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Electronic Discovery

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

2016 eDiscovery Case Law Year in Review, Part 3

As we noted yesterday and Monday, eDiscovery Daily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to cooperation, disputes about discovery, eDiscovery cost reimbursement, form of production disputes, privilege disputes and (once again) the ubiquitous Apple v. Samsung case.  Today, let’s take a look back at cases related to social media 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!

But first, if you want to learn more about what every attorney should know about eDiscovery in 2017, click here.

SOCIAL MEDIA DISCOVERY

In addition to our usual cases where defendants want to discover social media data of the plaintiffs suing them, we have two heavyweight companies that wanted to mine for prospective jurors’ social media information (until the judge stepped in, that is).  Here are three cases related to discovery of social media data:

If Google and Oracle are Going to Mine for Jurors’ Social Media Info, They Have to Inform the Court: When the big guys sue each other, the cases last forever.  We’ve been covering developments in the Apple v. Samsung case since July 2012, and that case is still going on.  Another case that we’ve covered a long time ago (way back in November 2011) is Oracle Corp. v. Google Inc. and that case is still going on too.  In that case, with a trial approaching, the judge has told lawyers to disclose Internet and social media research about jurors to the court or agree not to conduct it.

Court Orders Plaintiff to Perform a “Download Your Info” From Facebook: In Rhone v. Schneider Nat’l Carriers, Inc., Missouri Magistrate Judge Noelle C. Collins ordered the plaintiff to disclose a complete list of her social media accounts to the defendant and also provide a “Download Your Info” report from her Facebook account from June 2, 2014 to the present within fourteen days and ordered the defendant to disclose to the plaintiff any and all posts, photos or other media from the report it intends to use in support of its defense.

Court Compels Plaintiff to Provide Social Media Account and Activity Data: In Waters v. Union Pacific Railroad Co., Kansas Magistrate Judge Kenneth G. Gale granted the defendant’s motion to compel the plaintiff to produce account information associated with his social media accounts as well as postings from the dates he missed work in conjunction with his injury claims against the defendant.  Judge Gale also granted most of the components of the plaintiff’s motion to compel against the defendant for various discovery requests.

TECHNOLOGY ASSISTED REVIEW

Quite an active year with regard to cases involving technology assisted review (TAR), with the first English case approving the use of TAR and the judge in the first ever TAR case refusing to order a party to use TAR among the cases.  Here are five cases related to TAR:

Predictive Coding is Officially Approved in First English Case: Last month, in Pyrrho Investments Ltd v MWB Property Ltd, citing the landmark DaSilva Moore case (among other authorities), Master Matthews approved the use of predictive coding, due to the “enormous” expense of manually searching through the three million electronic documents associated with the case.  This is the believed to be the first time an English court has approved the use of predictive coding.

Cooperation in Predictive Coding Exercise Fails to Avoid Disputed Production: In Dynamo Holdings v. Commissioner of Internal Revenue, Texas Tax Court Judge Ronald Buch ruled denied the respondent’s Motion to Compel Production of Documents Containing Certain Terms, finding that there is “no question that petitioners satisfied our Rules when they responded using predictive coding”.

Judge Peck Refuses to Order Defendant to Use Technology Assisted Review: In Hyles v. New York City, New York Magistrate Judge Andrew J. Peck, indicating that the key issue before the court in the discovery dispute between parties was whether (at the plaintiff’s request) the defendants can be forced to use technology assisted review, refused to force the defendant to do so, stating “The short answer is a decisive ‘NO.’”

English Court Rules that Respondents Can Use Predictive Coding in Contested Case: In Brown v BCA Trading, et. al., Mr. Registrar Jones ruled that, with “nothing, as yet, to suggest that predictive coding will not be able to identify the documents which would otherwise be identified through, for example, keyword search”, “predictive coding must be the way forward” in this dispute between parties as to whether the Respondents could use predictive coding to respond to eDisclosure requests.

Defendant Not Required to Use Predictive Coding by Court: In the case In re Viagra Products Liability Litigation, California Magistrate Judge Sallie Kim, noting that other courts had declined to force a party to use predictive coding, denied the plaintiff’s motion to force the defendant to use predictive coding instead of its preferred approach using search terms.

SPOLIATION / SANCTIONS

Of course, once again, the topic with the largest number of case law decisions related to eDiscovery are those related to sanctions and spoliation issues (24 out of 62 total cases for 38.7% of all cases covered).  Are there really more of these cases or do I just find them more interesting?  You decide.  Anyway, here are the first eight cases, including one where the sanction was reversed after the adoption of Rule 37(e):

Court Orders Sanctions Against Defendant for Spoliation of Emails and Other Documents: In Ocwen Loan Servicing, LLC v. Ohio Public Employees Retirement System, 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.

Court Gives Plaintiff 21.5 Million Reasons for Not Spoliating Emails: In Hausman v. Holland America Line-U.S.A., et al., 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.

Appeals Court Upholds Terminating Sanctions For Wipe of Cell Phone: In Woodell v. Bernstein, et. al., 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.

Changes in Federal Rules Result in Reversal of Adverse Inference Sanction: In Nuvasive, Inc. v. Madsen Med. Inc., California Chief District Judge Barry Ted Moskowitz, considering new standards imposed under recently amended Federal Rule of Civil Procedure 37(e), granted the plaintiff’s motion for an order vacating the Court’s previous order granting (in part) the defendants’ Motion for Sanctions for Spoliation of Evidence.

Alteration of Domain in Produced Emails Leads to Sanctions for Plaintiffs: In CAT3, LLC v. Black Lineage, Inc., New York Magistrate Judge James C. Francis IV, ruling that emails produced by the plaintiffs were “intentionally altered”, ordered that the plaintiffs would be precluded from relying on their version of those emails to demonstrate their case and that the plaintiffs would bear the “costs, including reasonable attorney’s fees, incurred by the defendants in establishing the plaintiffs’ misconduct and in securing relief.”

Our Nation’s Largest City is Not Immune to eDiscovery Sanctions: In Stinson v. City of New York, New York District Judge Robert W. Sweet granted in part and denied in part the plaintiffs’ motion seeking sanctions for spoliation of evidence against the defendants for failure to issue a litigation hold, opting for a permissive inference rather than a mandatory adverse inference sanction against the defendants.

Court Rules Plaintiff’s Duty to Preserve Did Not Extend to Employee’s Internet History: In Marten Transport, Ltd. V. Plattform Advertising, Inc., Kansas Magistrate Judge Teresa J. James denied the defendant’s Motion for Spoliation Sanctions, ruling that, although the plaintiff had a duty to preserve relevant ESI as of Fall 2013, that duty to preserve did not extend to the internet history of one of its employees until June 2015, and by then the internet history was lost.

Defendants Claim of Lightning Strike and Power Surge Doesn’t Save Them from Sanctions: In InternMatch, Inc. v. Nxtbigthing, LLC, et. al., California District Judge Jon S. Tigar, finding that the defendants “consciously disregarded their obligations to preserve relevant evidence” when they discarded various electronic devices after experiencing an alleged power surge without checking to see if they could recover any files from them, granting an adverse inference instruction sanction and plaintiff’s attorneys’ fees.

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

Want to take a look at cases we covered the previous five 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.

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

2016 eDiscovery Case Law Year in Review, Part 2

As we noted yesterday, eDiscovery Daily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to admissibility and proportionality.  Today, let’s take a look back at cases related to cooperation, disputes about discovery, eDiscovery cost reimbursement, form of production disputes, privilege disputes and (once again) the ubiquitous Apple v. Samsung case.

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!

But first, if you want to learn more about what every attorney should know about eDiscovery in 2017, click here.

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:

Withheld Evidence Leads to New Trial, Resignation of Senior City Attorney: In Colyer v. City of Chicago, 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.

Dispute Over Adequacy of Defendant’s Production Leads to Court Ordered Meet and Confer: In Gardner et. al. v. Continental Casualty Company, Connecticut Magistrate Judge Joan Glazer Margolis, granting the plaintiff’s motion to compel in part, ordered the parties to meet and confer regarding “’sampling and iterative confinement’ or ‘quick peek protocol’ of the 38,000 documents ‘hit’ by the agreed upon search terms and notify the court in writing “about their progress, or lack thereof, on or before February 12, 2016.”

Plaintiff Must Cooperate on Search Terms, Says Court: In Pyle v. Selective Insurance Company of America, Pennsylvania Senior District Judge Terrence F. McVerry granted the defendant’s Motion to Compel Plaintiff to Provide ESI Search Terms “insofar as it seeks to compel Plaintiff to confer and come to an agreement on the search terms Defendant will use to cull through the additional email archives that Defendant has identified as having been retrieved.”

Court Orders Defendant to Produce Additional ESI Responsive to 78 “Unopposed” Search Terms: In Venturdyne, Ltd. d/b/a Scientific Dust Collectors v. Carbonyx, Inc., d/b/a Carbonyx Carbon Technologies, et. al., Indiana District Judge John E. Martin ordered the defendant to produce additional ESI to the plaintiff to be retrieved via 78 “unopposed” search terms that neither party objected to during negotiation over the plaintiff’s original list of 126 search terms.

DISPUTES ABOUT DISCOVERY

Here’s one case from this past year that was a general dispute about discovery:

Plaintiff’s Failure to Demonstrate Allegations Leads to Summary Judgment for Defendant: In Malibu Media, LLC v. Doe, in a case of dueling summary judgment motions, Illinois Magistrate Judge Geraldine Soat Brown denied the plaintiff’s motion for summary judgment, but granted the defendant’s summary motion in its entirety, concluding that the plaintiff had not presented sufficient evidence to prove its allegations of illegally downloading movies.

EDISCOVERY COST SHARING AND REIMBURSEMENT

This year, the two cases we covered related to eDiscovery cost reimbursement were split – sort of.  In the case where the request for eDiscovery cost reimbursement was upheld, the decision was made after the defendants conceded much of the storage and hosting costs they had claimed, leaving less costs to uphold.

Court Denies Request for Cost Reimbursement for Hosted eDiscovery Database: In Associated Electric & Gas Insurance Services, et. al. v. BendTec, Inc., Minnesota District Judge Michael J. Davis found that the decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp. to deny certain eDiscovery costs to be persuasive and ruled that “the costs of creating and maintaining an electronic platform for e-discovery are not recoverable under § 1920(4)”, denying the prevailing defendant’s request for reimbursement of over $123,000 in costs to maintain their ESI database.

Appeals Court Upholds Defendant’s Request for eDiscovery Cost Reimbursement: In Deere & Co. v. Duroc, LLC et. al., after the defendants conceded much of the storage and hosting costs they had claimed, the Federal Circuit Court of Appeals affirmed the district court ruling to uphold cost taxation requested by the defendants, including eDiscovery costs.

PRODUCTION FORMAT DISPUTES

We had three cases this year involving production format disputes, including one that led to sanctions for the defendant for failing to produce native format data (among other violations):

Court Denies Plaintiff’s Request for Native ESI Format, Approves Request for Index: In Stormo v. City of Sioux Falls, et. al., South Dakota District Judge Karen E. Schreier, ruling on several motions, denied the plaintiff’s motion to compel with regard to requiring the defendants to provide electronically stored information in its native format and metadata for these documents, but granted it with regard to providing an index explaining information about the documents.

Court Orders Defendant to Re-Produce Selected Documents in Native Format: In Spring v. Board of Trustees of Cape Fear Community College et. al., North Carolina Magistrate Judge James E. Gates, in ruling on several discovery disputes between the parties, granted the plaintiff’s motion to compel in part, ordering the plaintiff to identify documents to be re-produced in native format and for the defendant to re-produce those documents or move for appropriate relief after conferring with plaintiff if it deemed the number of documents identified to be unjustifiably large.

Defendant Sanctioned for Failing to Preserve Text Messages and Failing to Produce Native Format Data: In First Financial Security, Inc. v. Freedom Equity Group, LLC, California Magistrate Judge Howard R. Lloyd issued permissive adverse inference instruction sanctions against the defendant for deleting relevant text messages “with the intent to deprive” the plaintiff of the use of those text messages and for failing to produce native-format data that it was repeatedly ordered to produce.  Judge Lloyd declined to sanction the defendant for spoliation of phone records or employment applications.

PRIVILEGE DISPUTES

As usual, there were cases where there were disputes regarding privilege designations and privilege logs.  Here are three cases:

Plaintiff Granted Documents Withheld Due to Privilege, But Denied Expanded Search of Emails: In Moore v. Lowe’s Home Ctrs., Washington District Judge Robert J. Bryan ruled in favor of the plaintiff that documents and communications dated before the defendant anticipated litigation were not privileged work product and should be produced, but he ruled against the plaintiff in her request have the defendant perform additional searches on email to identify additional relevant documents.

Court Denies Defendant’s Motion for Production of Documents for In Camera Review: In Portland Pipe Line Corp. et. al. v. City of South Portland et. al., Maine Magistrate Judge John H. Rich, III denied the defendants’ motion to compel the production of documents withheld or redacted on claims of attorney-client privilege by the plaintiff, finding that the plaintiffs “undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor” and then undertaking a “painstaking manual review to verify the privileged status of every ESI document marked as privileged”.

Finding Categorical Privilege Log to Be Inadequate, Court Orders Plaintiff to Provide a Metadata Log: In Companion Property and Casualty Insurance Company v. U.S. Bank N.A., South Carolina District Judge J. Michelle Childs determined that the plaintiff’s categorical Privilege Log was inadequate and ordered the plaintiff to provide to the defendant a metadata log for all documents withheld or redacted, affidavit(s) from the person(s) with knowledge regarding the privileged third party and common interest parties and a list of anticipated litigation(s) for the documents withheld on the basis of work product protection.

APPLE V. SAMSUNG

The case that never dies.  Just when Apple finally thought it was going to get a great big check, the Supreme Court told the federal appeals court to try again when determining an award for patent infringement:

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

Tomorrow, we will cover cases related to social media discovery, 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 five 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.

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

2016 eDiscovery Case Law Year in Review, Part 1

It’s that time again!  Time for our annual review of eDiscovery case law!  Once again, we had plenty of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI) and even a few landmark cases regarding technology assisted review.  So, as we have done for the last five years, let’s take a look back at 2016!

Last year, eDiscoveryDaily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  We’ve had over 500 lifetime case law posts, covering over 380 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

This year, there were more disputes than ever about data being produced and not being produced and whether the costs to do so are overly burdensome.  Here are sixteen cases related to admissibility of ESI and the proportionality for preserving and producing that ESI:

Motion to Compel Denied for Employees’ Personal Emails, Granted for Third Party Hosted Data: In Matthew Enterprise, Inc. v. Chrysler Group, LLC, 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.

Citing Proportionality Concerns, Court Grants Plaintiff’s Motion for Protective Order: In Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., Indiana Magistrate Judge Debra McVicker Lynch, citing proportionality concerns, granted the plaintiff’s motion for a protective order and ordered that the defendant was prohibited from obtaining the discovery sought by the defendant’s subpoenas from a major shareholder of the plaintiff.

Merely Stating That ESI Request Is Not Relevant Or Proportional Is Not Sufficient, Court Rules: In Digital Ally, Inc. v. Utility Associates, Inc., Kansas Magistrate Judge Gwynne E. Birzer granted the plaintiff’s motion to compel discovery, overruling the defendant’s objections that the request was neither relevant nor proportional to the issues in this case, because the defendant “has not expounded on its objections to relevance or proportionality under Fed. R. Civ. P. 26(b)(1)”.

Plaintiffs Ordered to Produce a Copy of Access Database for Forensic Analysis: In Thorne Research, Inc. et. al. v. Atlantic Pro-Nutrients, Inc., Utah Magistrate Judge Paul M. Warner determined that, because the parties had competing affidavits regarding whether a Microsoft Access database created by the plaintiffs’ co-inventor stores metadata and that metadata (if present) was clearly relevant, the defendant should be allowed the opportunity to conduct a forensic analysis as to whether or not the metadata exists in the native format of the Access database.

Court Limits Scope of Search Terms Requested by Plaintiff: In AVM Technologies, LLC v. Intel Corp., Delaware Magistrate Judge Mary Pat Thynge granted in part the plaintiff’s request for the defendant to perform a database search of four terms and their synonyms, but limited the scope of that search to one specific defendant database, not the variety of sources requested by the plaintiff to be searched.

Defendant Ordered to Issue Litigation Hold, Respond to Discovery Requests: In Bruner v. American Honda Motor Co., Alabama Magistrate Judge Katherine P. Nelson granted the plaintiffs’ motion to compel response to discovery requests for email, to perform additional searches, and to implement a litigation hold on the email accounts for relevant individuals to the case.

Court Orders Non Party to Preserve Some, But Not All, Information Requested by Plaintiff: In Swetlic Chiropractic & Rehabilitation Center, Inc. v. Foot Levelers, Inc., et. al., Ohio Magistrate Judge Elizabeth A. Preston Deavers ruled that the plaintiff had satisfied its burden to demonstrate a real danger that relevant evidence in a non-party’s possession would be destroyed absent a court order and ordered WestFax, the non-party, “to preserve any transmission report or other documents and ESI that identify fax numbers that received Defendants’ advertising faxes.”  However, noting that the requested scope of the preservation order “appears overly broad”, she permitted WestFax to file objections to the Order within 14 days if unable to extrajudicially resolve any such objection with the plaintiff.

Court Determines Granting Defendant’s Motion to Request Overseas Documents is ‘Futile’: In Al-Ameri et. al. v. Johns Hopkins Hospital, Maryland Magistrate Judge Stephanie A. Gallagher denied the defendant’s motion to compel on the basis that compelling the discovery sought would be futile.

Court Settles Dispute Between Parties on Number of Custodians to Search and Produce: In Family Wireless #1, LLC et. al. v. Automotive Technologies, Inc., Connecticut Magistrate Judge Sarah A. L. Merriam partially granted the plaintiff’s motion to compel the defendant to search and produce ESI from additional custodians, finding that “three of the six proposed custodians’ files are likely to include information relevant to this matter, and defendant has not met its burden of showing that inclusion of these three individuals would be unduly burdensome”.

Court Rejects Plaintiff’s Request for Fee Reimbursement in Responding to Motion: In Gade v. State Farm Mutual Automobile Insurance Co., Vermont Chief District Judge Christina Reiss denied the plaintiff’s motion for an order requiring the defendant to pay expenses and fees that she incurred in opposing the defendant’s motion to compel production of an Excel spreadsheet from the plaintiff’s expert.

Court Grants Discovery on Individual Defendants’ Personal Computers and Email: In Sunderland v. Suffolk County et. al., New York Magistrate Judge A. Kathleen Tomlinson, determining that the plaintiff’s request for individual defendants to search for and produce certain documents from their personal computers and email accounts was not “unduly intrusive or burdensome” because the request was limited in time frame and the parties had agreed to search terms, granted the plaintiff’s motion to compel.

Court Rules Government’s Use of Stingray to Locate Suspect Was Unwarranted: In United States v. Lambis, New York District Judge William H. Pauley, III granted the defendant’s motion to suppress evidence obtained by law enforcement agents in connection with a search of his apartment because the apartment was located via the use of a “Stingray” cell-site simulator to identify the location of the defendant’s phone without a warrant.

Court Rejects Discovery for Additional Time Period, But Grants Additional Discovery on Termination Plan: In Blodgett et. al. v. Siemens Industry, Inc., New York Magistrate Judge A. Kathleen Tomlinson denied the plaintiff’s motion to compel the defendant to respond to the first two requests in its third request for production, but granted the motion regarding the plaintiff’s third request for ESI regarding a division-wide reduction-in-force plan.

Defendant Not Required to Produce All Documents Responsive to Search Terms: In Bancpass, Inc. v. Highway Toll Administration, LLC, Texas Magistrate Judge Andrew W. Austin (no relation) denied the plaintiff’s Motion to Enforce Discovery Agreements with regard to the plaintiff’s request for the defendant to produce all non-privileged documents responsive to search terms agreed to over email.

If Plaintiff Wants Discovery on Defendant’s Backup Tapes, Court Rules He Must Pay for Them: In Elkharwily v. Franciscan Health Sys., Washington District Judge Robert J. Bryan, finding that the defendant had met its burden to show that retrieving electronically stored information on backup tapes “would result in an undue burden and cost to Defendant”, that the plaintiff “has not met his burden to show good cause” to overcome the defendant’s undue burden and cost argument, and that “the archived emails are ‘discoverable’ under Fed. R. Civ. P. 26(b)(1)”, ordered the defendant to “facilitate access to the discovery”, but “only at Plaintiff’s expense, payable in advance”.

Court Orders Forensic Examination of Key Custodian Computers: In Davis v. Crescent Electric Company et. al., South Dakota District Judge Lawrence L. Piersol ruled that a non-disclosure agreement would sufficiently protect any and all confidential and/or privileged information of the defendant that may be uncovered during the forensic examination for key custodians and that the information being requested by the plaintiff was relevant and not overly broad.

We’re just getting started!  Tomorrow, we will cover cases related to cooperation, disputes about discovery, eDiscovery cost reimbursement, form of production disputes and the ubiquitous Apple v. Samsung case.  Stay tuned!

Want to take a look at cases we covered the previous five 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.

For Your Project to Succeed, You May Need To Be a “Debbie Downer”: eDiscovery Best Practices

Everybody knows somebody like this.  In eDiscovery terms, it might sound like this:

“The zip file will probably be corrupt and we’ll probably have to spend a lot of time trying to repair it.”  WOMP WOMP!

Or this:

“We’ll probably have a lot of turnover with the review staff and we won’t get the review done by the deadline.”  WOMP WOMP!

Let’s face it, most of us would prefer to be positive about how our eDiscovery projects will turn out (not to mention about life in general).  But, problems happen in life and, unfortunately, in most litigation projects as well.  If you’re not willing to look at the bad things that could happen and create a plan to avoid them, your project could be derailed and you could wind up spending more than is necessary, missing deadlines, or both.

That’s where a “pre-mortem” comes in.  Like a “post-mortem” enables you to correct problems encountered after the fact for the future, a “pre-mortem” enables you to anticipate problems in the first place and create a plan to prevent those problems from happening.  On many projects that I’ve worked on, we’ve conducted a “pre-mortem” to brainstorm what can go wrong (i.e., the risks) and identify a plan for mitigating each of those risks up front, then revisit regularly (typically, weekly if not more frequently) to monitor the plan for proactively addressing each risk.  This exercise can avoid a lot of headaches during the project.

Potential problems can happen throughout the discovery life cycle, so the “pre-mortem” list of potential problems will often evolve over the course of the discovery process.  Here are a couple of examples:

  • Data anomalies and exception files will slow down processing and cause us to fall behind in preparing data for review: As we noted over six years ago(!), exceptions are the rule and you will frequently encounter exception files that cannot be processed (or require considerable effort to process). Some “pre-mortem” steps to address this issue are to: 1) proactively discuss (and hopefully agree) with opposing counsel on how to handle these files in a manner that minimizes the time to attempt to correct those files and 2) establish a procedure for setting aside these files (when possible) while loading the remaining problem-free data.  Removing these potential roadblocks to getting data ready for review will help keep the discovery process moving and on schedule.
  • Review will take longer than anticipated and we will miss the production deadline: There are several measures that can be utilized to avoid this issue, including: 1) obtaining as much information about your document collection as possible up front, including number of documents, how many emails and attachments you have, how many domains those emails represent and also how many email conversations are encompassed with those emails, etc.; 2) prepare complete and clear review instructions for your attorney reviewers; 3) estimate the number of reviewers and expected throughput for review; 4) conduct a pilot review with a few reviewers to compare actual results to estimates and adjust estimates (and review instructions) accordingly; 5) exceed (at least slightly) the number of estimated reviewers to provide some leeway and 6) monitor progress daily and adjust quickly if productivity starts to fall behind.

By identifying what could go wrong up front, creating a plan to avoid those issues and monitoring the plan regularly to proactively address each risk, you can keep those problems from happening in the first place.  You may generally be an upbeat person who even “wears rose colored glasses” from time to time, but you may need to find your inner “Debbie Downer” at times to help your project succeed.

So, what do you think?  Do you put your “Debbie Downer” hat on at the beginning of your project?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image © NBC Universal

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.

Is This the Age of Technical Competence for Attorneys?: eDiscovery Trends

Last year, I led off the year with a post declaring that the age of eDiscovery automation is upon us (even with an exclamation point for emphasis!).  Was that the case?

Well, in the past year (or so), we’ve seen an even more broad acceptance of Technology Assisted Review (TAR) with the first UK case law to approve the use of TAR.  Sure, there is still some dispute about the technology and acceptance of TAR (and sometimes how it is presented), and the machine learning technology at the core of TAR may be at the “Peak of Inflated Expectations”, but it’s clear that TAR is here to stay, even as the technology and approaches around it evolve.

With regard to SaaS automation technology, we’ve seen significant investment by venture capital firms in providers like Logikcull and Everlaw and we’ve also seen “big boys” like kCura, Ipro and Thomson Reuters make significant SaaS and automation announcements.  Not to mention the emergence of other SaaS automation providers like CloudNine (you knew I’d mention us in there somewhere, right?).  With the continued evolution of TAR technology (and acceptance of that technology) and the emergence of SaaS automation alternatives, it’s clear that automation is already changing the eDiscovery landscape in a big way.  And, that doesn’t even consider the growing impact of automated data discovery prior to litigation, which is another trend that I think you’ll see have a significant impact on the market in the coming years.  So, I was right.  ;o)

However, for automation technology to really have an impact, the users of that technology need to really understand that technology and its benefits and we’ve discussed numerous times on this blog how attorneys are lacking in their understanding of technology.  This thought has been reinforced by many of the thought leaders we’ve interviewed over the years who have discussed how disappointed they are with the rate of adoption of technology by the legal industry.  In particular, Craig Ball likened it to the melting of the glaciers, then observed that, because of global warming, the glaciers might be melting faster than attorney adoption of technology.  Will lawyers ever “get” the technology?

Maybe they’re finally being forced to do so.

In 2012, the American Bar Association formally approved a change to Model Rule of Professional Conduct 1.1 to clarify that attorneys not only have a duty to be competent in practice of law, but also in technology with Comment 8 to the rule which reads: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” {emphasis added}

Then, in 2015, California adopted Formal Opinion 2015-193, which stated that “[a]ttorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery”, noting that an attorney lacking the required e-discovery competence must either learn it, consult with someone who knows it or decline the client representation.

Now, over half of the states – at least 26 in all – have adopted some requirement (or at least guidance) for technical competence by attorneys.  And, we now have our first state – Florida – which late last year actually mandated three hours of technology CLE for attorneys over a three year period, starting January 1 of this year.  Will that start a new trend of states requiring technology CLE?  We’ll see.

Regardless, it’s clear that the trend is toward more and more states expecting licensed attorneys to have some level of technology competence.  As my boss likes to say, “you can get on the bus, or get run over by the bus”.  (Yep, I know I used that statement last year when discussing adoption of automation technology – I guess I need to get some new material…)

With that in mind, it’s important to stay on top of best practices and trends regarding technology in the legal industry to meet your state’s technology competence requirement.  Your state may not currently have such a requirement, but (based on recent trends), it could be coming.  One way to do so is via reading, so if you’re a regular reader of our blog, congratulations!  You’re already doing something to boost your technology competence level by learning about eDiscovery best practices, trends and key case law decisions.

Another way is through training and CLE events, either in-person or via webinar, where you can learn about technology and possibly satisfy your CLE requirements (even if you don’t live in Florida).

To help in that endeavor, CloudNine is sponsoring a webcast on Wednesday, January 25th at noon CT (1pm ET, 10am PT) titled What Every Attorney Should Know About eDiscovery in 2017 via the BrightTALK network.  This is a one-hour session that Karen DeSouza (Director of Review Services here at CloudNine) and I have conducted for the past couple of years for hundreds of legal professionals for CLE credit in Texas.  It’s a good fundamental session that covers key terms, the eDiscovery life cycle, rules, duties, and case law which can give you tools and resources necessary to efficiently and effectively meet challenging discovery obligations that you’ll face this year.

To sign up for the webcast, click here.

I should note that we are currently working on CLE accreditation for the webcast in at least a couple of states and I will provide updates on this blog as we obtain approval for each state.  Regardless, it’s a terrific overview of eDiscovery concepts and I hope you’ll join us.

So, what do you think?  Do you think we’re finally entering an age of technical competence for attorneys?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Plaintiff’s Intentional Deletion of Emails to Competitors Leads to Order to Produce Gmail Account: eDiscovery Case Law

In Cohn et. al. v. Guaranteed Rate, Inc., No. 14-9369 (N.D. Ill., Dec. 8, 2016), Illinois District Judge John Robert Blakey granted in part and denied in part the defendant’s motion to compel discovery, for spoliation sanctions, and to extend the discovery deadline, finding that the defendant’s request for dismissal of the plaintiff’s claims and entry of default judgment or issuance of an adverse inference instruction was “not commensurate with the harm implicated here”, opting instead to require the plaintiff to provide full access to her Gmail account to the defendant.

Case Background

In this breach of contract case, the plaintiff was originally hired by the defendant in 2012, which also purchased the assets of the plaintiff’s company.  Part of the employment agreement executed by the plaintiff “expressly prohibited” her from using or disclosing confidential information or from soliciting employees or customers of the defendant.  By November 2013, the relationship between the parties had deteriorated, with the plaintiff referencing an expected lawsuit and indicating that she had retained counsel over perceived breaches of the agreement by the defendant; the plaintiff’s counsel also sent a letter to the defendant in February 2014 regarding those perceived breaches.  In turn, the defendant’s counsel sent letters to the plaintiff, also threatening litigation.  The plaintiff left the defendant’s employment in August 2014 and filed suit against the defendant in November 2014.

The defendant requested documents from the plaintiff (including emails from her Gmail and LinkedIn accounts) reflecting the plaintiff’s communications with any of the defendant’s competitors.  The plaintiff responded that, to the extent documents responsive to those requests existed, they would be produced; however, she did not produce a single message from her Gmail account with any of those competitors.

The plaintiff’s failure to produce this material forced the defendant to serve third party discovery requests on a number of its competitors, and those competitors’ document productions contained numerous messages to and from the plaintiff that she had never produced.  In conversations with one competitor, the plaintiff “ask[ed] that [they] turn to [her] gmail account” and she instructed the competitor to “Hide the info I sent was [sic] the max that my atty will allow—well actually more. I simply cannot put more in writing.”  The plaintiff also instructed her subordinate to begin communicating using their personal email addresses and to “delete our grate [Guaranteed Rate] emails to permanent tras[h].”

The defendant filed the present motion, requesting the dismissal of the plaintiff’s claims, entry of default judgment, or the issuance of adverse inference instructions at trial. Alternatively, the defendant requested native production of the plaintiff’s entire Gmail account, production of her Gmail log-in and password credentials, production of her work and personal computers to enable pursuit of a forensic inspection, and issuance of an injunction preventing the plaintiff from altering, destroying, or modifying any evidence in any way.  The plaintiff, in responding, admitted that she “deleted the subject emails with third-parties from her personal Gmail account in November of 2013, April-June of 2014, and July of 2014.”

Judge’s Ruling

Relying on Federal Rule 37(e) and considering the plaintiff’s duty to preserve, Judge Blakey stated “The Court finds that Cohn had a duty to preserve her communications with GRI’s competitors by at least November 30, 2013. By that point Cohn was making explicit references to legal action against GRI and its officers, and she had retained the attorney who represents her in this lawsuit…She was also making overtures to certain of GRI’s competitors by that time…In light of those facts and her clear obligations under the APA and BMA, Cohn and her counsel should have been able to ‘foresee’ by November of 2013 that her communications with GRI’s competitors ‘would be material (and thus relevant) to a potential legal action.’”

Judge Blakey also referenced the plaintiff’s admission of email deletions as “an obvious breach of her duty”.  As for proof of harm suffered by the defendant, Judge Blakey indicated that the “prevailing rule is that bad faith destruction of a document relevant to proof of an issue at trial gives rise to a strong inference that production of the document would have been unfavorable to the party responsible for its destruction.”  And, Judge Blakey, referencing the plaintiff’s instructions to one of the competitors to “hide the info” she sent, ruled that the information was deleted in bad faith.

With regard to remedy, however, Judge Blakey ruled that “GRI’s request for the dismissal of Cohn’s claims and entry of default judgment is not commensurate with the harm implicated here”, ordering instead “that, at a minimum, GRI must be given full access to Cohn’s Gmail account.”  He also denied the defendant’s request for an adverse inference instruction without prejudice, hoping the production of Cohn’s full Gmail account will “obviate the need for such instructions”.

So, what do you think?  Did the court go far enough in its 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.

Here’s Where You Can Get a Complete List of eDiscovery Events for 2017: eDiscovery Trends

How many eDiscovery related events are happening in 2017?  You might be surprised as to how many there are, but, the good news is that you can get a complete list of them below.

Thanks to Rob Robinson’s terrific Complex Discovery site, you can get a “non-comprehensive” list of planned eDiscovery-related industry events for 2017.  From The Sedona Conference Working Group 11 Annual Meeting for 2017, later this month on January 16 & 17 in St. Pete Beach, FL to the third annual E-Discovery Day on December 1 (like it was the last two years), there are at least 43 total events scheduled for this year.

Here’s a few highlights:

  • LegalTech 2017 (now part of LegalWeek, The Experience) will be held at the New York Hilton from January 31 thru February 2. As usual, eDiscovery Daily will be there and we are planning to conduct our seventh annual thought leader interview series at LTNY again this year!
  • ABA Techshow 2017 will be held at the Chicago Hilton on March 15 thru 18.
  • The Spring EDRM Workshop will be held at the Duke Law School (in Durham, NC) from May 15 to 17.
  • The Masters Conference is scheduled to be held in five venues this year: San Francisco on April 25, Chicago on May 23, Denver on June 20, New York City on July 18 and Washington DC on October 23.
  • ILTACON 2017 is scheduled to be held in Las Vegas from August 13 thru 17. Vegas baby!

As you can see, there’s a lot to look forward to this year.  Make sure you get credit for all of those frequent flyer miles!

So, what do you think?  Which events are you planning to attend this year?  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.