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Plaintiff Tells Defendant “File Motion to Compel”, Defendant Does and Wins: eDiscovery Case Law

In White v. Relay Res. & Gen. Servs. Admin., NO. C19-0284-JCC (W.D. Wash. Feb. 14, 2020), Washington District Judge John C. Coughenour granted the defendant’s motion to compel, requiring the plaintiff to provide documents responsive to the defendant’s requests for production, provide the information requested in each interrogatory and provide initial disclosures and that “[f]ailing to provide this information may result in sanctions under Rule 37, including dismissal of the matter.”

Case Background

In this employment discrimination claim against the defendant where the plaintiff alleged the defendant discriminated against her because she is deaf, the defendant served 31 requests for production and 13 interrogatories on the plaintiff in November 2019.  The plaintiff responded to these requests about a month later, objecting to the requests for production on various grounds and failing to indicate whether she was withholding responsive documents.  In response to the interrogatories, the plaintiff raised broad objections and did not provide any of the requested information, indicating in each response that she would later provide the requested information if it was “relevant” to responding the interrogatory.  The defendant also claimed that the plaintiff did not produce initial disclosures.

The defendant attempted to meet and confer with the plaintiff two days after receiving her responses, expressing concern with sufficiency of her responses and offering an extension for the plaintiff to supplement her responses.  The defendant also requested an in-person meeting to attempt to resolve the discovery dispute, but the plaintiff refused to meet outside the State of Virginia and also refused a teleconference, stating that she did “not have any line of communication open except emails and written communication.”  So, the defendant proceeded to email the plaintiff specific examples of its “serious concerns regarding the insufficiency of [her] responses.” The plaintiff then supplemented her responses to the requests for production with three screenshots of email correspondence between the plaintiff and the defendant’s employees about benefits, as well as a scanned page from a yearbook.  In response, the defendant informed the plaintiff that if she did not provide responsive documents or answers to its interrogatories by the extended deadline, it had no choice but to file a motion to compel with the Court.  Instead of further supplementing her responses, the plaintiff replied, “Ok. File Motion to Compel.”

Judge’s Ruling

Judge Coughenour first noted that “although the parties did not meet in person or have a telephone conference, Defendant made a good faith effort to satisfy the meet-and-confer requirement before filing the instant motion to compel. Defendant made multiple attempts to resolve its discovery dispute before reaching a genuine impasse on December 30, 2019, when Plaintiff told Defendant to ‘File Motion to Compel.’…Consequently, Defendant has satisfied the meet-and-confer requirement.”

With regard to the requests for production, Judge Coughenour stated: “the Court has reviewed Defendant’s requests for production, and they appear to be relevant and proportional to the case… The Court acknowledges Plaintiff is not represented by counsel and that she may be responding to and cooperating with Defendant to the best of her ability…Nevertheless, Plaintiff’s perfunctory objections do not reflect a good faith effort to comply with discovery rules. Plaintiff must make reasonable efforts to provide documents responsive to Defendant’s requests for production. Failure to do comply may result in sanctions, including dismissal of the present action.”

With regard to the interrogatories, Judge Coughenour found “Defendant’s interrogatories to be facially relevant and proportional to the needs of the case.”  He also stated: “Here, Plaintiff raised vague, broad objections to each of Defendant’s 13 interrogatories and did not provide any of the requested information…Within 30 days, Plaintiff must provide Defendant with the information requested in each interrogatory. Failing to make reasonable efforts to respond to Defendant’s interrogatories may result in sanctions under Rule 37, including dismissal of the matter.”

Judge Coughenour also stated, in fully granting the motion to compel: “Plaintiff is ordered to provide Defendant with initial disclosures at this time. Failing to provide this information may result in sanctions under Rule 37, including dismissal of the matter.”

So, what do you think?  Is the plaintiff’s failure to obtain counsel representation jeopardizing her case before it even gets going?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Rules Defendant’s Production Need Not Be Lost in Translation: eDiscovery Case Law

In NY Machinery v. The Korean Cleaners Monthly, No. 2:17-12269-SDW-ESK (D.N.J. Jan. 6, 2020), New Jersey Magistrate Judge Edward S. Kiel, noting that “Rule 34 does not address which party has the obligation to translate documents into English” denied the plaintiffs’ application seeking to compel the defendants to translate documents served as part of their document production.

Case Background

In this case involving allegations unfair competition, false advertising, defamation, false light and trade libel (among other allegations), the plaintiffs wrote to the defendants in April 2019 asserting various deficiencies in the defendants’ discovery responses, including this statement:

“Defendants’ document production contains numerous documents, including emails, that appear to be written in Korean or Japanese. Plaintiffs have incurred the expense of obtaining certified English translations of documents contained in their production. We expect Defendants to promptly produce certified translations of these documents.”

The parties continued to exchange correspondence relating to discovery disputes, which included the plaintiffs’ demand that the defendants provide certified translations of documents and a dispute about a telephone-status conference on September 6, 2019 and whether a judge ordered the defendants to provide certified translations of Defendants’ document production by September 22, 2019.

Judge’s Ruling

Judge Kiel noted: “The question before the Court is: Who bears the cost of translating foreign-language documents produced in response to a request for production of documents? There is no clear answer in the Third Circuit.”

But, Judge Kiel also stated: “The Court, however, finds the analysis and decision in Nature’s Plus Nordic A/S v. Natural Organics, Inc. 274 F.R.D. 437, 439 (E.D.N.Y. 2011) to be persuasive and adopts it herein.” {emphasis added}  Judge Kiel noted that ruling “held that Rule 34 ‘d[oes] not provide the district court with any authority to direct the party producing documents to translate them and that such orders violate the well-accepted principle that each party bear the ordinary burden of financing his own suit… and that each party … is expected to bear any special attendant costs.’…Thus, absent a showing of ‘prejudice to [the requesting party for] undue delay,’ the party responding to document demands has no obligation to provide translations to foreign-language documents.”

Noting that “Plaintiffs do not claim that the documents produced by Defendants in response to Plaintiffs’ discovery demands are irrelevant” and that “to satisfy their obligation under Rule 34, Defendants produced all documents responsive to Plaintiffs’ request, including the foreign-language documents at issue”, Judge Kiel denied the plaintiffs’ request to have the defendants translate the documents or shift any of the costs for translating the documents to the defendants.

So, what do you think?  Should parties be responsible for translating foreign language documents they produce?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Plaintiffs’ Failure to “Hurry” Leads to Denial of Motion to Compel: eDiscovery Case Law

Sorry, I couldn’t resist… ;o)

In Hurry Family Revocable Trust, et al. v. Frankel, No. 8:18-cv-2869-T-33CPT (M.D. Fla. Jan. 14, 2020), the Florida District Court judge denied the Plaintiffs’ Motion to Compel Production of Documents and Request for Sanctions, ruling the motion to be untimely, given that the extended discovery deadline had passed, and also rejected the plaintiffs’ argument that the defendant had willfully avoided producing certain emails.

Case Background

In this dispute involving a former employee of the plaintiffs and claims that he used their confidential information and trade secrets, the Court entered a Case Management and Scheduling Order (CMSO) in January 2019 establishing various deadlines, including a discovery deadline of July 26, 2019, and a trial date of February 3, 2020.  The CMSO warned the parties that “[t]he Court may deny as untimely all motions to compel filed after the discovery deadline.”  In May 2019, the plaintiffs filed a motion to modify the CMSO and the Court extended the discovery deadline to August 9, 2019, but also cautioned the parties, however, that it would “be disinclined to extend…the [discovery] deadline[ ] further.”  Nonetheless, the plaintiffs sought to modify the CMSO two more times – the second time after the discovery deadline on August 12, 2019 – but the court denied both motions, stating after the second one:

“The Court has already extended the discovery deadline in this case to August 9, 2019, at the Plaintiffs’ request. The Court has also repeatedly warned Plaintiffs that it would be disinclined to extend deadlines further. Yet Plaintiffs filed this third motion to modify the Case Management and Scheduling Order on August 12, 2019, after the extended discovery deadline had passed…..As for the documents that Plaintiffs claim Defendant has failed to produce, Plaintiffs were aware of those missing documents since August 6 and/or 7, 2019, and failed to file a motion to compel prior to the discovery deadline. As the Court advised in its Case Management and Scheduling Order, ‘[f]ailure to complete discovery within the time established by this Order shall not constitute cause for a continuance.’”

Roughly four months after the Court’s August 20 Order, the plaintiffs filed an instant motion to compel after the plaintiffs received five emails from third parties that were not produced by the plaintiff.  The plaintiff requested an order directing that: (1) the defendant’s “email accounts, cloud storage, and digital devices” be subjected to a “third party search” for responsive documents at his expense; (2) “[Frankel] be precluded from testifying or offering evidence on issues related to categories of discovery withheld by [Frankel];” and (3) “adverse inferences be made against [Frankel] related to categories of discovery withheld by [Frankel].”

Judge’s Ruling

Noting that “Hurry waited to submit the instant motion until four months after the discovery deadline and only two months before trial”, the court stated: “Hurry’s proffered excuse for this extended delay is unpersuasive. When pressed on the matter at the hearing, Hurry conceded that it knew about the Koonce and FINRA emails by no later than early August 2019. It also admitted that it elected to place the instant motion on the ‘backburner’ while it dealt with its motion for summary judgment. Hurry’s evident lack of diligence in pursuing its motion to compel alone is fatal to that request.”

Continuing, the court stated: “Even were that not the case, Hurry has not shown that it is entitled to the relief it seeks. The central premise of its motion is that Frankel willfully avoided producing the Koonce and FINRA emails. In both his response and at the hearing, however, Frankel persuasively argued that his failure to produce these emails was not purposeful, but stemmed from the fact that the emails were not detected during the search Frankel conducted in connection with Hurry’s production requests. Frankel also noted he informed Hurry of the parameters of that search in advance, and Hurry did not object to those parameters.”

So, what do you think?  Should identification of new emails from third parties justify re-opening discovery?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Enters Parties’ Order for Discovery of ESI: eDiscovery Case Law

It’s a rare, if not unheard of, case law post that discusses an agreement between parties, not a dispute!  Just in time for the holidays!  Actually, early last month, but still…  ;o)

In Shotwell, et al. v. Zillow Group Inc., et al., No. C17-1387-JCC (W.D. Wash. Nov. 7, 2019), Washington District Judge John C. Coughenour entered an order regarding the discovery of electronically stored information (“ESI”), pursuant to the parties’ stipulation and proposed order.

The order included the following sections:

  • General Principles, which notes, along with proportionality guidelines per Fed. R. Civ. P. 26(b)(1), that “An attorney’s zealous representation of a client is not compromised by conducting discovery in a cooperative manner.”
  • ESI Disclosures, which states that the parties will disclose within thirty days after the Fed. R. Civ. P. 26(f) conference (or later if agreed) custodians, non-custodial data sources, third party data sources and inaccessible data.
  • Preservation of ESI, which notes guidelines for the parties regarding preservation and what they don’t have to preserve (absent a showing of good cause by the requesting party, that is).
  • Privilege, Guidelines for privilege logs and handling of inadvertent disclosures of privileged documents.
  • ESI Discovery Procedures, includes definitions and specifications for image load file formats, production of hard copy documents and production of ESI (including things like handling of exceptions, production of metadata, handling of duplicates, handling of parent-child relationships, format of Bates numbers and handling of third-party subpoenas). The parties agreed to produce the ESI in single-page Group IV TIFF image format using at least 300 DPI print setting, except for certain files (Excel files, spreadsheet files, .CSV files, source code, audio, and video) which would be produced natively with a placeholder image.  There was a table of metadata to be produced associated with the discovery specifications, but it was not included in the order.
  • Miscellaneous, to cover things like conflict between the provisions of the agreement and the Stipulated Protective Order (the Protective Order will take precedent) and reiteration of protection of privilege.

It’s nice to cover an agreement between parties for a change and this discovery agreement is a good example of parties cooperating effectively on a plan for discovery.

So, what do you think?  Do you see any issues with this agreement?  I predict somebody will have at least one!  ;o)  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Exceptions are the Rule: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on November 12, 2010, when eDiscovery Daily was less than two months old (over nine years ago!).  Despite that, the advice below is still largely as written back then – it is still applicable today pretty much as is.  Enjoy!

Virtually every collection of electronically stored information (ESI) has at least some files that cannot be effectively searched.  Corrupt files, password protected files and other types of exception files are pretty much constant components of your ESI collection and it can become very expensive to make these files searchable or reviewable.  Being without an effective plan for addressing these files could lead to problems – even spoliation claims – in your case.

How to Address Exception Files

The best way to develop a plan for addressing these files that is reasonable and cost-effective is to come to agreement with opposing counsel on how to handle them.  The prime opportunity to obtain this agreement is during the meet and confer with opposing counsel.  The meet and confer gives you the opportunity to agree on how to address the following:

  • Efforts Required to Make Unusable Files Usable: Corrupted and password protected files may be fairly easily addressed in some cases, whereas in others, it takes extreme (i.e., costly) efforts to fix those files (if they can be fixed at all). Up-front agreement with the opposition helps you determine how far to go in your recovery efforts to keep those recovery costs manageable.
  • Exception Reporting: Because there will usually be some files for which recovery is unsuccessful (or not attempted, if agreed upon with the opposition), you need to agree on how those files will be reported, so that they are accounted for in the production. The information on exception reports will vary depending on agreed upon format between parties, but should typically include: file name and path, source custodian and reason for the exception (e.g., the file was corrupt).

If your case is in a jurisdiction where a meet and confer is not required (such as state cases where the state has no meet and confer rule for eDiscovery), it is still best to reach out to opposing counsel to agree on the handling of exception files to control costs for addressing those files and avoid potential spoliation claims.

Next time, we’ll talk about the types of exception files and the options for addressing them.  Be patient – next Thursday is a holiday!  ;o)

So, what do you think?  Have you been involved in any cases where the handling of exception files was disputed?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Denies Plaintiff’s Request to Hold Non-Party in Contempt for Failing to Produce Native Files: eDiscovery Case Law

In Smith v. TFI Family Services, Inc., No. 17-02235-JWB-GEB (D. Kan. Sep. 4, 2019), Kansas Magistrate Judge Gwynne E. Birzer denied the Plaintiff’s Motion for Order Against Defendant State of Kansas Department for Children and Families to Show Good Cause Why it Should not be Held in Contempt and Motion for Sanctions for failing to produce ESI in native format with associated metadata.  Judge Birzer found that “Plaintiff cannot point to a ‘specific and definite’ section of the Court’s June 8, 2018 Order requiring specific types of ESI be produced or requiring records be produced in native format with associated metadata” and also that “Plaintiff has not made a particularized showing” why re-production of the PDF documents in native format with associated metadata “is relevant to the case at hand”.

Case Background

In this case involving alleged abuse of a child placed in a home by the defendants, the Court conducted an in-person hearing regarding the Kansas State Department of Children and Families’ (“DCF”) Amended Motion to Quash Subpoena and ultimately granted in part and denied in part the Motion to Quash on June 8, 2018, ordering DCF to produce certain records by July 31, 2018, with any responsive records subject to in-camera review to be produced directly to the Court for review.  DCF timely produced the records by July 31.  On October 24, 2018, after a review of the records submitted in-camera, the Court entered an order directing DCF to produce most of those documents to the plaintiff by November 30, 2018 and DCF timely produced those records as well.

On May 6, 2019, Plaintiff filed an instant Motion arguing DCF failed to comply with the Court’s June 28, 2018 Order because its November production did not contain six identified types of ESI in native format with associated metadata, instead producing the court-ordered documents (consisting of 5,767 pages) in PDF format on a USB flash drive.  The plaintiff asked the Court to issue an order: (1) requiring DCF to show good cause for why it should not be held in contempt of the Court’s June 28, 2018 Order; (2) requiring DCF to show good cause why it should not produce the requested ESI; and (3) imposing various sanctions on DCF pursuant to Fed. R. Civ. P. 37(b)(2)(A) for not obeying a discovery order.

Judge’s Ruling

Noting that “the subpoena asks for the records to be produced in ‘electronic format,’ but gives no specifics regarding whether the format should be PDF or native format with metadata intact”, Judge Birzer stated: “The Court is at a loss as to why Plaintiff would believe the June 8, 2018 Order required Defendant to produce the six above types of ESI when the subpoena did not specify it and the matter was not presented to the Court for consideration.”  As a result, Judge Birzer found that “the production of records in PDF format on an USB flash drive adequately satisfied DCF’s obligation under the June 8, 2018 Order, the subpoena and Rule 45” and that “there is no occasion for the undersigned Magistrate Judge to certify facts to the District Judge or to issue an order for DCF to show cause why it should not be held in contempt.”

Noting that “DCF is not a party to this action”, Judge Birzer also found that “requiring a non-party to spend time and money to re-produce 5,767 pages of PDF documents in native format with metadata would be burdensome and not proportional to the needs to the case considering Plaintiff has provided little reason as to why the native format and metadata would be relevant.”  As a result, Judge Birzer denied the plaintiff’s motion.

So, what do you think?  Could the plaintiff have done a better job of specifying its production format requirements up front?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Denies Sanction Request for Attorney Who Hung Up on Opposing Counsel One Time: eDiscovery Case Law

In Ewing v. Aliera Healthcare, No. 19cv845-CAB-LL (S.D. Cal. Aug. 12, 2019), California Magistrate Judge Linda Lopez denied the plaintiff’s motion for sanctions for “rudely and unprofessionally” hanging up on the plaintiff during a call that defendant’s counsel made to the plaintiff to cancel a meet and confer appointment.

Case Background

In support of his motion, the plaintiff stated that “Local Rule 83.4 requires civil, courtesy and dignity in all communication, oral and written.”  The plaintiff also noted that defendant’s counsel “admitted to hanging up the phone on Plaintiff to the Court’s law clerk” and also requested permission to file a reply.

The defendant opposed the plaintiff’s motion on the grounds that “Plaintiff has failed to establish why Judge Lopez should sanction counsel for Aliera” noting that at issue is only “one phone call between Plaintiff and Aliera’s counsel on July 24, 2019.”  The defendant also stated:

“Plaintiff insists on recording every phone conversation, despite counsel for Aliera objecting to such recordings…The reason counsel cut his July 24 phone conversation short was because he had already confirmed that the meet and confer meeting with Plaintiff would take place on July 30; not on July 25 as Plaintiff later demanded, and despite Plaintiff’s protestations and desire to schedule it for the week of July 22…Plaintiff [then] insisted on demanding why Judge Lopez allowed Aliera’s counsel, Dwight Francis, to appear at the ENE on July 1, 2019. This extraneous demand was irrelevant to the topic of the July 24 call, and followed up on a letter Plaintiff had earlier written counsel on the same non-issue. Counsel, who was extremely busy, informed Plaintiff that he would need to take that issue up with Judge Lopez, and ended the call.”

Judge’s Ruling

Judge Lopez began her ruling by stating: “As an initial matter, the Court denies Plaintiff’s request for leave to file a reply. The Court has reviewed the briefing and finds that it has sufficient information on this issue. Notably, Plaintiff’s Motion lacks any law or authority in support of the request for sanctions.”

She ended her ruling by stating: “Here, the conduct at issue in Plaintiff’s Motion, defense counsel hanging up the phone prematurely one time during a conversation with Plaintiff, does not warrant sanctions. Indeed, defense counsel’s opposition sets forth a reasonable explanation of why defense counsel “cut short” the July 24, 2019 phone conversation. Accordingly, the Court DENIES Plaintiff’s request to impose sanctions. The Court also DENIES Defendant’s request to order Plaintiff to compensate Defendant for the time incurred in having to oppose the instant Motion. However, the Court reminds the parties that any future unprofessional conduct or otherwise improper conduct (including but not limited to filing motions with no basis in the law) may warrant a motion for sanctions by either party.”

So, what do you think?  Should attorneys be sanctioned for hanging up on each other?  Or for filing sanctions motions for opposing counsel doing so?  Or both?  ;o)  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Plaintiff Requests His Entire PST File, Court Says No: eDiscovery Case Law

In Russell v. Kiewit Corp., No. 18-2144-KHV (D. Kan. June 4, 2019), Kansas Magistrate Judge James P. O’Hara denied the plaintiff’s motion seeking to compel supplemental discovery responses by the seven defendants, including the request to receive his entire e-mail personal storage (PST) file, agreeing with the defendants’ contention that the request was overly broad and not proportional.

Case Background

In this case where the plaintiff alleged he was fired in retaliation for opposing age discrimination, disability discrimination, and FMLA violations in the workplace through his role in the defendant’s human resources department, the parties had several unresolved issues that they could not agree on with regard to discovery.  The defendants proposed that the scope of electronic discovery would run from May 27, 2015 through April 22, 2016 and focus on specifically identified custodians using agreed and limited search terms, but the plaintiff did not agree with those propose limitations.

Among the areas where there were disputes were: 1) plaintiff’s email, where the plaintiff moved to compel defendants to produce the e-mail file from his entire employment with defendants as a PST file; 2) the scope of discovery searches; 3) discovery requests to additional entities beyond the plaintiff’s employer; and 4) the plaintiff’s request for policies related to the HR and IT operations of the defendants for whom plaintiff was not an employee.  The parties did resolve their dispute over production of the data from plaintiff’s company-issued iPhone.

Judge’s Ruling

With regard to production of the plaintiff’s PST file, the plaintiff argued that the defendants had an unfair advantage by having access to e-mails that the plaintiff could not access, also arguing that it was proportional to allow him to “see all emails in context maintained in his own email folders” because it “equalizes access.”  The defendants argued the plaintiff’s request was overly broad and not proportional, asserting they had searched for all terms requested by plaintiff, as well as many additional search terms not requested by plaintiff, and produced all responsive e-mails.

With regard to this dispute, Judge O’Hara stated: “The court agrees with defendants. Rule 26(b)(3)(c) relates to a party’s ‘own previous statement about the action or its subject matter.’ To the extent plaintiff seeks his own e-mails related to this action, those were captured in the e-mails defendants produced in response to plaintiff’s search terms, plus the additional terms defendants searched…Conspicuously, plaintiff has not cited any authority for the proposition that Rule 26(b)(3)(C) requires the production of all statements plaintiff has ever made in an e-mail about any subject, such that his entire e-mail file during his tenure with Kiewit Energy must be produced.

Although plaintiff is entitled to request the production of files in .pst format, which are ‘generally associated with the Microsoft Outlook email program,’ Document Request No. 29 seeks the entire file for the ‘email account assigned to plaintiff during his employment with defendants.’  Plaintiff purports to address the ‘proportionality standpoint’ by arguing the .pst file would allow him to more efficiently review the file. But producing the entire PST is ‘simply requesting discovery regardless of relevancy,’ which most definitely is not the standard under the 2015 amendments to Rule 26(b). The language in Document Request No. 29 is not tied to plaintiff’s protected activity or his employment with the company; rather, plaintiff requests the entire e-mail account during the entire length of his employment. That request is facially overly broad and not proportional. Plaintiff has not shown how every e-mail he has sent and received is relevant to this action, particularly in light of defendants’ production of 775 documents from e-mail searches.  The court sustains defendants’ objection to Document Request No. 29.”

Judge O’Hara also found that “defendants have adequately responded to plaintiff’s discovery requests” and rejected his requests for ESI from other entities, sustaining the defendants’ objection that the requests were overly broad and not proportional.

So, what do you think?  Should a former employee have the right to look at his or her entire email repository in litigation?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Rejects Plaintiff’s Timeliness and Form Served Arguments; Grants Defendant’s Motion to Compel: eDiscovery Case Law

In Frey v. Minter, No. 4:18-CV-191 (CDL) (M.D. Ga. June 12, 2019), Georgia Chief U.S. District Court Judge Clay D. Land rejected the plaintiff’s arguments that the defendant’s discovery requests were untimely and were not properly served and granted the defendant’s motion to compel against the plaintiff.  With regard to the defendant’s motion to compel against a non-party law firm, Judge Clay ordered that firm to provide the defendant with an estimated cost for responding to the requests, and upon payment of those costs, to produce the documents within twenty-one days.

Case Background

In this defamation case filed by one attorney against another attorney and his client regarding their claims of alleged fraudulent and unethical conduct by the plaintiff as a creditor against a former client, the parties filed a joint case management report, proposing a discovery deadline of January 26, 2019 and agreeing that “all discovery must be commenced in time to be completed before this date.”  The parties also agreed that each party would “timely serve discovery requests so that the rules allow for a response prior to the discovery deadline.”  After the plaintiff appealed several of the Court’s rulings in January 2019 and the appeal was dismissed for lack of jurisdiction, the Court found good cause for an amended scheduling order and instructed the parties to submit a joint proposed scheduling order that included an updated discovery deadline.

The parties agreed to a deadline for motions to compel previously issued discovery requests and the Court initially entered an amended scheduling order that provided for no motions to compel, noting that any discovery motions should have been filed during discovery. However, the defendant sought reconsideration, asserting that the parties had agreed that “no new discovery requests would be issued, but that they could seek Court action on requests that had already been issued.”  The plaintiff opposed the motion for reconsideration, anticipating that the defendant might seek to compel responses to discovery requests that were made on the eve of the discovery deadline.

The Court granted the motion for reconsideration and adopted the deadlines that the parties originally proposed, knowing that any motion to compel would likely relate to discovery requests that were served during discovery, even those that were technically untimely under the Case Management and Scheduling Order.

Judge’s Ruling

Judge Clay stated: “Given that the Court had found good cause for an amendment of the scheduling order and had invited the parties to extend all of the deadlines, including the discovery deadline, the Court’s ruling that permitted post-discovery motions to compel likewise included the right to compel responses to any discovery that had been propounded prior to the expiration of the discovery deadline, even if responses to that discovery could not have been made prior to the previous discovery deadline. To hold otherwise would make the Court’s order extending the motion to compel deadline meaningless because there would be no discovery requests that could be compelled. Accordingly, the Court finds that Minter’s motion to compel shall not be denied based upon his failure to serve his discovery requests within the deadline established by the earlier case management order.”

Judge Clay also rejected the plaintiff’s other objection to the motion – that he was not properly served with the requests because he did not consent in writing to service of discovery requests via email.  Noting that the plaintiff had responded to the defendant’s former attorney’s question regarding whether email service to his email address is sufficient for the federal court filings by stating “Yes, this email is good”, Judge Clay stated: “Minter was justified in believing that Frey had consented to service of discovery requests by email. Even if Frey had not so consented, any deficiency in Minter’s service was harmless because it is clear that Frey received the document requests. The Court declines to deny the motion to compel on this ground.”  As a result, the defendant’s motion to compel was granted and the plaintiff was ordered to respond within twenty-one days.

Judge Clay also observed that “Minter also filed a motion to compel against non-party law firm Hunton, contending that the firm failed to respond adequately to his subpoena.”  Noting that “[t]he Court is sensitive about imposing unnecessary costs upon a non-party”, Judge Clay stated that “[t]hat concern can be addressed, however, by requiring Minter to pay for Hunton’s expenses associated with responding to the request.”  As a result, Judge Clay ordered that firm to provide the defendant with an estimated cost for responding to the requests, and upon payment of those costs, to produce the documents within twenty-one days.

So, what do you think?  Should the motion have been denied if they were untimely in the Case Management and Scheduling Order?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Five

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday, part two was last Thursday, part three was Monday and part four was Wednesday, here is the fifth and final part.

Conclusions

Finally, I asked several of our stalwarts to address the questions I posed back in the Introduction to this article.

With regards to the question “Do symmetrical cases (both parties producing comparable discovery) differ from asymmetrical cases (one side has vast majority of discovery) that much in terms of strategy?”, Craig said:

“Plaintiffs mistakenly assume they don’t have anything to preserve, process and search.  They often have much more than counsel appreciate yet lack wherewithal to deal with it.  Plaintiffs’ lawyers who fail to bring the same diligence and skill they demand from the defense to their own client’s data are easy targets for costly do-overs and serious sanctions.  Defense counsel often harbor the same mistaken assumptions about asymmetry and fail to exploit this pressure point.  That luck won’t last, so plaintiffs’ lawyers better get on the stick when it comes to defensible legal holds, collection, processing and review.”

Craig had also addressed the question “Are plaintiffs more interested in expanding the scope of production (to get more potential evidence) or avoiding the old “document dump” because they don’t have the resources?  Or does it depend on the type of plaintiff?” with his comments on shortsightedness by saying:

“… plaintiffs’ lawyers tend to rashly agree to almost anything to get something.  They accede to bad protocols, shoddy searches and dumbed-down forms of production by being in too big a hurry to get their hands-on production and start taking depositions.” 

With regards to the question “Are plaintiffs more motivated to request native files than defendants because they are more invested in using the metadata?”, all our experts agree that plaintiffs want native files more than defendants because they want the original metadata while defendants are far more likely to already have invested substantial sums in database technology into which they have loaded their data and can use that to screen their productions.

Lastly, with regards to question “Does the EDRM model seem more like a defense model than a plaintiff model, given that it is more focused on producing then presenting?  Should there be a model for requesting parties?”, our experts felt it leaned towards a defense model not because it was more focused on producing then presenting, but because the people who first originated it and later promoted it were defense oriented so that was their natural inclination.

A larger problem for plaintiffs’ attorneys beyond the EDRM focus is changing their paradigm from documents to data. As Craig Ball noted:

“Plaintiffs’ lawyers are hamstrung by paper presumptions unsuited to a digital universe. Lacking insight into modern information systems, they don’t know how to fight back like coders instead of cavemen.  So, they flail and whine that the production ‘just feels like it should be more’ without being able to articulate why and how or produce evidence to support their motions – crucially lacking the ability to educate the bench and secure relief.  Plaintiffs get run over roughshod trying to argue what they need to prove.”

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will resume with new posts on Tuesday, after the Memorial Day weekend.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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