inspect the phone and arranged to do so, the phone was provided uncharged with the charging connector damaged so that it could not be connected and charged.  In April 2014, the defendants filed a joint motion for terminating sanctions.

Trial Court’s Ruling

The trial court observed that the defendants provided “ample evidence” to show that the plaintiff delayed and obstructed their ability to inspect the phone and, when finally allowed to inspect it, the phone battery was dead and the charging mechanism had been irreparably damaged preventing the phone from being plugged into a charger.  The court added: “What is most disconcerting, however, is the action taken by [Woodell] prior to filing the lawsuit, which included allegedly capturing for his own purpose information from the phone favorable to his position, and then completely wiping clean the operating system such that all potentially relevant information retained on the phone was destroyed.”

The trial court also noted that the plaintiff, in his deposition, stated that he “wiped clean” the phone because he had done that “many times working for Google” but in his declaration he stated that Google instructed him to wipe out the “corrupted system.” In assessing the contradictory evidence, the court found that the plaintiff “was contemplating legal action in 2011, well before he destroyed the contents of the phone in 2012.”  As a result, the trial court granted the defendants’ motion for terminating sanctions, determining that it was “patently unjust” to force the defendants to continue to defend an action when they had been denied potentially exculpatory evidence, and dismissed the plaintiff’s complaint with prejudice.

The plaintiff appealed the ruling, arguing that terminating sanctions were not appropriate because there was no pattern of conduct with regard to discovery and that the trial court committed prejudicial error when it made factual and credibility findings without holding an evidentiary hearing.

Appellate Court’s Ruling

Regarding the plaintiff’s argument that sanctions were not appropriate because there was no pattern of conduct with regard to discovery, the appellate court stated “It is undisputed that the phone Woodell produced no longer contained the critical data, and the production of the phone was of no value to defendants. Woodell’s argument that the law prevented the trial court from imposing terminating sanctions when there was no pattern of discovery abuse or no violation of a prior discovery order is incorrect.”  The appellate court also found that the trial court did not abuse its discretion in finding – without holding an evidentiary hearing – that the defendants met their burden of showing that the plaintiff deliberately removed the data from the phone in anticipation of litigation.  As a result, the appellate court affirmed the lower court’s ruling to dismiss the lawsuit.

So, what do you think?  Did the spoliation warrant termination sanctions?  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.

Motion to Compel Denied for Employees’ Personal Emails, Granted for Third Party Hosted Data: eDiscovery Case Law

In Matthew Enterprise, Inc. v. Chrysler Group, LLC, No. 13-cv-04236-BLF (N.D. Cal. Dec. 10, 2015), California Magistrate Judge Paul S. Grewal denied the defendant’s motion to compel production from personal email accounts of the plaintiff’s employees because the plaintiff did not have legal control of the emails.  However, he granted the defendant’s motion to compel production from the plaintiff’s customer communications database operated by a third party vendor, noting that the plaintiff did have control of that data, having already produced data from this source.

Case Background

In this price discrimination dispute between an auto manufacturer and its dealer, the defendant moved to compel the plaintiff to produce emails from the personal accounts of the plaintiff employees (because the plaintiff did not furnish all its employees with email accounts, many of them used their personal accounts for business purposes) and from the plaintiff’s customer communications database.  The plaintiff argued that the employee email accounts were outside its “possession, custody, or control,” so they were beyond the scope of party discovery. Similarly, because an outside vendor maintained and operated the plaintiff’s customer communications database, the plaintiff contended that those communications were also not discoverable. The defendant responded that the plaintiff still has control over its company information, whether it is stored in personal email accounts or in a vendor’s database.

Judge’s Ruling

With regard to the employees’ emails, Judge Grewal ruled:

“Chrysler has not carried this burden for the emails in personal accounts. Chrysler points to a Stevens Creek employee handbook that instructs employees to keep ‘internal information’ in the ‘sole possession’ of Stevens Creek, but this is not a contract and so does not create a legal right for Stevens Creek to take back any such information now stored in personal accounts.   And as Stevens Creek pointed out at the hearing on this motion, even if the court were to order that Stevens Creek collect emails from its employees’ personal accounts, Chrysler has not identified any authority under which Stevens Creek could force employees to turn them over. The Ninth Circuit has recognized that ‘[o]rdering a party to produce documents that it does not have the legal right to obtain will oftentimes be futile, precisely because the party has no certain way of getting those documents.’  That is the case here.  The motion to compel production from employees’ personal email accounts is DENIED.”

As for the customer communications database, Judge Grewal had a different ruling:

“The AVV database is different.  Although the contract that governs Stevens Creek’s relationship with AVV is not before the court, Stevens Creek clearly has access to information from the AVV database that Stevens Creek pays AVV to maintain.  In fact, Stevens Creek already did ‘go to AVV and ask them to do a special production generation’ of certain data, but the data produced was not from the relevant time period. Furthermore, days before the hearing on this motion – and weeks after the motion was filed – Stevens Creek asked AVV to produce the information that Chrysler seeks here. Stevens Creek argues that Chrysler should have to subpoena information from AVV directly, but the burden of a non-party subpoena is unnecessary when the information sought lies within Stevens Creek’s legal control. Chrysler’s motion with respect to the documents in the AVV database is GRANTED.”

So, what do you think?  Should an organization have legal control of the emails related to their business that are maintained in an employee’s personal email account?  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.

Withheld Evidence Leads to New Trial, Resignation of Senior City Attorney: eDiscovery Case Law

This seems to be our week for verdicts being set aside due to alleged discovery violations by parties involved in the case or by the attorney representing those parties.  Thanks to Connie Scorza for the tip about this case!

In Colyer v. City of Chicago, No. 12 C 04855 (N.D. Ill., Jan 4, 2016), Illinois District Judge Edmond E. Chang granted in part the plaintiff’s post trial motion, denying the plaintiffs’ request for a directed verdict, but granting their request for a new trial after it was discovered that the defendants’ attorney had “intentionally” withheld the recording of a police dispatcher’s description of a possible suspect that was key in determining whether Chicago police officers acted with excessive force in killing a suspect in a traffic stop.  The plaintiffs also were awarded their attorneys’ fees and costs expended on preparing for the first trial, conducting the trial itself, and conducting the post-trial discovery and briefing.

Case Background

On January 7, 2011, Chicago Police Officers Raoul Mosqueda and Gildardo Sierra pulled over an Oldsmobile Aurora in Chicago’s Englewood neighborhood driven by Darius Pinex. The officers stated that they decided to stop the car because they thought it matched the description of an Aurora that other officers had unsuccessfully tried to pull over earlier that night. Mosqueda claimed he heard the description of the Aurora over his police-car radio from a dispatcher in the Office of Emergency Management and Communications (OEMC).  Mosqueda claimed during the litigation that the OEMC call warned that the Aurora was wanted for a shooting or that there might have been a gun in the car.  During the resulting confrontation (the details of which were disputed by the parties involved), Pinex was killed.  Nine months later, Pinex’s estate filed suit against Mosqueda, Sierra and the City of Chicago, alleging excessive force in violation of the Fourth Amendment.

During the case, the plaintiffs asked for the recording of what Mosqueda claimed to have heard over the radio, as well as any documents related to the recording, but the discovery responses that they did get led them to believe that no recording of the call or documents were available. From that, the plaintiffs reasonably concluded that Mosqueda was lying, had actually heard nothing, and the officers executed an overly aggressive traffic stop, so they prepared their case accordingly.

However, on the fourth day of trial, it was revealed that there was an OEMC record showing the potential availability of a recording of the call the officers heard that night, and soon afterwards, it was revealed that the recording was in fact still available, which did not mention that the Aurora had a gun or that the car was wanted for a shooting.  The plaintiffs’ counsel had to adjust their trial presentation strategy to account for the existence of the recording, but, ultimately, the jury found in favor of the defendants.  Because the recording wasn’t made available earlier, the plaintiffs moved for a directed verdict in their favor or, short of that, a new trial along with attorneys’ fees and costs.

Judge’s Ruling

In order to determine the extent of the discovery violation and the propriety of the relief sought, the Court authorized post-trial discovery.  As Judge Chang stated after the post-trial discovery was conducted:

“That discovery has shown two things. First, it has shown that Jordan Marsh, one of the City Law Department lawyers representing the officers and the City of Chicago, learned about the OEMC record before trial and knew that the recording might still be available. The Court has no choice but to conclude, based on the record evidence, that Marsh intentionally withheld this information from the Court, from Plaintiffs, and even from his own co-counsel. Second, post-trial discovery has shown that, in response to Plaintiffs’ discovery request seeking the recording and related documents, Thomas Aumann, another Law Department lawyer for the officers and the City of Chicago, failed to make a reasonable inquiry, as required by the discovery rules, to search for the recording and responsive documents. Aumann only looked for documents in a Law Department file, but he had no idea how the documents in the file were gathered, from what sources, or even who gathered them.”

Regarding Marsh’s “misconduct”, Judge Chang noted that “the Court has no choice but to conclude that Jordan Marsh intentionally concealed from Plaintiffs and from the Court the existence of the OEMC record memorializing that Maderak had sent Sergeant Lamperis CDs containing the Zone 6 Audio. After hiding that information, despite there being numerous times when the circumstances dictated he say something about it, Marsh said nothing and even made misleading statements to the Court when the issue arose. This misconduct justifies a new trial and attorneys’ fees and costs from February 19, 2015—the date that he learned of the OEMC record and the Zone 6 Audio’s potential availability—through the post-trial discovery and briefing.”

After Judge Chang’s ruling, Marsh resigned from his position later that day.

So, what do you think?  Should an attorney who intentionally withholds evidence in discovery be disbarred for that action?  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 Gives Plaintiff 21.5 Million Reasons for Not Spoliating Emails: eDiscovery Case Law

When you spoliate data, you can lose even after you’ve won…  :o)

In Hausman v. Holland America Line-U.S.A., et al., No. CV13-0937 BJR (W.D. Wa., Jan 5, 2016), Washington District Judge Barbara Jacobs Rothstein vacated a $21.5 million verdict awarded to a man injured by a closing cruise-ship door in 2011 and ordered a new trial, after the plaintiff’s former assistant alleged that he deleted emails that could hurt his case.

Case Background

The plaintiff sued the defendant in 2013, stating that he suffered dizziness and seizures after an automatic sliding glass door improperly closed and struck his head as the vessel approached Honolulu. After a two-week trial in October, a jury awarded him $21.5 million.

However, the matter did not end there. Approximately two weeks after the trial concluded, the defendants were approached by the plaintiff’s former personal assistant who informed them that the plaintiff had deliberately sabotaged the defendants’ pre-trial discovery efforts, alleging that he: (1) Deleted and/or failed to disclose the existence of emails that he knew were relevant to this lawsuit, (2) Tampered with witness testimony, (3) Fabricated and/or exaggerated the extent of his alleged injuries, and (4) Testified falsely at trial.

Through witness testimony and supporting documents from the personal assistant at an evidentiary hearing held in December, the following allegations were made:

  • The plaintiff panicked when he learned that he would have to produce emails responsive to certain terms and began searching for and deleting those emails over “several days”;
  • He instructed her to delete all email correspondence between the two of them from her computer and phone, which she proceeded to do;
  • He discussed hiring someone to “scrub” his computer and that claimed he had used a large magnet to damage his home office computer’s hard drive; and
  • He had a second personal email account that he used while she was employed as his personal assistant, but that he did not disclose this account to the defendants.

In support of her testimony, the defendants produced copies of 60 emails that she was able to recover from her computer and/or phone after she deleted them, approximately 1/3 of which contained search terms that should have triggered their production.  In one of the deleted emails, the plaintiff wrote to his assistant to say he was sore after spending most of the day on a 10-foot ladder using a fire ax to chop ice that had built up over the front porch of his house, contrary to his claim of vertigo after the incident.

The plaintiff conceded that he did not produce those emails and that nearly one-third of the emails contain the Court-ordered search terms, but claimed the failure to produce these emails was not the result of misconduct on his part, but simply as part of his routine practice of clearing out his inbox.

Judge’s Ruling

In making her ruling, Judge Rothstein stated that “the credibility of Ms. Mizeur and Mr. Hausman is at the heart of this motion: Ms. Mizeur charges that Mr. Hausman intentionally sabotaged Defendants’ discovery efforts and is lying to cover his misconduct; Mr. Hausman charges that Ms. Mizeur is a bitter ex-employee who is lying because she wants to wreak havoc on his life. Thus, this Court must assess the credibility of Ms. Mizeur and Mr. Hausman.”

Finding the former assistant’s explanation regarding a check that she wrote to herself from the plaintiff’s account as an approved expense as “credible”, Judge Rothstein stated “[i]n short, this Court finds Ms. Mizeur to be a truthful witness.”

As for the plaintiff, not so much.

“The same cannot be said for Mr. Hausman”, Judge Rothstein stated. “As a witness, he came across evasive and untrustworthy. He appeared to weigh each answer, not for its truthfulness, but to assess whether it would damage his case. Mr. Hausman also seemed to capitalize on his alleged brain injury when it was convenient for him. He was confused or claimed memory loss when confronted with a question or exhibit that appeared to undermine his claims, yet was animated and full of information when his testimony supported his case.”

Finding “that Plaintiff did not meet his burden of establishing by clear and convincing evidence that the withheld information was inconsequential”, Judge Rothstein concluded “that a miscarriage of justice occurred in this case”, vacated the judgment entered in the case and ordered a new trial.

So, what do you think?  Was this sanction excessive?  Is it ever too late to sanction a party for intentional spoliation of data?  Please share any comments you might have or if you’d like to know more about a particular topic.

Thanks, as always, to Sharon Nelson’s excellent Ride the Lightning blog for the tip!

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

Court Orders Sanctions Against Defendant for Spoliation of Emails and Other Documents: eDiscovery Case Law

Now, that we’ve recapped last year’s cases, let’s start covering cases for this year…

In Ocwen Loan Servicing, LLC v. Ohio Public Employees Retirement System, No. 654586/2012 (Supreme Court of New York, New York County, December 7, 2015), the Court, determining that the defendant had spoliated data, found that the plaintiff had not demonstrated sufficient facts to warrant striking the defendant’s affirmative defenses, but opted to order an adverse inference instruction and also ordered the defendant to pay the plaintiff’s attorneys’ fees and costs in preparing the instant motion for sanctions.

Case Background

In this action to recover principal distributions from the defendant, the defendant, at the direction of in-house counsel, distributed a written litigation hold notice to certain employees who were deemed likely to possess documents relevant to the dispute.  In addition, the defendant’s IT department saved emails in an enterprise email archiving system.  Despite the preservation, the defendant objected to the plaintiff’s discovery requests and did not produce any responsive documents during a period where disputes over the plaintiff’s motion for summary judgment were happening, until sometime after the court instructed the parties to go forward with discovery.  The defendant ultimately produced documents responsive to the plaintiff’s discovery requests.

However, several months into discovery, the defendant revealed that due to a “synchronization error,” emails that were preserved in the email archiving system that were subject to the ligation hold were accidentally purged, resulting in the content of 101 responsive emails being lost (though the defendant was able to recover and produce metadata from the lost emails).  Due to that issue and other instances of supposed spoliation by the defendant (including one email that was ultimately produced by another party that had communicated with the defendant), the plaintiff filed an instant motion for sanctions, asking the Court to strike the defendant’s affirmative defense of detrimental reliance, or, in the alternative, order a preclusion sanction or adverse inference.

Court’s Ruling

Finding that the duty to preserve began as early as April 2011 and no later than May 2011, the Court found “that OPERS’ had control of – and access to” lost or destroyed ESI in May 2011” and that the defendant wiped the computer of a key retired employee after the plaintiff had rejected a settlement offer from the defendant.  The court also found that the plaintiff had shown that at least some of the deleted ESI was relevant to the case.

Despite this, the court opted for the lesser sanction sought by the plaintiff, noting:

“Here, Ocwen has demonstrated prejudice as a result of OPERS’ failure to preserve France’s ESI and Bloomberg messages. However, the “extreme sanction” of striking OPERS’ affirmative defense is not appropriate in this case because Ocwen was able to obtain some evidence to disprove detrimental reliance, namely the August 2009 message sent from Gleacher to France…Since the loss of potentially relevant ESI is not fatal to Ocwen’s rebuttal of OPERS’ sixth affirmative defense, the imposition of an adverse inference as to that charge is appropriate and ‘reflects an appropriate balancing under the circumstances.’”

As a result, the court ordered an adverse inference instruction against the defendant and also ordered the defendant to pay the plaintiff’s attorneys’ fees and costs in preparing the instant motion for sanctions.

So, what do you think?  Was that the appropriate sanction?  Or should the defendant have been sanctioned at all?  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.

2015 eDiscovery Case Law Year in Review, Part 4

As we noted yesterday, Wednesday and Tuesday, eDiscovery Daily published 89 posts related to eDiscovery case decisions and activities over the past year, covering 72 unique cases!  Yesterday, we looked back at cases related to cooperation issues, social media and mobile phone discovery, technology assisted review and the first part of the cases relating to sanctions and spoliation.  Today, let’s take a look back at the rest of the cases relating to sanctions and spoliation.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

SPOLIATION / SANCTIONS

We covered the first ten cases related to requests for sanctions yesterday, here are the remaining eighteen cases that we covered last year:

Court Denies Plaintiff’s Request for Spoliation Sanctions, as Most Documents Destroyed Before Duty to Preserve: In Giuliani v. Springfield Township, et al., Pennsylvania District Judge Thomas N. O’Neill, Jr. denied the plaintiffs’ motion for spoliation sanctions, finding that the duty to preserve began when the case was filed and finding that “plaintiffs have not shown that defendants had any ill motive or bad intent in failing to retain the documents which plaintiffs seek”.

Judge Recommends Default Judgment Sanctions Against Defendants, Even Though Some Deleted Files Were Recoverable: In Malibu Media, LLC v. Tashiro, Indiana Magistrate Judge Mark J. Dinsmore issued a Report and Recommendation on Plaintiff’s Motion for Sanctions, recommending that the Court grant the plaintiff’s motion against the defendants for spoliation of evidence and perjury and enter default judgment against the defendants.

Similar Spoliation Case, Somewhat Different Outcome: In Malibu Media, LLC v. Michael Harrison (with the same plaintiff and issues as the case above in this list), Indiana District Judge William T. Lawrence denied the plaintiff’s motion for summary judgment, upholding the magistrate judge’s ruling which found an adverse inference instruction for destroying a hard drive with potentially responsive data on it to be not warranted, and ruled that “it will be for a jury to decide” if such a sanction is appropriate.

Plaintiff Once Again Sanctioned with an Adverse Inference Instruction, But Still No Complete Dismissal: In Lynn M. Johnson v. BAE Systems, Inc. et. al., District of Columbia District Judge Robert L. Wilkins granted the defendants’ motion for summary judgment with respect to the plaintiff’s claims for negligence, battery, and defamation, but chose to “impose lesser, but nonetheless severe, sanctions” in the form of an adverse inference instruction for her remaining claim for intentional infliction of emotional distress.

New York Supreme Court Sanctions Two Attorney Defendants for “Egregious Misconduct” in Spoliation of Data: In HMS Holdings Corp. v. Arendt, et al., the New York Supreme Court in Albany County ordered a mandatory adverse inference instruction so that the trier of fact could “draw the strongest possible adverse inference from defendants’ bad faith and intentional destruction, deletion and failure to produce relevant evidence”. The court also awarded attorney fees, and forwarded a copy of the order regarding Defendant Lange to the New York State Committee on Professional Standards for attorneys.

Court Sanctions Plaintiff for Failing to Preserve Audio Recording: In Compass Bank v. Morris Cerullo World Evangelism, California Magistrate Judge William V. Gallo ruled that the plaintiff “wilfully engaged in the spoliation of relevant evidence”, and “has demonstrated a pattern of recalcitrant behavior during discovery in this litigation” and awarded an adverse inference jury instruction sanction against the plaintiff as well as defendant’s attorney fees and costs.

Court Orders Deposition of Expert to Evaluate Issues Resulting from Plaintiff’s Deletion of ESI: In Procaps S.A. v. Patheon Inc., Florida District Judge Jonathan Goodman ordered the deposition of a third-party computer forensic expert, who had previously examined the plaintiff’s computers, to be conducted in part by a Special Master that had been appointed to examine the eDiscovery and forensic issues in the case. The purpose of the ordered deposition was to help the Court decide the issues related to files deleted by the plaintiff and assist the defendant to decide whether or not to file a sanctions motion.

Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation: In Clear-View Technologies, Inc., v. Rasnick et al, California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants’ spoliated documents due to a series of “transgressions” by the defendants and their prior counsel.

Appeals Court Upholds “Death Penalty Order” Sanction That Leads to Multi-Million Dollar Judgment: In Crews v. Avco Corp., a Washington Court of Appeals upheld a “death penalty order” against the defendant for discovery violations, including the failure to produce relevant information, but remanded for amendment of the final judgment of over $17.28 million to reflect any offsets for settlements with other defendants.

Denial of Motion for Spoliation Sanctions Leaves Plaintiff Less Than Glad: In Gladue v. Saint Francis Medical Center, Missouri District Judge Carol E. Jackson denied the plaintiff’s motion for evidentiary and monetary sanctions due to spoliation of evidence, finding that the defendant did not have a duty to preserve emails deleted as part of routine IT operations, had diligently attempted to recover deleted emails and that the plaintiff failed to show that any of the unrecovered emails were relevant to her claims.

How Blue Was My Valley? Not Blue Enough to Cite the Defendant for Discovery Violations: In Malone v. Kantner Ingredients, Nebraska Magistrate Judge Cheryl R. Zwart denied the plaintiffs’ motion to show cause, finding that the defendant “the plaintiffs have presented no evidence” that the defendant “destroyed, hid, or purposefully (or even recklessly) failed to produce responsive ESI” in the case.

Discarding a Relevant Computer Results in Adverse Inference Sanctions, Not Default Judgment: In Grady v. Brodersen, Colorado Magistrate Judge Nina Y. Wang granted the plaintiff’s motion for sanctions against the defendant in part for failing to produce a computer that the defendant ultimately acknowledged that he discarded, but denied the plaintiff’s request for a default judgment sanction, opting for the less severe adverse inference instruction sanction.

Defendant Does Not Take the Fall for Spoliation in Slip and Fall Case: In Harrell v. Pathmark et al., Pennsylvania District Judge Gene E. K. Pratter, after a hearing to consider whether to draw an adverse inverse instruction due to the defendant’s possible spoliation of video evidence, determined that “a spoliation inference would not be appropriate here”. Finding that the plaintiff had presented no evidence that the defendant had constructive notice of a dangerous condition resulting in her slip and fall, Judge Pratter also granted the defendant’s motion for summary judgment.

Court Rules that Australian Company’s Duty to Preserve Only Begins when US Court Has Jurisdiction: In Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd., Ohio District Judge Timothy S. Black ruled that the duty to preserve for the defendant (an Australian company with offices and facilities only in Australia) did not begin until the complaint was filed in US courts in December 2011, denying the assertion of the intervenor/counter defendant that the duty to preserve arose in 2002.

Court Awards Attorney Fees to Defendant After Delayed Production by Plaintiff: In Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp., Michigan Magistrate Judge Phillip J. Green awarded some (but not all) of the attorney fees requested by the defendant after the plaintiff “made repeated promises to produce the subject documents”, but “failed to do so for nearly three months after the deadline for responding to Westport’s Rule 34 request” and “compliance was obtained only after Westport filed its motion to compel”.

Plaintiffs Not Sanctioned for Late Production, Citing Their $29,000 Expense to Hire Experts to Assist: In Federico et al. v. Lincoln Military Housing LLC, et al., Virginia Magistrate Judge Douglas E. Miller, concluding that the defendants had not established that the plaintiffs had acted in bad faith when failing to meet production deadlines, declined to impose “any further sanction against Plaintiffs beyond the $29,000 expense associated with their expert’s production of the Facebook records”, except for a portion of the reasonable attorney’s fees associated with the original motion to compel.

Plaintiff Sanctioned for Late Production, But Not for Failure to Produce Data Held by Outside Vendor: In Ablan v. Bank of America, Illinois Magistrate Judge Daniel G. Martin recommended that the defendant’s Motion for Sanctions should be granted in part and denied in part, recommending that the plaintiffs be barred from using any new information at summary judgment or at trial that was contained on eight CD-ROMs produced late, but recommending no sanctions for failing to produce or make available documents held by the plaintiff’s outside vendor.

Payday Loan Company Sanctioned for Discovery Violations: In James v. National Financial LLC, Delaware Vice Chancellor Laster granted the plaintiff’s motion for sanctions after determining that the defendant’s “discovery misconduct calls for serious measures”. However, the plaintiff’s request for a default judgment was not granted, but lesser sanctions that included attorneys’ fees and a ruling that the lack of information contained in the requested document resulted in an admission.

Hope you enjoyed our recap of last year’s cases.  Next year, we’ll do it again for this year’s cases!

Want to take a look at cases we covered the previous four years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

2015 eDiscovery Case Law Year in Review, Part 3

As we noted yesterday and Tuesday, eDiscovery Daily published 89 posts related to eDiscovery case decisions and activities over the past year, covering 72 unique cases!  Yesterday, we looked back at cases related to disputes about discovery, eDiscovery cost reimbursement and issues related to privilege and confidentiality assertions.  Today, let’s take a look back at cases related to cooperation issues, social media and mobile phone discovery, technology assisted review and the first part of the cases relating to sanctions and spoliation.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

COOPERATION

Why can’t we all just get along?  There were several instances where parties couldn’t agree and had to kick issues up to the court for resolution, here are four such cases:

Judge Shows Her Disgust via “Order on One Millionth Discovery Dispute”: In Herron v. Fannie Mae, et al., DC District Judge Rosemary M. Collyer issued an order titled “Order on One Millionth Discovery Dispute” where she decided that “[c]ontrary to its usual practice, the Court will rule immediately, in writing” on the latest discovery disputes between the plaintiff and defendant.

Court’s “New and Simpler Approach to Discovery” Identifies Search Terms for Plaintiff to Use: In Armstrong Pump, Inc. v. Hartman, New York Magistrate Judge Hugh B. Scott granted in part the defendant’s motion to compel discovery responses and fashioned a “new and simpler approach” to discovery, identifying thirteen search terms/phrases for the plaintiff to use when searching its document collection.

Court Agrees to Allow Defendant to Use Search Terms to Identify ESI to Preserve: In You v. Japan, California District Judge William Alsup granted the defendant’s motion to limit preservation of articles to those that contain one of several relevant search terms, as long as the defendant’s proposal was amended to include one additional term requested by the plaintiffs.

Court Orders Defendant to Supplement Data Used for Statistical Sampling: In United States ex rel Guardiola v. Renown Health, Nevada Magistrate Judge Valerie P. Cooke agreed with the relator’s contention that the data used to finalize the relator’s proposed statistical sampling plan was incomplete due to how data was identified within one of two billing systems used by the defendant. As a result, she ordered the defendant to “EXPEDITIOUSLY PRODUCE” the additional data (and, yes, she used all caps).

SOCIAL MEDIA

Requests for social media data in litigation continue, so here are three cases related to requests for social media data:

Court Rejects Defendants Motion Seeking Limitless Access to Plaintiff’s Facebook Account: In the class action In re Milo’s Kitchen Dog Treats Consolidated Cases, Pennsylvania Magistrate Judge Maureen P. Kelly denied the defendants’ Motion to Compel Unredacted Facebook Data File and Production of Username and Password, disagreeing that the discovery of one highly relevant Facebook entry justified the defendants to be “somehow entitled to limitless access to her Facebook account”. Judge Kelly did order the plaintiff to produce previously produced redacted Facebook pages to the Court unredacted so that an in camera inspection could be conducted to confirm that the redacted information was truly privileged.

Plaintiff’s Motion to Quash Subpoena of Text Messages Granted by Court: In Burdette v. Panola County, Mississippi Magistrate Judge S. Allan Alexander granted the plaintiff’s Motion to Quash Subpoena where the defendant subpoenaed the plaintiff’s text messages and call log records from his mobile provider.

When Claiming Workplace Injury, Facebook Posts Aren’t Handy, Man: In the case In Newill v. Campbell Transp. Co., Pennsylvania Senior District Judge Terrence F. McVerry ruled on the plaintiff’s motion in limine on miscellaneous matters by allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities, but not those that related to his employability.

TECHNOLOGY ASSISTED REVIEW

Believe it or not, we only covered one technology assisted review case last year, at least officially.  Though, we did at least cover it twice.  Here is the case:

Judge Peck Wades Back into the TAR Pits with ‘Da Silva Moore Revisited’: In Rio Tinto Plc v. Vale S.A., New York Magistrate Judge Andrew J. Peck approved the proposed protocol for technology assisted review (TAR) presented by the parties, but made it clear to note that “the Court’s approval ‘does not mean. . . that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR].’”  Later on, Judge Peck assigned a well-respected industry thought leader as special master to the case.

SPOLIATION / SANCTIONS

I’ll bet that you won’t be surprised that, once again, the topic with the largest number of case law decisions related to eDiscovery are those related to sanctions and spoliation issues.  Of the 72 cases we covered this past year, 39 percent of them (28 total cases) related to sanctions and spoliation issues.  Sometimes requests for sanctions are granted, sometimes they’re not.  Here are the first ten cases:

Appeals Court Upholds Default Judgment Sanctions for Defendant’s Multiple Discovery Violations: In Long Bay Management Co., Inc. et. al. v. HAESE, LLC et. al., the Appeals Court of Massachusetts found that the default judge had not abused her discretion in ordering sanctions and assessing damages and ordered that the plaintiffs could submit a petition for appellate attorneys’ fees incurred in responding to the appeal.

Court Grants Defendants’ Motion to Exclude Plaintiff’s Use of Spoliation Evidence: In West v. Talton, Georgia District Judge C. Ashley Royal granted the defendants’ Motion in Limine to exclude all evidence and argument regarding spoliation, reserving its ruling on the remaining issues in the Motion in Limine.

Not Preserving Texts Results in Adverse Inference Sanctions for Plaintiff: In NuVasive, Inc. v. Madsen Med., Inc., California Chief District Judge Barry Ted Moskowitz granted the defendants’ motion for adverse inference sanctions for failure to preserve text messages from four custodial employees that were key to the case.

Court States that Duty to Meet and Confer is Not an “Empty Formality”, Denies Request for Sanctions: In Whitesell Corporation v. Electrolux Home Products, Inc. et. al., Georgia District Judge J. Randal Hall denied the plaintiff’s motion for sanctions against the defendant for identifying a deponent that (according to the plaintiff) had no particularized information regarding the defendant’s efforts to produce documents, stating that he was “unimpressed” by the plaintiff’s effort to confer on the matter and stating that the “duty-to-confer is not an empty formality”.

Despite Failure to Implement a Litigation Hold, Defendant Escapes Sanctions: In Flanders v. Dzugan et. al., despite the fact that the defendant failed to implement a litigation hold, Pennsylvania District Judge Nora Barry Fischer denied the plaintiff’s Motion for Sanctions alleging the defendants failed to preserve evidence relevant to the case, finding that the plaintiff “cannot show any evidence was actually lost or destroyed”, “cannot show that if evidence was lost or destroyed, it would have been beneficial to his case” and “[n]or can Plaintiff show bad faith”.

Court Denies Motion for Sanctions Against Veterinary Hospital for Spoliation of ESI: In Grove City Veterinary Service, LLC et. al. v. Charter Practices International, LLC, Oregon Magistrate Judge John V. Acosta concluded that the plaintiffs had not met their burden of showing they are entitled to sanctions for spoliation of evidence by deleting one of the veterinarian’s archived work emails.

Defendant Gets Summary Judgment, Not Dismissal, Due to Plaintiff’s Wiping of Hard Drive: In Watkins v. Infosys, Washington District Judge John C. Coughenour denied the defendant’s Motion for the Sanction of Dismissal but granted the defendant’s Motion for Summary Judgment against the plaintiff for spoliation of data due to her use of “Disk Wiping” software to delete ESI.

Court Rules that State Agency is Not Responsible for Emails Deleted via the Retention Policy of Another State Agency: In Wandering Dago, Inc. v. N.Y. State Office of Gen. Servs., New York Magistrate Judge Randolph F. Treece denied the plaintiff’s request for sanctions, stating that “that neither the individual Defendants nor their Attorney had a duty to preserve” the emails of the Deputy Secretary of Gaming and Racing to the President of the New York Racing Authority (“NYRA”).

Apparently, in Discovery, Delta is Not Ready When You Are and It Has Cost Them Millions: A few years ago, we covered a case law decision in the Delta/Air Tran Baggage Fee Antitrust Litigation, where Delta was ordered to pay plaintiff attorney’s fees and costs for eDiscovery issues in that litigation. Apparently, Delta’s difficulties in this case have continued, as they have been ordered this week to pay over $2.7 million in sanctions for failing to turn over ESI, to go along with more than $4.7 million in sanctions for earlier discovery violations.

Court Denies Request for Sanctions for Routine Deletion of Files of Departed Employees: In Charvat et. al. v. Valente et. al., Illinois Magistrate Judge Mary M. Rowland denied the plaintiff’s request for spoliation sanctions for the defendant’s admitted destruction of computer files belonging to two departed employees, finding that the plaintiff did not provide any evidence that the defendant acted in bad faith.

Tomorrow, we will cover the remaining cases relating to sanctions and spoliation.  Stay tuned!

Want to take a look at cases we covered the previous four years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

2015 eDiscovery Case Law Year in Review, Part 2

As we noted yesterday, eDiscovery Daily published 89 posts related to eDiscovery case decisions and activities over the past year, covering 72 unique cases!  Yesterday, we looked back at cases related to admissibility and proportionality, production format disputes and (once again) the ubiquitous Apple v. Samsung case.  Today, let’s take a look back at cases related to disputes about discovery, eDiscovery cost reimbursement and issues related to privilege and confidentiality assertions.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

DISPUTES ABOUT DISCOVERY

Last year, we covered cases where parties requested discovery on their opponent’s discovery process.  Those, and other general disputes about the discovery process – including requesting 30(b)6) depositions and a notable dispute about whether contract attorneys should receive overtime pay – are included in this category.

Calling First 30(b)(6) Witness a “Waste of Time”, Court Orders a Second Deposition: In Rembert v. Cheverko et. al., New York District Judge Katherine B. Forrest granted the plaintiff’s motion “in its entirety” to compel the defendants to provide a properly prepared 30(b)(6) witness to testify regarding the defendants’ preservation and production of emails, to provide copies of document retention/preservation notices issued and to reimburse plaintiff’s costs and fees associated with having to conduct an additional deposition.

Court Acknowledges Lack of Expertise to Recommend Search Methodology, Orders Parties to Confer: In ACI Worldwide Corp. v. MasterCard Technologies, LLC and MasterCard International, Inc., Nebraska Magistrate Judge F.A. Gossett, acknowledging that the Court “simply does not have the expertise necessary to determine the best methodology to be employed in retrieving the requested materials in a safe, non-obtrusive, and cost-effective manner”, ordered the parties to “once again” confer in an effort to reach an agreement regarding the search methodology to be employed by the defendants in retrieving the information requested by the plaintiff.

Court Agrees with Plaintiffs, Orders Provision for Qualitative Sampling of Disputed Search Terms: In the case In Re: Lithium Ion Batteries Antitrust Litigation, California Magistrate Judge Donna M. Ryu ordered the defendants to comply with the plaintiffs’ proposed qualitative sampling process for keyword search terms, citing DaSilva Moore that keywords “often are overinclusive”.

Court Rules on Dispute about Search Terms and Organization of Produced Documents: In Lutzeier v. Citigroup Inc., Missouri District Judge Ronnie I. White ruled on two motions to compel discovery by the plaintiff, addressing (among other things) disagreement on search terms to be used by the defendant and lack of organization and labeling of the defendant’s production to date.

Should Contract Review Attorneys Receive Overtime Pay?: Whether they should or not, maybe they can – if they’re found NOT to be practicing law, according to a ruling from the Second U.S. Circuit Court of Appeals.  That case was ultimately settled (click here for more information).

“Quality is Job 1” at Ford, Except When it Comes to Self-Collection of Documents: In Burd v. Ford Motor Co., West Virginia Magistrate Judge Cheryl A. Eifert granted the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s search and collection methodology, but did not rule on the issue of whether the defendant had a reasonable collection process or adequate production, denying the plaintiff’s motion as “premature” on that request.

EDISCOVERY COST SHARING AND REIMBURSEMENT

This year, eDiscovery cost reimbursement began to trend toward the positive as there were four cases where the prevailing party was awarded reimbursement of eDiscovery costs and only one case where requests for reimbursement of eDiscovery costs were denied (one requested further declaration by the requesting party).

Court’s “Jazzy” Decision to Award Costs May “Bug” Plaintiff, But Defendant Doesn’t Mind a “Bit”: In Fitbug Ltd. v. Fitbit, Inc., California District Judge Samuel Conti, throwing in a jazz reference during his opinion, ruled to tax over $63,000 in costs to be paid to the prevailing defendant in the case.

Plaintiff Awarded Sanctions and Reimbursement of Some eDiscovery Costs: In Engineered Abrasives, Inc. v. American Machine Products & Service, Inc., Illinois District Judge Sara L. Ellis awarded the plaintiff damages, attorneys’ fees and some requested costs, as well as granting the plaintiff’s motion for sanctions and ordering the defendants to reimburse the plaintiff $12,800 for the cost of conducting a forensic computer examination, which the plaintiff maintained was necessitated by Defendants’ evasive and incomplete responses and their failure to produce documents during discovery.

Image is Not Only Everything, It Is Also Legally a Copy, Appeals Court Rules: In Colosi v. Jones Lang LaSalle Americas, Inc., the Sixth Circuit Court of Appeals affirmed the District Court’s judgment to approve a $6,369.55 bill of costs which included synchronization of deposition videos and imaging of hard drives that the defendant submitted after prevailing in the case.

Court Upholds Review of Taxable Costs by Clerk, Awards over $57,000: In Comprehensive Addiction Treatment Center, Inc. v. Leslea, Colorado District Judge Christine M. Arguello denied the plaintiffs’ motion to review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1), upholding the award by the Clerk of the Court of $57,873.61 in taxable costs.

Appeals Court Reverses Award for Attorney Fees for Overbroad ESI Requests: In Bertoli et al. v. City of Sebastopol, et al., the California Court of Appeals, while not disagreeing with the trial court’s finding that the plaintiff’s ESI request was “unfocused and nonspecific, unduly burdensome, and an alarming invasion of privacy rights”, disagreed that their Public Records Act (PRA) requests were “clearly frivolous” and reversed the trial court’s order for attorneys fees and costs.

Court Orders Defendant to Submit Further Declaration after Plaintiff Disputes its Claimed eDiscovery Costs: In Bonillas v. United Air Lines Inc., California Chief Magistrate Judge Elizabeth D. LaPorte ordered the defendant to submit a further declaration supporting its claimed eDiscovery costs by addressing several issues raised by no later than January 5, 2015, with the plaintiff having until January 8, 2015 to submit a brief response to the further declaration if he chose to do so.

PRIVILEGE  AND CONFIDENTIALITY ASSERTION ISSUES

There were a few cases related to disputes regarding privilege and confidentiality, including one where the producing party submitted a 2,941(!) page privilege log and another where a party classified 95% of its production as “highly confidential”!  Here are six cases discussing privilege and confidentiality assertions:

Court Denies Plaintiff’s Request for In Camera Review of Defendants’ Privileged Emails: In Armouth International, Inc. v. Dollar General Corp. et. al., Tennessee Magistrate Judge Barbara D. Holmes, calling the plaintiff’s request a “fishing expedition”, denied the plaintiff’s expedited motion to compel, requesting that the defendants be required to produce emails that were either withheld or redacted based on claims of attorney-client privilege for an in camera review of the emails by the Court to confirm the privilege claims.

Privilege Log Identifies Additional Documents to be Produced by Defendant: In U.S. Securities and Exchange Commission v. Commonwealth Advisors, Inc. et al., Louisiana Magistrate Judge Stephen C. Riedlinger ordered the defendants to produce additional documents that were identified on the defendants’ privilege log, but for which the defendants had waived attorney-client privilege.

Defendant Ordered to Produce Emails Between Non-Attorney Employees That Were Deemed Privileged: In Cicon v. State Farm Mutual Auto Ins. Co., Pennsylvania District Judge Richard P. Conaboy denied the plaintiff’s request for the defendant to produce attorney-client communications that occurred before the filing of the complaint, but granted his request regarding communications between non-attorney employees before the plaintiff’s counsel sent a letter threatening litigation, ordering the defendant to produce those emails, while allowing the defendant to redact explicit discussion of an attorney’s advice.

Court Orders Plaintiff to Re-Review 95% of its Production Classified as “Highly Confidential”: In Procaps S.A. v. Patheon Inc., after the plaintiff designated 95% of its forensically-produced documents (141,525 of 148,636) as “highly confidential”, Florida District Judge Jonathan Goodman ordered the plaintiff to re-review and re-designate those documents within ten days, and also assessed a $25,000 fees award against the plaintiff’s outside counsel to compensate the defendant for its efforts in reviewing the documents.

If You’re Going to Submit a 2,941 Page Privilege Log, You’d Better Be Able to Demonstrate Privilege: In United States v. Louisiana, Louisiana Magistrate Judge Richard L. Bourgeois, Jr., after reviewing 40 documents provided by the defendant for in-camera review, granted the plaintiff’s Renewed Motion to Compel a Proper Privilege Log, after denying the original motion because the plaintiff only provided 13 examples of “insufficient descriptions” within the privilege log’s entries.

Apple’s Motion to Seal eDiscovery Vendor Invoice Line Items Granted by Court: In GPNE Corp. v. Apple, Inc., California District Judge Lucy H. Koh granted the defendant’s motion to file under seal specific line items from third-party e-discovery vendor invoices that were submitted in support of its bill of costs.

Tomorrow, we will cover cases related to cooperation issues, social media and mobile phone discovery, the one case involving technology assisted review and the first part of the cases relating to sanctions and spoliation (yes, there were that many).  Stay tuned!

Want to take a look at cases we covered the previous four years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

2015 eDiscovery Case Law Year in Review, Part 1

Did you think we forgot?  No, we didn’t forget!

It’s time for our annual review of eDiscovery case law!  Once again, we had more than our share of sanctions granted and denied, as well as disputes over production formats, admissibility of electronically stored information (ESI) and even a dispute regarding whether contract review attorneys can receive overtime pay!  So, as we have done for the last four years, let’s take a look back at 2015!

Last year, eDiscoveryDaily published 89 posts related to eDiscovery case decisions and activities over the past year, covering a record 72 unique cases!  We’ve covered over 300 unique cases since our inception back in 2010.  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot).  Perhaps you missed some of these?  Now is your chance to catch up!

ADMISSIBILITY AND PROPORTIONALITY

As always, there are numerous disputes about data being produced and not being produced and whether the costs to do so are overly burdensome.  Here are seven cases related to admissibility, the duty to preserve and produce ESI and the proportionality for preserving and producing that ESI:

Court Denies Plaintiff’s Motion to Compel the Defendant to Assist with Access to its Data: In SFP Works, LLC v. Buffalo Armory, Michigan Chief District Judge Gerald E. Rosen, agreeing with the defendant that the plaintiff’s motion was untimely, and that Plaintiff “unreasonably declined” several options proposed by the defendant for accessing the data that was produced to it by the defendant, denied the plaintiff’s motion to compel access to operational data.

Defendant’s Wife Ordered to Turn Over iPhone for Examination: In Brown Jordan International, Inc. et. al. v. Carmicle et. al., Kentucky District Judge Greg N. Stivers granted the plaintiffs’ expedited motion to compel the defendant’s wife to produce her iPhone for a forensic examination for information related to the case.

Defendant Compelled to Restore and Produce Emails from Backup Tapes: In United States ex rel Guardiola v. Renown Health, Nevada Magistrate Judge Valerie P. Cooke concluded that emails contained on backup tapes held by the defendants was not reasonably inaccessible due to undue cost and, even if the emails were reasonably inaccessible due to undue burden or undue cost, “good cause supports their discoverability”. Also, after an analysis of cost-shifting factors found only one factor favored cost-shifting of the production of emails to the relator, Judge Cooke ordered the defendant to bear the cost of restoration and production.

Court Resolves Dispute Over Scope of Databases and Searches to be Performed: In Willett, et al. v. Redflex Traffic Systems, Inc., New Mexico District Judge Lourdes A. Martinez ordered the defendants to produce a spreadsheet referred of file folders, with information for the files on their virtual server(s), the plaintiffs to provide the defendant with a reasonable list of search terms, limited to the relevant time frame, parties, and issues of this case and for the defendants to perform the searches specified by the plaintiffs within ten days of receiving the searches.

Court Rules that Automatically Generated Read Receipt is Not Hearsay: In Fox v. Leland Volunteer Fire/Rescue Dep’t Inc., North Carolina District Judge Louise W. Flanagan ruled that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay.

Court Has a “Beef” with Plaintiff’s Proportionality Argument: In Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, Kansas Magistrate Judge Teresa J. James granted the defendants’ motion to compel production of documents, overruling the plaintiffs’ objections to the discovery request in finding that “Plaintiff has not satisfied its burden to show that producing the requested documents would be unduly burdensome”.

Plaintiff Ordered to Image its Sources of ESI, Respond to Disputed Discovery Requests: In Electrified Discounters, Inc. v. MI Technologies, Inc. et al., Connecticut Magistrate Judge Donna F. Martinez granted the defendant’s motion to compel the plaintiff ‘s responses to discovery and ordered the plaintiff to “image its sources of electronically stored information (‘ESI’), including its hard drives and QuickBook files”.

APPLE V. SAMSUNG

We may be done with the past, but the past is not done with us.  We couldn’t help but take a couple of looks back at Apple v. Samsung to see where the dispute stood (look at 2014, part 3 for more decisions related to this case).  And, by the way, I’ve lost count how many times Samsung has been ordered, then received a stay, to pay the judgment amount.

Believe it or Not, Apple v. Samsung is Still Going Strong: eDiscovery Case Law: It appears that Samsung may, just may, finally have to pay some damages to Apple for patent infringement.

Samsung Doesn’t Have to Write a Check After All…Yet: Earlier, we revisited the Apple v. Samsung case, which we covered so much last year, it had its own category in our annual case law review. On September 18, U.S. District Court Judge Lucy Koh granted Apple’s motion for partial final judgment in the case that Apple lodged against Samsung in 2011, seemingly clearing the way for Apple to collect $548 million in damages from Samsung. But, on Friday, Samsung received an emergency stay on that order.

PRODUCTION FORMAT DISPUTES

It seems that there are more disputes regarding the form of production than ever.  Here are the ten cases involving production format disputes:

Defendant Ordered to Produce Unredacted Versions of Agreements and Shipment Data: In Mervyn v. Atlas Van Lines, Inc. et. al., Illinois Magistrate Judge Susan E. Cox granted the plaintiff’s motion to compel the defendants to produce unredacted owner-operator agreements and shipment data, rejecting the defendants’ argument that producing both would be an undue burden.

Appellate Court Upholds Ruling to Require Production in Native Format: In the case In re State Farm Lloyds, the Texas Court of Appeals, finding that the relator failed to meet its burden to support its objection that it could not produce the discovery through reasonable efforts, denied the petition for writ of mandamus filed by the relator in which it contended that the trial court abused its discretion by ordering the production of discovery in native or near-native formats rather than the “reasonably usable” formats it proposed.

Court Denies Defendant’s Motion to Require Plaintiff to Re-Produce Data in a More Usable Format: In United States v. Meredith, Kentucky Senior District Judge Charles R. Simpson, III denied the defendant’s motion to compel production of electronically stored information (ESI) by the plaintiff in a usable format, agreeing that the plaintiff had fulfilled its discovery production obligation pertaining to the manner and format of the ESI.

Court Finds No Discovery Abuses by Defendant that Produced MSG Instead of TIFF Files: In Feist v. Paxfire, Inc., New York Magistrate Judge Ronald L. Ellis denied the plaintiff’s request for reimbursement of costs and expenses related to document production, finding that the plaintiff had made no showing of significant discovery abuses by the defendant, and had not demonstrated that the defendant engaged in intentionally burdensome production.

Court Orders Defendant to Produce Metadata for Previously Produced Emails: In Prezio Health, Inc. v. Schenk, et. al., after “a careful in camera review” of emails responsive to eighteen keyword search terms, Connecticut Magistrate Judge Joan Glazer Margolis ordered the defendant to produce metadata for eight specific emails which had already been produced to the plaintiff.

Plaintiff Ordered to Re-Produce Files in Native Format Because it Failed to Meet and Confer with Defendant: In Themis Bar Review, LLC v. Kaplan, Inc., California Magistrate Judge Barbara L. Major ordered the plaintiff pay for the cost to produce files in native format after the plaintiff originally produced unsearchable PDF images without metadata and failed to properly meet and confer with the defendant regarding production format as stipulated in the parties’ Joint Discovery Plan.

Defendant Compelled to Produce Employees’ Personal Data in EEOC Dispute: In EEOC v. DolgenCorp LLC d/b/a Dollar General, Illinois District Judge Andrea R. Wood granted the plaintiff’s motion to compel the defendant to produce electronically-stored information (“ESI”) containing personal information of the defendant’s conditional hires and complete versions of documents that the defendant previously produced with portions redacted due to purported lack of relevance. She also ordered the plaintiff to produce documents previously withheld due to privilege for an in camera review.

Oh, Thank Heaven! Court Orders 7-Eleven to Produce Metadata: In Younes, et al. v. 7-Eleven, Inc., New Jersey Magistrate Judge Joel Schneider granted the plaintiffs’ motions to compel the production of metadata for selected groups of documents, denying the defendant’s cross-motions to bar the production of metadata.

You Don’t Get a Second Chance to Make a First Document Production Request: In Allison v. Clos-ette Too, LLC, New York Magistrate Judge James C. Francis, among other motions considered, denied the plaintiff’s motion to compel the defendants’ production of electronically stored information (ESI) in native format after the plaintiff had previously requested (and received) ESI from the defendants without specifying the desired document format.

Court Untangles Form of Production Dispute with Curling Iron Manufacturer: In Wilson v. Conair Corp., California Magistrate Judge Stanley A. Boone granted in part the plaintiff’s motion to compel production, by requiring the defendant to produce further ESI in native format if feasible or TIFF format with the associated metadata, as well as to produce associated metadata for its prior production if it had not already done so.  The court later continued to intervene in discovery disputes between the two parties here.

We’re just getting started!  Tomorrow, we will cover cases related to disputes about discovery, eDiscovery cost reimbursement and issues related to privilege and confidentiality assertions.  Stay tuned!

Want to take a look at cases we covered the previous four years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Appeals Court Upholds Default Judgment Sanctions for Defendant’s Multiple Discovery Violations: eDiscovery Case Law

In Long Bay Management Co., Inc. et. al. v. HAESE, LLC et. al., No. 14-P-991 (Mass. App. Ct., Nov. 17, 2015), the Appeals Court of Massachusetts found that the default judge had not abused her discretion in ordering sanctions and assessing damages and ordered that the plaintiffs could submit a petition for appellate attorneys’ fees incurred in responding to the appeal.

In this case, the plaintiffs sued their former legal counsel for overbilling after a former associate of the counsel firm notified the plaintiffs that his billing records had been altered without his knowledge.  The default judge found that throughout the proceedings, the defendants repeatedly abused the discovery process in various ways, including inappropriate subpoena of individuals for deposition who were not “relevant to the subject matter involved in the pending action,” seeking information not “reasonably calculated to lead to the discovery of admissible evidence.”

The defendants were also found to have “repeatedly stymied” the plaintiff’s efforts to gather discoverable information, by failing to respond to the plaintiff’s discovery requests and never producing the underlying metadata of the billing records despite court orders, using delay tactics and claiming several excuses such as privilege, the inability to separate the metadata from other client files, and missing multiple hearing dates without excuse.  In addition to the numerous discovery violations, the default judge determined that there was also strong evidence, albeit circumstantial, establishing spoliation.

On appeal, the defendant argued that the default judge should have allowed both his motion to stay and motion for reconsideration because the appearance of his new counsel required more time to brief the court why spoliation did not occur, that the damages judge erred in holding the assessment of damages hearing despite becoming aware that the plaintiff had litigated the case under a name that was not the real party in interest and that the default judge erred in preventing him from introducing specific expert testimony.  In response to each argument, the appeals court found that the default and damages judges did not abuse their discretion in ordering sanctions and assessing damages.  The appeals court also ordered that the plaintiffs could submit a petition for appellate attorneys’ fees incurred in responding to the appeal.

So, what do you think?  Did the defendants’ actions warrant a default judgment against them?  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.