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Case Law

Despite Failure to Implement a Litigation Hold, Defendant Escapes Sanctions: eDiscovery Case Law

Is this case is one example of Craig Ball’s contention that “you are more likely to be hit by lightning than to be sanctioned for non-preservation of ESI”?  You decide.

In Flanders v. Dzugan et. al., 12-1481 (W.D. Pa., August 24, 2015), 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”.

Case Background

In this case where the plaintiff sued the defendants for constitutional violations related to their building permit approval process, the parties filed a Joint ESI Protocol Status Report with the Court in October 2014, agreeing that they would “initially focus their search” on the email of four employees of the defendant.  From these four individuals, the defendants turned over a total of 33 emails relating to the plaintiff and the litigation.  In one of these emails between two of the individuals, Defendant Dzugan stated, referring to the plaintiff, that he is “[g]etting tired of him.”  The plaintiff asserted that there must have been other similar emails that were not produced.

The Court ordered the defendants to file evidence of any litigation hold they had put in place for this lawsuit, but the defendants never filed any such evidence, and as Judge Fischer noted “it appears to be undisputed that they never put a litigation hold in place.” In its Motion for Sanctions, the plaintiff provided two arguments for a charge of spoliation for lack of a litigation hold: 1) arguing that the emails recovered from the email accounts that were searched cannot possibly be all the emails relating to the plaintiff and 2) arguing that additional email accounts were never searched at all.

Judge’s Ruling

Judge Fischer stated that “Plaintiff is correct that Defendants should have put a litigation hold in place”, but determined that “other elements of a spoliation claim, however, are not satisfied here”.  Continuing, Judge Fischer stated:

“Here, the only thing Plaintiff can say with any specificity is that Defendants do not appear to have put a litigation hold in place. Plaintiff cannot show any evidence was actually lost or destroyed. Plaintiff also cannot show that if evidence was lost or destroyed, it would have been beneficial to his case. Instead, Plaintiff’s Brief relies on inferences that such evidence must have existed, and thus must have been lost as a result of Defendants’ failure to institute a litigation hold.”

Referencing Bull v. UPS, Judge Fischer also stated that “[w]ith respect to actual suppression of evidence, the Third Circuit has clarified that a court must determine that the relevant actor suppressed or withheld the evidence in bad faith…A finding of bad faith is therefore ‘pivotal’ to a spoliation determination.”  She found the defendant’s handling of discovery to be “sloppy”, but stated that “in the Court’s estimation, this does not rise to the level of bad faith, particularly given the size and resources of Ford City and the fact that Solicitor is a part-time position.”  As a result, Judge Fischer found the spoliation motion “lacking in specificity and a showing of bad faith” and denied the motion.

So, what do you think?  Should the defendant have been held more accountable for the lack of a litigation hold?  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 Motion for Sanctions Against Veterinary Hospital for Spoliation of ESI: eDiscovery Case Law

In Grove City Veterinary Service, LLC et. al. v. Charter Practices International, LLC, 13-02276 (Aug. 18, 2015), 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.

Case Background

In this breach of contract case between veterinarians and a veterinary hospital, during discovery for this case, one of the plaintiffs was required to search for and produce emails stored in his email archive responsive to the defendant’s requests for production.  In August 2014, the plaintiff attempted to access old emails stored in his email archive, but was unable to locate more than one-hundred folders of archived emails.  Later that month, the plaintiff contacted the defendant’s IT department for help finding the “missing” emails.  A member of the defendant’s IT department requested a time when he could come and assist the plaintiff. In the plaintiff’s response, he disclosed that he sought the emails “[r]egarding a legal matter”. Because the plaintiff’s request was in furtherance of a legal matter, the IT department referred the issue to the defendant’s legal department, which refused further assistance and advised the plaintiffs that the defendant was not responsible for locating documents responsive to its own discovery requests (eventually, however, the plaintiff noted that “some,” but not all, of the missing folders had repopulated to his archive inbox).

Based on the defendant’s refusal to perform the search, the plaintiffs moved for spoliation.  The defendant denied it was responsible for “missing” emails, and in their response, requested an award of attorney fees because of the plaintiffs’ “unjustified” motion for sanctions.

Judge’s Ruling

Noting that a defendant “may be subject to sanctions, particularly dispositive sanctions, only if it committed ‘willful’ spoliation of evidence”, Judge Acosta stated: “Here, Plaintiffs do not establish that the emails were willfully destroyed by CPI, or even that the emails were destroyed at all.”

The plaintiffs relied on a report by its computer forensic analyst to request sanctions for spoliation, but Judge Acosta disputed the reliability of his report, noting that he “produces no evidence which shows CPI’s IT department remotely accessed Baltzell’s computer without permission or tampered with Baltzell’s archived emails in any way”, that he “fails to disclose that, during his analysis of Baltzell’s computer, the computer was not logged into the CPI’s servers where the archived emails are stored” (which meant he wouldn’t have been able to access the files anyway) and that an “excerpt of the activity log showed that CPI IT last remotely accessed Baltzell’s computer on July 2, 2014, well before Baltzell had difficultly(sic) finding the emails in question.”  In addition, the defendant produced evidence that the missing emails were accessible in the plaintiff’s email archive, but that they had been “dragged and dropped” into a folder not typically associated with archived emails.  Judge Acosta concluded that the “absence of the activity log in the record is telling and suggests Jorgensen found no direct evidence of knowing wrongdoing by CPI.”

As a result, Judge Acosta denied the plaintiff’s request for sanctions.  He also denied the defendant’s attorney fees, because “the court cannot conclude Plaintiffs motion was ‘unjustified.’”

So, what do you think?  Was this an open and shut case?  Should the defendant have been awarded attorney fees?  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.

Believe it or Not, Apple v. Samsung is Still Going Strong: eDiscovery Case Law

Remember, the Apple v. Samsung case?  We covered this case so much last year that it had its own category in our four part annual case law review (where we covered 68 unique cases!).  We took a break from covering it this year to focus on other cases where more significant eDiscovery rulings were taking place.  Nonetheless, it appears that Samsung may, just may, finally have to pay some damages to Apple for patent infringement.

According to Law 360 (subscription required), on Friday, 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 (almost as long as this blog has been around!).  “The court is bound to follow the Federal Circuit’s decree as the law of the case,” Judge Koh said in granting the motion.

The Federal Circuit last month rejected Samsung’s bid to delay implementation of an order that it pay Apple $548 million in damages while Samsung appeals the ruling to the U.S. Supreme Court.  In a brief order, a three-judge Federal Circuit panel denied Samsung’s motion asking the court to hold off on issuing its mandate while it petitions the high court for a review.  Samsung’s motion argued that a retrial on damages is likely and a stay would be more efficient, but Apple quickly argued that Samsung hadn’t given any reason why the Supreme Court would even agree to hear the case, let alone overturn the Federal Circuit’s ruling.

Apple won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts (ultimately reduced to the current $548 million), as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”, but ultimately may have lost the war when the court refused to ban Samsung from selling products that were found to have infringed on Apple products (that is still being disputed in the courts, too).  This case has also had disputes over eDiscovery cost reimbursement and an adverse inference sanction for Samsung for failing to turn off “auto-delete” of emails after the case began.  In other words, this case is a legal blogger’s dream!  :o)

Samsung indicated in a filing on Friday that if Judge Koh entered partial final judgment, it would appeal the decision to the Federal Circuit and its outside counsel said during the hearing that Samsung retains the right to do so.  Apple’s outside counsel referred to a possible appeal as “frivolous” and Judge Koh remarked during the hearing “If you want to file a frivolous appeal, I guess that’s your right”.

In this case, nothing would be surprising, except for the case ending quickly, which it shows no signs of doing.

So, what do you think?  Have you been following Apple v. Samsung?    Will it 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.

Plaintiff’s Continued Disputes with Curling Iron Manufacturer Getting Hairy: eDiscovery Case Law

In Wilson v. Conair Corp., 1:14-cv-00894-WBS-SAB (E.D. Cal. Aug. 17, 2015), California Magistrate Judge Stanley A. Boone denied the plaintiff’s motion for the Court to establish dates by which the defendant must produce ESI and ordered the parties to meet and confer (again), warning that if the parties could not reach a resolution, all counsel would be required to personally appear before the court and be prepared to engage in an extended, court-supervised meet and confer session that could require an all-day appearance.

Case Background

In this product liability class action, the plaintiff previously filed a motion to compel which was granted in part and denied in part on April 30, in which the defendant was ordered 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.  In addition, the plaintiff also filed a motion to compel production of “all Products returned to Conair for problems related to sparking, flashing, popping, fires, or any line cord failure or malfunction” for testing.  Judge Boone denied that motion since the action was “still in the pre-class certification stage of discovery”.

In the joint statement, the plaintiff included a motion to compel production of discovery granted in the Court’s prior order, seeking to have the Court establish dates by which Defendant must produce e-mails and additional consumer complaints.  The defendant objected, contending that the plaintiff added this second motion to compel after the joint statement had been approved by the defendant and without providing the defendant with an opportunity to address the motion.

Judge’s Ruling

Agreeing with the defendant, Judge Boone denied the plaintiff’s motion for the Court to establish dates by which Defendant must produce ESI discovery, stating that the “parties are ordered to meet and confer in an attempt to establish the appropriate scope of the discovery requested and an acceptable timeline for Defendant to produce documents responsive to discovery requests”.

To provide a little motivation for a cooperative meet and confer session, Judge Boone added this:

“The parties have shown that meet and confer efforts in this action have not been successful in resolving these disputes and each assert it is due to the fault of the other party. Due to the parties’ inability to meet and confer and resolve these issues, the parties are advised that the personal appearance of all counsel shall be required for any further motion to compel that is filed with the Court. The parties are encouraged to work together during meet and confer sessions prior to any scheduled hearing. However, if a resolution is not reached prior to the scheduled hearing, the parties shall be required to personally appear and should plan to engage in an extended meet and confer session with the assistance of the Court which could require an all-day appearance on the day of the scheduled hearing.”

So, what do you think?  Should more courts propose to preside over meet and confer sessions?  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.

Defendant Gets Summary Judgment, Not Dismissal, Due to Plaintiff’s Wiping of Hard Drive: eDiscovery Case Law

In Watkins v. Infosys, 14-0247 (W.D. Wa., July 23, 2015), 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.

Case Background

In this discrimination case, the defendant’s forensic expert determined that the plaintiff performed a Bing search for the term “disk wipe” and downloaded and installed file wiping software onto the hard drive of her work computer around October 20, 2013, and ran the program to wipe files.  In addition, eleven external media drives had been connected to the plaintiff’s laptop in the days prior to the disk wipe.  Furthermore, the plaintiff perjured herself when she stated that “she did not `remove’ things from Defendant’s premises,” and that she “followed procedures typical with such litigation . . . to avoid the alteration or deletion of documents, in addition to preserving data back-ups relating to her employment.”

The plaintiff ultimately admitted in her deposition that she wiped the files, claiming that she did so out of concern for information preservation and client confidentiality.  In a supplemented response filed on the last day of discovery, the plaintiff again refused to turn over the wiped contents of her work computer, claiming that all of the files passed through the defendant’s servers (so the defendant presumably had copies), that the unproduced files were “vast and irrelevant to the claims or controversies in this case” and that she was “in the process of replicating all documents that she retained and will provide the same to Defendant upon their soonest availability.”

Judge’s Ruling

Judge Coughenour stated that he found the plaintiff’s responses “both illogical and unbelievable”, noting that her “brief in response to Defendant’s motion for the sanction of dismissal only exacerbates the problem…There, Plaintiff regurgitates flimsy justifications for wiping her disk drive, doubles-down on her unsupported argument about the irrelevance of the wiped files, and asserts blankly that “there has been no actual suppression or withholding of evidence since the entire content of Plaintiff’s computer has been produced to Defendant.”

With the spoliation (and associated perjury) clear, Judge Coughenour then turned his attention to determining the appropriate sanctions.  To consider dismissal, he noted the requirement to weigh five factors: (1) the public’s interest in expeditious resolution of litigation, (2) the court’s need to manage its dockets, (3) the risk of prejudice to the party seeking sanctions, (4) the public policy favoring the disposition of cases on their merits, and (5) the availability of less drastic sanctions.  Reviewing the five factors, Judge Coughenour found “that three weigh in favor of dismissal and two do not” and, while describing it as “an incredibly close call”, he stated that “the Court prefers to address this case, finally, on its merits.”  Therefore, he denied the defendant’s motion for dismissal, opting instead to grant a motion for summary judgment.  Judge Coughenour also ordered plaintiff’s counsel to show cause as to why sanctions should not be issued against them.

So, what do you think?  Should the court have granted the motion for dismissal?  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 Rules that State Agency is Not Responsible for Emails Deleted via the Retention Policy of Another State Agency: eDiscovery Case Law

In Wandering Dago, Inc. v. N.Y. State Office of Gen. Servs., No. 1:13-CV-1053 (MAD/RFT), (N.D.N.Y. May 29, 2015), 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”).

Case Background

In this First Amendment case where the plaintiff contended that a set of NYRA Defendants and another set of state actors violated the First (Free Speech Clause) and Fourteenth (Equal Protection Clause) Amendments of the United States Constitution for denying its food trucks to provide services at the Saratoga Race Course and an outdoor lunch program based on the plaintiff company’s name.  The plaintiff’s exclusion from the race track occurred after several complaints were received, including an email from the Deputy Secretary at the NYRA, concerned that “the fallout from authorizing this truck will inevitably land on NYRA”.

After the media reported that “an unidentified state official” complained, the Deputy Secretary emailed the Governor’s Executive Chamber identifying himself as that official and he was eventually identified in court as that “unidentified state official”. However, the NYRA eventually settled and the Deputy Secretary was never named as a defendant, leaving the employees of the Office of General Services (“OGS”), who had denied the plaintiff’s applications for the outdoor lunch program, as the remaining defendants.

During discovery, the plaintiff requested production of the non-party Deputy Secretary’s emails, but they had been automatically destroyed pursuant to New York State’s Email Retention Policy. As a result, the plaintiff thereafter sought an adverse inference (as well as further discovery, costs and attorneys’ fees) against the remaining OGS defendants and their litigation counsel – an Assistant Attorney General – for the deletion of the Deputy Secretary’s emails.  The defendants objected, citing that they had no control over the Deputy Secretary’s emails and litigation counsel did not represent the nonparty Deputy Secretary at the time of the automatic deletions and had no legal authority to direct a preservation hold.

Judge’s Ruling

Judge Treece, agreeing with the defendants, stated that “the individual Defendants correctly assert that they have no control over {the Deputy Secretary’s} emails, the Executive Chamber’s emails, or over other emails pertaining to NYRA. Instead, when litigation was commenced against them, they and their agency, OGS, met their obligation by preserving those documents that were within their control and possession, and ultimately disclosed 1000 pages of documents relevant to the Empire Plaza Summer Program, including emails.”

Continuing, Judge Treece stated that the “Plaintiff suffers under the erroneous notion that when a governmental agency and its officials are defendants in any litigation, they and their counsel are required to preserve and produce documents belonging to another governmental agency.”  He also stated that “[c]onsidering that hundreds of lawsuits are filed daily against New York State,” that “requiring each agency and thousands of officials to institute a litigation hold every time a party contemplates or even commences litigation against another agency would paralyze the State.”  Finding that the plaintiff had also failed to prove a culpable state of mind and also failed to prove that the missing evidence would have been favorable to it, Judge Treece found that the plaintiff had failed to meet its burden and denied its request for sanctions, as well as its request for additional discovery and costs and attorney fees.

So, what do you think?  Should each state agency have its own separate duty to preserve or should the entire state be responsible to preserve data?  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 Acknowledges Lack of Expertise to Recommend Search Methodology, Orders Parties to Confer: eDiscovery Case Law

In ACI Worldwide Corp. v. MasterCard Technologies, LLC and MasterCard International, Inc., 8:14CV31 (Jul. 13, 2015), 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.

Case Background

In this action where the plaintiff alleged the defendants violated a licensing agreement and disclosed confidential information regarding the plaintiff’s middleware, the plaintiff sought ESI from the defendants to determine whether they continued using information regarding the middleware after expiration of the license agreement and whether they still use it in their source code today.

The defendants objected to producing the ESI as requested, stating that the requests were burdensome and also claiming risks that the requests posed to the defendants’ production systems. The plaintiff, in an effort to address the defendants’ concerns, revised the discovery requests several times and devised a search protocol for the defendants to use in retrieving the requested information – when the defendants refused to use the devised search protocol, the plaintiff filed a motion to compel.

Judge’s Ruling

Noting that “Defendants do not dispute the relevance of the requested information”, Judge Gossett found that “Plaintiff has shown a particular need for the information and that the information is relevant to the issues involved in this action”.  Judge Gossett stopped short of granting the plaintiff’s motion though, stating:

“However, 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. Based on the information before it, the Court does not even know whether a search methodology or protocol exists (or could exist) which would allow the requested information to reasonably be retrieved.”

As a result, Judge Gossett chose to “order the parties to once again confer in an effort to reach an agreement regarding the search methodology to be employed in retrieving the requested information”, with a plan to “refer the matter to a special master” if the parties would be unable to agree.

So, what do you think?  Should the court have been able to recommend the methodology or was the judge wise to order the parties to try again to work it out?  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.

August Case Law Pop Quiz Answers!: eDiscovery Case Law

I’m out of the office for a couple of days, taking the kiddos on one more overnight family vacation before school starts next week. Yesterday, we gave you a pop quiz for the eDiscovery case law that we’ve covered recently. If you’re reading the blog each day, these questions should be easy! Let’s see how you did. Here are the answers.

1. In which case was the defendant ordered to produce metadata?

A. Malone v. Kantner Ingredients

B. Gladue v. Saint Francis Medical Center

C. Crews v. Avco Corp.

D. Younes, et al. v. 7-Eleven, Inc.

2. In which case did the court of appeals uphold a “death penalty order” against the defendant for discovery violations

A. Malone v. Kantner Ingredients

B. Gladue v. Saint Francis Medical Center

C. Crews v. Avco Corp.

D. Younes, et al. v. 7-Eleven, Inc.

3. In which case(s) was a request for sanctions denied by the court?

A. Malone v. Kantner Ingredients

B. Gladue v. Saint Francis Medical Center

C. Sanctions were denied in both cases

D. Sanctions were denied in neither case

4. In which case did the court deny the request for “limitless” access to the plaintiff’s Facebook account?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

5. In which case was the defendant ordered to produce further ESI in native format or TIFF format with the associated metadata?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

6. In which case was the defendant ordered to produce employees’ personal data in an EEOC dispute?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

7. In which case was the defendants sanctioned over $200,000 for using “Crap Cleaner” software, among other violations?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

8. In which case was the plaintiff taxed over $63,000 to be paid to the prevailing defendant in the case?

A. Procaps S.A. v. Patheon Inc.

B. Compass Bank v. Morris Cerullo World Evangelism

C. Willett, et al. v. Redflex Traffic Systems, Inc.

D. Fitbug Ltd. v. Fitbit, Inc.

9. In which case was the plaintiff sanctioned for failing to preserve an audio recording, as part of “wilfully” engaging in spoliation of relevant evidence?

A. Procaps S.A. v. Patheon Inc.

B. Compass Bank v. Morris Cerullo World Evangelism

C. Willett, et al. v. Redflex Traffic Systems, Inc.

D. Fitbug Ltd. v. Fitbit, Inc.

10. In which case did the court order the deposition of an expert to evaluate issues resulting from plaintiff’s deletion of ESI?

A. Procaps S.A. v. Patheon Inc.

B. Compass Bank v. Morris Cerullo World Evangelism

C. Willett, et al. v. Redflex Traffic Systems, Inc.

D. Fitbug Ltd. v. Fitbit, Inc.

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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.

August Case Law Pop Quiz!: eDiscovery Case Law

I’m out of the office for a couple of days, taking the kiddos on one more overnight family vacation before school starts next week. So, here’s an opportunity to to catch up on cases we’ve covered recently with a case law pop quiz.

If you’re reading the blog each day, these questions should be easy! If not, we’ve provided a link to the post with the answer. We’re that nice. Test your knowledge! Tomorrow, we’ll post the answers for those who don’t know and didn’t look them up.

1. In which case was the defendant ordered to produce metadata?

A. Malone v. Kantner Ingredients

B. Gladue v. Saint Francis Medical Center

C. Crews v. Avco Corp.

D. Younes, et al. v. 7-Eleven, Inc.

2. In which case did the court of appeals uphold a “death penalty order” against the defendant for discovery violations

A. Malone v. Kantner Ingredients

B. Gladue v. Saint Francis Medical Center

C. Crews v. Avco Corp.

D. Younes, et al. v. 7-Eleven, Inc.

3. In which case(s) was a request for sanctions denied by the court?

A. Malone v. Kantner Ingredients

B. Gladue v. Saint Francis Medical Center

C. Sanctions were denied in both cases

D. Sanctions were denied in neither case

4. In which case did the court deny the request for “limitless” access to the plaintiff’s Facebook account?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

5. In which case was the defendant ordered to produce further ESI in native format or TIFF format with the associated metadata?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

6. In which case was the defendant ordered to produce employees’ personal data in an EEOC dispute?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

7. In which case was the defendants sanctioned over $200,000 for using “Crap Cleaner” software, among other violations?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

8. In which case was the plaintiff taxed over $63,000 to be paid to the prevailing defendant in the case?

A. Procaps S.A. v. Patheon Inc.

B. Compass Bank v. Morris Cerullo World Evangelism

C. Willett, et al. v. Redflex Traffic Systems, Inc.

D. Fitbug Ltd. v. Fitbit, Inc.

9. In which case was the plaintiff sanctioned for failing to preserve an audio recording, as part of “wilfully” engaging in spoliation of relevant evidence?

A. Procaps S.A. v. Patheon Inc.

B. Compass Bank v. Morris Cerullo World Evangelism

C. Willett, et al. v. Redflex Traffic Systems, Inc.

D. Fitbug Ltd. v. Fitbit, Inc.

10. In which case did the court order the deposition of an expert to evaluate issues resulting from plaintiff’s deletion of ESI?

A. Procaps S.A. v. Patheon Inc.

B. Compass Bank v. Morris Cerullo World Evangelism

C. Willett, et al. v. Redflex Traffic Systems, Inc.

D. Fitbug Ltd. v. Fitbit, Inc.

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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 Plaintiff to Re-Review 95% of its Production Classified as “Highly Confidential”: eDiscovery Case Law

In Procaps S.A. v. Patheon Inc., 12-24356-CIV-GOODMAN, 2014 U.S. Dist. (S.D. Fla. July 20, 2015), 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.

Case Background

In this case, the parties entered into a stipulated confidentiality agreement whereby they designated confidential documents as either “Confidential Information” or “Highly Confidential Information”, with the parties agreeing that only counsel could view the “Highly Confidential Information”. The parties agreed to use the “Highly Confidential Information” category only for “information that truly requires highly sensitive protection.”

The defendant challenged both the plaintiff’s method of marking highly confidential documents and the number of documents marked.  The plaintiff marked each highly confidential document with the “highly confidential” legend but did so in a way which prevented the defendant from doing a computer search for the term “highly confidential.”  The defendant alleged that its inability to perform these searches significantly prejudiced its defense of the case.

Also, 148,636 documents were produced by the plaintiff in the forensic analysis, and the plaintiff designated 141,525 of them as “highly confidential” (95.2%).   The defendant also determined that 90.9% of the plaintiffs’ entire production (141,696 of 155,759 documents) was branded by the plaintiff as “highly confidential.”  The defendant’s statistical sample review of the branded “highly confidential” documents identified documents generated by the defendant itself, as well as SPAM emails – documents that would clearly not be “highly confidential”.  As a result, the defendant filed a motion for re-designation of highly confidential documents on July 13, 2015 and also sought fee reimbursement of $34,385.69.  The plaintiff ultimately acknowledged the “apparent over-designation of documents as Highly Confidential”, noting that it was performed by a third party vendor.

Judge’s Ruling

In a previous ruling in this case, Judge Goodman began his opinion by quoting both eighteenth century English writer Samuel Johnson and the recently departed B.B. King; in this ruling, he began by quoting song lyrics from a song by Christine McVie.  Judge Goodman, characterizing the plaintiff’s designations as “indiscriminate”, rejected the plaintiff’s proposed alternatives for the defendant or the special master to identify the documents to be re-reviewed, stating that “Procaps’ indiscriminate designation of documents as highly confidential should not lead to the “result of improperly shifting the cost of review of confidentiality” to Patheon.”

Instead, noting that “Procaps cannot avoid its discovery obligations by shifting blame to the third party it hired for the project” and observing that “Procaps’ attorneys presumably performed the final review, and one or more of its attorneys realized, or should have realized, that a 95% highly confidential, AEO (attorney’s eyes only) designation rate is problematic and questionable (or “absurd”) on its face”, Judge Goodman ordered the plaintiff to re-review and re-designate those documents within ten days.  He also awarded the defendant $25,000 of the $34,385.69 fees requested.

So, what do you think?  Was the court correct in ordering the plaintiff to re-review the documents in such a short period of time?  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.