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eDiscoveryDaily

Without Meet and Confer Approval of its “Triangulating” Approach to Discovery, Defendant Ordered to Supplement Production – eDiscovery Case Law
 

In Banas v. Volcano Corp., No. 12-cv-01535-WHO (N.D. Cal. Oct. 4, 2013), California District Judge William H. Orrick determined that a defendant’s approach to discovery in which identifying the relevant documents by "triangulating" the defendant's employees wasn’t discussed with the plaintiff beforehand in a meet and confer.  Despite the fact that the court did “not find that defendant's production technique was unreasonable”, the defendant was ordered to supplement its responses since the approach wasn’t discussed and it left out multiple deponents.

In what was described as a “tentative” ruling, the facts were laid out as such:

  • In order to address the massive discovery required in this case, the defendant decided to identify the relevant documents by "triangulating" the defendant's employees. Rather than search every employee's emails, the defendant selected a subset of employees who would likely have received documents from, or sent them to, other employees who might have had involvement in this matter, so that the result would "most likely" capture all the relevant documents. In discovery, the defendant produced more than 225,000 documents. There was no agreement or even discussion between the parties about defendant's triangulation approach before the documents were produced.
  • Because of the volume of discovery in this case, documents were produced on a rolling basis. The last group of documents was produced shortly before the close of fact discovery.
  • Plaintiffs took the depositions of some 18 current or former employees of defendant. At least some of those witnesses were not within the subset of employees whose emails were searched directly by defendant.
  • The plaintiff had a hard drive that contained various documents he received while employed by the defendant. The plaintiffs compared the documents on his hard drive with the documents produced by the defendant regarding one employee they deposed and found that the defendant had produced a small fraction of the documents held by the plaintiff involving that deponent (the parties disputed his importance to the litigation).

Because of the discrepancy between the documents produced by the defendant and those contained in the plaintiff's hard drive, the plaintiff requested that the defendant search the electronic files of the witnesses whom plaintiffs deposed to ensure that the production is complete.  Though Judge Orrick did “not find that defendant's production technique was unreasonable”, he found that the plaintiff’s request was reasonable and “[u]nless there was an agreement concerning the ‘triangulation’ approach”, ordered the defendant to “perform this supplementary search and to produce any non-duplicative items”.

So, what do you think?  Could this dispute have been avoided by a meet and confer?   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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Categories Are… – eDiscovery Trends

Alex Trebek has been uttering the phrase “the categories are” for years on the popular game show Jeopardy®. But, do you know how to take advantage of the “Categories” feature on this blog?

As a daily blog that has been around for over 3 years, eDiscoveryDaily has published 820 posts to date (we should hit our 1,000 post milestone sometime next summer!). We’ve covered eDiscovery trends, key case law decisions and best practices, among other things. We have yet to remove any posts that we’ve published from our site – as a result, we have developed quite a knowledge base resource about eDiscovery topics. Even though I’ve written most of the posts on this blog, I find myself using it from time to time, because, honestly, my brain can only retain so much… 🙂

One of the useful features that our site provides is the Library section. You should see it on the left sidebar underneath the Subscription section. There are two sub-sections that can be useful, Categories and Monthly Archives. As the name implies, Monthly Archives provides an entry for each month’s set of posts – all the way back to the launch of the blog in September 2010. It’s a great way to catch up on topics if you’ve missed them.

As for the Categories sub-section, you may have noticed at the bottom of each post under the Disclaimer, there is a “Filed under” section to show the categories that the post is filed under. Most posts relate to at least a couple of categories (for example, this one relates to Electronic Discovery and Industry Trends; not surprisingly, almost every post relates to electronic discovery because, after all, this is an eDiscovery blog).

The Categories drop down in the Library section enables you to see the classification categories that we use and select a category of interest. So, if you’re interested in viewing the posts related to Case Law (260 of them to date, including yesterday’s post), simply select ‘Case Law’ from the drop down and the site will display a listing of post summaries, starting with the most recent post.

Do you have an interest in activities within the Electronic Discovery Reference Model (EDRM) or want to know more about Information Governance? Want to know more about Federal eDiscovery Rules or State eDiscovery Rules? Would you like to review cases where Sanctions have been applied, or at least considered? One simple click is all it takes to get there.

Feel free to not only read each daily post, but also to use this blog as a knowledge base resource. If it’s a significant eDiscovery trend, key case law decision or best practice over the past 3+ years, we probably have it here.

So, what do you think? Are there additional categories that you’d like to see us track? Please share any comments you might have or if you’d like to know more about a particular topic.

Image © 2013 – Jeopardy Productions, Inc.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily 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 Declines to Impose Default Judgment, But Orders Searchable Production and Extends Deadlines – eDiscovery Case Law
 

In Kwan Software Engineering, Inc. v. the defendant Technologies, LLC, No. C 12-03762 SI (N.D. Cal. Oct. 1, 2013), California District Judge Susan Illston denied the plaintiff’s motion for terminating sanctions against the defendant for late, non-searchable productions, but did order the defendant to produce documents in a searchable format with metadata and extended the pretrial schedule so that the plaintiff would not be prejudiced by the late productions.

After being court-ordered to produce documents by August 20, 2013, the defendant produced the majority of the documents (over 200,000 pages) after the deadline on September 13 and September 25.  As a result, the plaintiff filed a motion for terminating sanctions against the defendant pursuant to Federal Rule of Civil Procedure 37(b), based on the defendant's untimely production of documents. In the alternative, the plaintiff sought the following sanctions:

(1)   that within three business days, the defendant must produce all documents responsive to the plaintiff's requests in searchable electronic format with metadata included;

(2)   that the plaintiff's non-expert and expert discovery cut-offs be unilaterally extended to December 15, 2013;

(3)   that the defendant be precluded from using any documents produced after August 20, 2013, for any purpose; and

(4)   that the defendant be required to pay monetary sanctions in the amount of $2,880 to reimburse the plaintiff for the costs of its motion.

The plaintiff also requested that the Court leave the trial date unaltered.

Noting that a terminating sanction should only be imposed in “extreme circumstances”, Judge Illston described the factors to be considered, as follows:

(1)   the public's interest in expeditious resolution of litigation;

(2)   the court's need to manage its docket;

(3)   the risk of prejudice to the other party;

(4)   the public policy favoring the disposition of cases on their merits; and

(5)   the availability of less drastic sanctions.

After consideration of the above factors, Judge Illston declined to impose a terminating sanction, noting that a “sanction less drastic than default is available to remedy any potential prejudice” to the plaintiff.  She did order the defendant to produce the documents in a searchable format with metadata and amend the pretrial schedule for both parties for non-expert and expert discovery cut-offs and deadlines to designate expert witnesses.  In its response, the defendant stated that “it can produce the documents in a searchable format with metadata in a week”.

So, what do you think?  Should the request for terminating sanctions have been granted?   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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Moneycase: Should Your Law Practice Be Run Like a Baseball Team? — eDiscovery Trends

Remember the movie Moneyball (adapted from the book of the same name) about Oakland A’s general manager Billy Beane’s use of computer-generated analytics to pick his players to successfully assemble a baseball team that advanced to the baseball playoffs while spending a fraction of the budget as other teams?  Can law firms learn from that example?

According to Angela Hunt in a recent article in Law Technology News (Why Attorneys Love-Hate Data Analytics), maybe they can.  As she notes in her article, James Michalowicz, managing director of Huron Legal advises firms to use big data and performance metrics to minimize legal spending.

Like the old-time baseball experts in Moneyball that scoffed at the use of computer-analytics to pick baseball players, some attorneys question the benefits in the legal arena.  “As much as I think the use of analytics is now penetrating the sports world, I think it’s slower in the legal world,” Michalowicz told Law Technology News. Since a law firm’s value depends heavily on its legal knowledge base, installing a program that does all the heavy thinking can make attorneys feel like their hard-earned legal education is being undermined, explains Michalowicz. “There’s this emotional piece to it. Lawyers don’t want to rely on data. It’s a challenge to their pride.”

However, for large firms and corporations that deal with litigation regularly, Michalowicz recommends using strategic case analytics, a predictive technology that helps attorneys pick their battles.  As the article notes, “[b]y evaluating venue data and case histories within a jurisdiction, law firms and corporate legal departments can give unbiased advice on whether to litigate or settle.”

The past three years, at LegalTech New York (LTNY), we have conducted and published a Thought Leader Series of interviews with various thought leaders in the litigation and eDiscovery industry (here’s the link to this year’s set of interviews).  One of the interviews was with Don Philbin, President and Founder of Picture It Settled®, which is a predictive analytics tool for the settlement negotiation process.  To support this process, they collected data for about ten thousand cases – not just the outcomes, but also the incremental moves that people make in negotiation.  If Billy Beane were an attorney, he’d love it!

Over the next few weeks, we’ll look at other analytics mechanisms to improve efficiency in the litigation and discovery process.

So, what do you think?  Do you employ any data analytics in your discovery practice?   Please share any comments you might have or if you’d like to know more about a particular topic.

Image © 2011 – Sony Pictures

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

He Sees You When You’re Sleeping — eDiscovery Trends
 

A recent post in the Law Librarians Blog illustrates not only the different ways in which personal data can be captured, but also the continued growth of devices that might contain that data.

In He Sees You When You’re Sleeping, He Knows When You’re Awake…, the authors discuss potential tracking of mouse movements, current data tracking on smart TVs and even the possibility for data to be kept and tracked on…your toothbrush:

  • An October story from Ars Technica discusses how Facebook is working on a way to log cursor movements, beyond tracking where someone clicks on a page to determine an ad’s effectiveness.  According to the Wall Street Journal, Facebook wants to pay attention to the areas a cursor lingers over, even without a click or other interaction.  And, if you’re using a mobile device, Facebook will still be noting when, for instance, “a user’s newsfeed is visible at a given moment on the screen of his or her mobile phone.”
  • Imagine if your toothbrush could keep track of your brushing habits?  According to ZDNet, Salesforce CEO Marc Benioff sees that happening.  “Everything is on the Net. And we will be connected in phenomenal new ways," said Benioff. Benioff highlighted how his toothbrush of the future will be connected. The new Philips toothbrush is Wi-Fi based and have GPS. "When I go into the dentist he won't ask if I brushed. He will say what's your login to your Philips account. There will be a whole new level of transparency with my dentist”.
  • One device that is already capturing your personal data is the smart TV, in some cases whether you want it or not.  A blogger in the U.K. has discovered that his LG smart TV sends details about his viewing habits back to LG servers.  Those habits also include the file names of items viewed from a connected USB stick.  There is a setting in the TV that purports to turn this behavior off (it’s on by default).  It doesn’t work as data is forwarded to LG no matter what the setting.  LG’s response to the disclosure was less than reassuring – “The advice we have been given is that unfortunately as you accepted the Terms and Conditions on your TV, your concerns would be best directed to the retailer,” the representatives wrote in a response to the blogger. “We understand you feel you should have been made aware of these T’s and C’s at the point of sale, and for obvious reasons LG are unable to pass comment on their actions.”

Nice.  Imagine a case where, in addition to hard drives and smart phones, data collectors need to perform collection on flatscreen TVs and toothbrushes?  If it sounds farfetched, remember that, several years ago, cell phones didn’t store data and texts didn’t even exist.

So, what do you think?  What is the most unusual device from which you’ve ever collected data?   Please share any comments you might have or if you’d like to know more about a particular topic.

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

November Pop Quiz Answers! – eDiscovery Trends

Yesterday, we gave you a pop quiz for the topics we’ve covered in November. If you’re reading the blog each day, these questions should be easy! Let’s see how you did. Here are the answers.

 

1.  Which of the following is NOT an approach for collection as described by the published EDRM Collection Standards document?

 

A.    Forensic Image (Physical or Logical Target)

B.    Custom Content/Targeted Image

C.    Custom Content/Non-Targeted Image

D.    Non-Forensic Copy

 

2.  Which judge just published a Discovery Order for use in his District Court?

 

A.    Shira Scheindlin

B.    Lee Rosenthal

C.    Andrew Peck

D.    Paul Grimm

 

3.  Which US Senator recently voiced concerns about the proposed changes to the Federal Rules regarding discovery?

 

A.    Barbara Boxer

B.    Christopher Coons

C.    Dick Durbin

D.    Marco Rubio

 

4.  In what recent case was the plaintiff’s motion to compel denied because the defendant didn’t have “possession, custody, or control” of the evidence?

 

A.    Kickapoo Tribe in Kansas v. Nemaha Brown Watershed Joint District No. 7

B.    Apple v. Samsung

C.    Crispin v. Christian Audigier Inc.

D.    Novick v. AXA Network

 

5.  How big does the Radicati Group project the market for eDiscovery solutions will grow by 2017?

 

A.    $3.5 billion

B.    $3.6 billion

C.    $3.7 billion

D.    $3.8 billion

 

6.  What are “container files”?

 

A.    A redweld containing paper documents

B.    A file that stores one or more images

C.    A file that stores one or more files in a compressed form

D.    None of the above

 

7.  In which case is a party (and their counsel) facing sanctions for disclosure of confidential agreements?

 

A.    Kickapoo Tribe in Kansas v. Nemaha Brown Watershed Joint District No. 7

B.    Apple v. Samsung

C.    Crispin v. Christian Audigier Inc.

D.    Novick v. AXA Network

 

8.  Which file format yields, on average, the most pages per GB?

 

A.    Text files

B.    Email files

C.    Microsoft Word files

D.    Image files

 

9.  In which case was cost-shifting ruled inappropriate where data was kept in an accessible format?

 

A.    Kickapoo Tribe in Kansas v. Nemaha Brown Watershed Joint District No. 7

B.    Apple v. Samsung

C.    Crispin v. Christian Audigier Inc.

D.    Novick v. AXA Network

 

10. Which of the following is NOT a useful LinkedIn group for eDiscovery information?

 

A.    Electronic Discovery Professionals

B.    Association of Litigation Support Professionals

C.    The Discover Network

D.    All of the above are useful groups for eDiscovery information

 

 

How did you do?  Next month, you’ll get another chance with December topics.  As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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

November Pop Quiz! – eDiscovery Trends

Did you think we forgot to quiz you about last month’s topics?  Thankfully, no!  Like we did for July, August and September/October (answers here, here and here, respectively), here is a pop quiz for the topics we covered in November.  If you’re reading the blog each day, these questions should be easy!  If not, we’ve provided a link to the post with the answer.  We’re that nice.  Test your knowledge!  Tomorrow, we’ll post the answers for those who don’t know and didn’t look them up.

 

1.  Which of the following is NOT an approach for collection as described by the published EDRM Collection Standards document?

 

A.    Forensic Image (Physical or Logical Target)

B.    Custom Content/Targeted Image

C.    Custom Content/Non-Targeted Image

D.    Non-Forensic Copy

 

2.  Which judge just published a Discovery Order for use in his District Court?

 

A.    Shira Scheindlin

B.    Lee Rosenthal

C.    Andrew Peck

D.    Paul Grimm

 

3.  Which US Senator recently voiced concerns about the proposed changes to the Federal Rules regarding discovery?

 

A.    Barbara Boxer

B.    Christopher Coons

C.    Dick Durbin

D.    Marco Rubio

 

4.  In what recent case was the plaintiff’s motion to compel denied because the defendant didn’t have “possession, custody, or control” of the evidence?

 

A.    Kickapoo Tribe in Kansas v. Nemaha Brown Watershed Joint District No. 7

B.    Apple v. Samsung

C.    Crispin v. Christian Audigier Inc.

D.    Novick v. AXA Network

 

5.  How big does the Radicati Group project the market for eDiscovery solutions will grow by 2017?

 

A.    $3.5 billion

B.    $3.6 billion

C.    $3.7 billion

D.    $3.8 billion

 

6.  What are “container files”?

 

A.    A redweld containing paper documents

B.    A file that stores one or more images

C.    A file that stores one or more files in a compressed form

D.    None of the above

 

7.  In which case is a party (and their counsel) facing sanctions for disclosure of confidential agreements?

 

A.    Kickapoo Tribe in Kansas v. Nemaha Brown Watershed Joint District No. 7

B.    Apple v. Samsung

C.    Crispin v. Christian Audigier Inc.

D.    Novick v. AXA Network

 

8.  Which file format yields, on average, the most pages per GB?

 

A.    Text files

B.    Email files

C.    Microsoft Word files

D.    Image files

 

9.  In which case was cost-shifting ruled inappropriate where data was kept in an accessible format?

 

A.    Kickapoo Tribe in Kansas v. Nemaha Brown Watershed Joint District No. 7

B.    Apple v. Samsung

C.    Crispin v. Christian Audigier Inc.

D.    Novick v. AXA Network

 

10. Which of the following is NOT a useful LinkedIn group for eDiscovery information?

 

A.    Electronic Discovery Professionals

B.    Association of Litigation Support Professionals

C.    The Discover Network

D.    All of the above are useful groups for eDiscovery information

 

 

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

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

Requesting Discovery in the Modern Age – eDiscovery Best Practices
 

Leave it to Craig Ball to break down requests for production of electronically stored information (ESI) in a simple and straightforward manner.

In his new article on Law Technology News (Modern E-Discovery Requests), he describes six “challenges” to “help litigators lose the boilerplate and write requests as sleek and modern as ESI itself”.

The article describes the challenges, and Craig provides some excellent examples to illustrate best practices.  Here are the challenges:

CHALLENGE 1: The definition of "document" must give way to an alternate term like "information."  Let’s face it, much of the information requested in discovery today doesn’t fit the traditional “document” format (e.g., videos, Facebook posts, texts, “tweets”, etc.).  As Craig notes, it’s not necessary to attempt to list them all and possibly miss one – the term “information” is sufficient.  Craig provides a simple example sentence here that conveys a concise, but effective way to request “information” in the request.

CHALLENGE 2: In practice, the catchalls "any and all" and "including, but not limited to" rarely serve to broaden the scope of a request, but they're lightning rods for objection.  Again, Craig provides examples verbiage that addresses the “any and all” coverage in the preface to obviate the need to cover it in each individual request.

CHALLENGE 3: When you define a term and either fail to use it or use an undefined variant, your request broadcasts your reliance on forms—it's easy to show you haven't customized your request to the case.  In other words, make sure that each request is customized and not boilerplate with regard to definition of terms.

CHALLENGE 4: Many requests fail to specify the forms sought for ESI production. Specifying "native format" isn't much better.  Specify forms of production sensibly and precisely. Don't assume that "native format" is clear or sufficient; instead, specify the formats sought for common file types.  Craig provides an excellent chart of the most common file types by file extension.

CHALLENGE 5: A well-crafted request should designate the medium of ESI production as well as the forms of production.  In other words, provide language that addresses the appropriate media for the size of production.  Again, Craig provides example wording that covers appropriate media for different sizes of productions.

CHALLENGE 6: Every electronic file has a complement of descriptive information called system metadata residing in the file table of the system or device storing the file. Different file types have different metadata… Develop a comprehensive production protocol tailored to the case and serve same with discovery. Short of that, specify the particular items of metadata and header fields you seek.  Once again, Craig provides an excellent example list of general fields to request, as well as those specific to email messages.

The examples that Craig provides are excellent illustrations of best practices for production requests and well worth checking out.  To view Craig’s article, click here.

So, what do you think?  How do you structure your production requests?   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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Samsung Again Owes Apple Almost $1 Billion, Sanction Deadline Nears – eDiscovery Case Law

The news continues to get worse for Samsung Electronics Co. in its colossal legal battle with Apple Inc…

A California federal jury ruled on November 21 that Samsung owes Apple $290.5 million for selling mobile devices that infringed five iPhone and iPad patents, bringing the total awarded for infringing on Apple products to almost $930 million.

The jury deliberated over the course of three days before reaching its decision and awarding the amount, which was less than the $380 million Apple sought from Samsung, but far more than Samsung’s efforts to cap damages at $53 million.

In August of last year, Apple was awarded over a billion dollar verdict, but U.S. District Judge Lucy Koh later reduced those damages to a measly $599 million and ordered a retrial on 13 of Samsung’s products, saying the earlier jury’s math on those gadgets didn’t add up.

And, that may not be the worst of it for Samsung.  Due to the disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate” – Samsung and its outside counsel Quinn Emanuel Urquhart & Sullivan LLP are facing sanctions for that disclosure.

According to a declaration from Nokia’s Chief Intellectual Property Officer, Paul Melin, on June 4, in a meeting between Samsung and Nokia licensing executives, Dr. Seungho Ahn informed Nokia that the terms of the Apple-Nokia license were known to him. Specifically, according to Mr. Melin, Dr. Ahn stated that Apple had produced the Apple-Nokia license in its litigation with Samsung, and that Samsung’s outside counsel had provided his team with the terms of the Apple-Nokia license. Mr. Melin recounts that to prove to Nokia that he knew the confidential terms of the Apple-Nokia license, Dr. Ahn recited the terms of the license, and even went so far as to tell Nokia that “all information leaks.”

Partner John Quinn of Quinn Emanuel acknowledged the inadvertent disclosure, which was apparently due to an associate at the firm failing to obscure a footnote and two paragraphs while performing a digital redaction of a 150-page report which was posted on an FTP site that was accessible by Samsung personnel.

As a result, California Magistrate Judge Paul S. Grewal ordered an “in camera” review of documents that Samsung claimed as privileged which Apple doubted that they were legitimately withheld from its lawyers.  Then, on November 8 after the review was conducted, Judge Grewal ordered Samsung and Quinn Emanuel to show cause why they should not be sanctioned, stating that “it appears…that sanctions against Samsung and its attorneys are warranted”.  However, he gave Samsung one last chance to defend its actions ordering Samsung to file a brief by December 2 (today) to explain why it should not be sanctioned, while also allowing Apple and Nokia to file a brief to propose appropriate sanctions, with a hearing on the matter set for next Monday, December 9.

So, what do you think?  Can it get any worse for Samsung?   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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Duty to Preserve Triggered When Litigation is "Imminent", Not "Reasonably Foreseeable" – eDiscovery Case Law
 

In the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, MDL No. 2385,3:12-md-02385-DRH-SCW (S.D. Ill. Sept. 25, 2013), Chief District Judge David R. Herndon ruled that at least in the Seventh Circuit, the duty to preserve is triggered not when litigation is “reasonably foreseeable” but when “a litigant knew or should have known that litigation was imminent.”

In this multidistrict pharmaceutical litigation, the plaintiffs’ steering committee (PSC) sought the production of documents from a drug company’s former employee. The company claimed it deleted the documents under its records retention policy no later than November 2011, before the first lawsuit was filed in this matter. It claimed its duty to preserve did not arise until it knew that litigation was “imminent” in February 2012, when it received the first demand letter from a plaintiff.

The PSC contended that the company’s duty to preserve arose earlier and filed a motion for sanctions. After the court held a hearing on the motion, the drug company’s counsel worked with the custodian and located 40 personal e-mails from his personal e-mail account sent after he left the company that mentioned Pradaxa, the drug in question. The PSC complained that the company’s production was deficient: it wanted the company to produce more than documents that just “referenced” Pradaxa and also complained that the production was inconsistent with the custodian’s declaration that he did not have any Pradaxa-related documents in his possession. The company then asked an outside vendor to review 200 disaster recovery tapes to determine whether it could recover the custodian’s documents.

The PSC filed a motion to compel the custodial file and asked the court for “other relief that the Court deems appropriate” if it found that the file had been destroyed. It claimed the company’s “duty to preserve arose as soon as [it] had reason to anticipate pending litigation and that imminence is not required.” Here, the PSC argued that the company’s duty was triggered because of other litigation stemming from the Pradaxa clinical trials, adverse event reports, and “internet chatter” on the websites of plaintiffs’ law firms.

Judge Herndon agreed with the company and found its duty to preserve did not arise until February 2012 when it received the demand letter and “knew or should have known that litigation was imminent.” Because there was no duty, sanctions were not appropriate. Moreover, even if the duty had arisen before the file was destroyed, the PSC had not shown the company destroyed the file in bad faith and was thus not entitled to a spoliation inference. Instead, it had followed its records retention policy.

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

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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