eDiscoveryDaily

As we noted Monday, Tuesday and yesterday, eDiscovery Daily published 65 posts related to eDiscovery case decisions and activities over the past year, covering 56 unique cases!  Yesterday, we looked back at cases related to sanctions and spoliation.  Today, let’s take a look back at cases related to the number one category for 2018 (drum roll, please!), disputes regarding proportionality vs. relevancy vs. privacy!

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, it’s also worth noting that Tom O’Connor and I will be discussing some of these cases – and what the legal profession can learn from those rulings – on our webcast on Wednesday, January 23^rd – Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

PROPORTIONALITY vs. RELEVANCY vs. PRIVACY

And we all thought that Rule 37(e) had the biggest impact from the 2015 Federal Rules changes when maybe it was actually Rule 26(b)(1)!  Regardless, we’re seeing more disputes regarding proportionality vs. relevancy vs. privacy than ever.  There are a lot of disputes related to proportionality vs. privacy, with some requestors asking for a lot (like permission to email all defendant employees to ask for relevant information) and some responders making strong claims regarding the costs of complying with discovery requests (like a $250,000 estimate to produce metadata related to medical records).  And, we’re also seeing parties identifying privacy as a reason not to comply with discovery requests (including at least one case where even the courts couldn’t agree on the outcome).  Here are our fifteen cases related to proportionality vs. relevancy vs. privacy this past year:

Court Denies Plaintiffs’ Request to Email All Defendant Employees as “Simply Unreasonable”: In Firefighters’ Ret. Sys., et al. v. Citco Grp. Ltd., et al., Louisiana Magistrate Judge Erin Wilder-Doomes denied the plaintiffs’ renewed motion to compel after the parties previously agreed upon search terms and document custodians, stating that the plaintiffs’ request to “email everyone in every Citco entity to ask whether anyone employed by any Citco entity has knowledge relevant to this litigation, and thereafter require the Citco Defendants to conduct additional electronic and hard copy searches for documents” was “simply unreasonable” and would be “unduly burdensome”.

Court Rules on Scope of Plaintiff Discovery Requests: In Performance Pulsation Control, Inc. v. Sigma Drilling Techs., LLC, et al., Texas District Judge Amos L. Mazzant granted the plaintiff’s motion to compel in part, ordering the defendants to produce documents related to four specific categories, but within certain parameters.

NY Appellate Court Reverses Ruling on Discovery of “Private” Facebook Posts: In Forman v. Henkin, the Court of Appeals of New York reinstated a trial judge’s ruling requiring the plaintiff who was disabled in a horse riding accident to turn over “private” photos to the defendant taken before and after her injuries.

Court Compels Discovery in Response to Party That Was Using Outdated Rule 26 Standard: In Cen Com, Inc. v. Numerex Corp., Washington Chief District Judge Ricardo S. Martinez ruled that the Plaintiff’s refusal to comply with the Defendant’s request for discovery using specific search terms was not justified, and that the Plaintiff must “fully comply with the subpoenas that Defendants served upon them and shall produce all responsive documents in a format that is accessible/readable by Defendants.”

Judge’s Ruling on Scope Under Rule 26 Brings a Mixed Bag of Motions Granted and Denied: In TMJ Grp., LLC v. IMCMV Holdings, Louisiana Magistrate Judge Janis van Meerveld ruled on Motions to Compel by both parties, both of which were granted in part and denied in part.

Plaintiff is Able to Get Some Subpoenas for Personal Data Quashed, But Not All: In Delgado v. Tarabochia, et al., Washington District Judge Robert S. Lasnik granted in part and denied in part the plaintiff’s motion to quash subpoenas for personal phone records and bank records, finding that phone records before the plaintiff’s hand injury on the defendant’s fishing boat were “of vital importance to defendants’ theory of the case”, but that the need for pre-incident bank records was not proportional to the needs of the case and that, with regard to subpoenas of post-incident data, defendants were “fishing”.

Court Rejects Search Terms by Both Sides as Overly Inclusive: In Am. Municipal Power, Inc. v. Voith Hydro, Inc., Ohio Magistrate Judge Elizabeth A. Preston Deavers ruling on the parties’ arguments from a May discovery conference, concluded that search terms proposed by both parties in the case were overly inclusive.

Court Puts an End to an Inquiry to “Rival the Punic Wars”: In Motorola Sols., Inc. v. Hytera Commc’ns Corp., Illinois Magistrate Judge Jeffrey Cole, ruling on what started as a stolen intellectual property (IP) case, admitted making a mistake and put a halt to the extensive discovery of 700,000 documents over 8 months, saying, “While the inquiry should have been uncomplicated, it has become a long, drawn out, pitched battle—one, in a rhetorical sense, to rival the Punic Wars—albeit without the elephants and the Alps and the sheer drama.”

Court Vacates Order Requiring Defendant to Review and Produce as Much as Three Million Emails: In Nece v. Quicken Loans, Inc., Florida District Judge Steven D. Merryday sustained the defendant’s objection to an order requiring the defendant to produce all documentation related to do-not-call requests received between September 2012 and June 2013 and also required the plaintiff to move for class certification by April 13.

Court Rules Search Terms Overly Broad Under Rule 26 in Convertible Top Patent Case: In Webastro Thermo & Comfort v. BesTop, Inc., Michigan Magistrate Judge R. Steven Whalen ruled in favor of the plaintiff’s protective order, requesting the narrowing of search terms for ESI production in this patent dispute.

Court Rules Non-Party Subpoenaed ESI Not Subject to 100-Mile Boundary: In Curtis v. Progressive N. Ins. Co., Oklahoma District Judge Robin J. Cauthron, noting that the non-party “subpoena at issue does not require the travel or attendance of any witnesses and Plaintiff is requesting the production of electronic documents”, found that “there is no violation of the 100-mile limitation for electronic documents pertaining to Rule 54” and granted the plaintiff’s Motion to Compel Compliance with Subpoena directed to the non-party.

Court Grants Defendant’s Motion to Compel Various Records from Plaintiff in “Slip and Fall” Case: In Hinostroza v. Denny’s Inc., Nevada Magistrate Judge Nancy J. Koppe granted the defendant’s motion to compel discovery various sources of ESI related to the plaintiff’s claim of injuries resulting from a “slip and fall” accident at one of the defendant’s restaurants.

Court Compels Non-Party Insurance Agents to Produce Text Messages in TCPA Case: In Gould v. Farmers Insurance Exchange, Missouri District Judge Rodney W. Sippel granted the plaintiff’s motion to compel two non-party Farmers Insurance agents to comply with subpoenas and produce documents pertaining to text messages that they allegedly sent to potential customers, rejecting the agents’ argument that compliance with the subpoenas would violate their Fifth Amendment right against compelled, self-incriminating testimony.

Court Grants Motion to Quash Subpoena From Defunct Non-Party Entity: In Swift Beef Co. v. Alex Lee, Inc., Kansas Magistrate Judge Kenneth G. Gale, finding that “the information requested by the subpoena has limited relevance and is not proportional to the needs of the case” and that the non-party entity (Vantage Foods) had established that its production would be unduly burdensome, granted Vantage’s Motion to Quash Subpoenas and denied the plaintiff’s Motion to Compel Compliance with Subpoena as moot.

Court Denies Defendant’s Request for Protective Order Against Producing Metadata for Medical Records: In Miller v. Sauberman, New York Supreme Court Justice Joan A. Madden, despite the defendant’s estimated cost of $250,000 to produce metadata related to the plaintiff’s medical records, denied the defendant’s motion for a protective order and granted the plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.

That’s it for this year’s review, but we’ve already started assembling cases for next year with this decision we covered last week.  So, what will be the notable cases of 2019?  Catch them as we cover them here all year!

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

• 2017: Part 1, Part 2, Part 3, Part 4
• 2016: Part 1, Part 2, Part 3, Part 4
• 2015: Part 1, Part 2, Part 3, Part 4
• 2014: Part 1, Part 2, Part 3, Part 4
• 2013: Part 1, Part 2, Part 3, Part 4
• 2012: Part 1, Part 2, Part 3, Part 4
• 2011: Part 1, Part 2, Part 3, Part 4

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.

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.

As we noted Monday and yesterday, eDiscovery Daily published 65 posts related to eDiscovery case decisions and activities over the past year, covering 56 unique cases!  Yesterday, we looked back at cases related to mobile device discovery, technology assisted review, the use of sampling to settle disputes, objections to production requests, an update on an interesting dispute between an eDiscovery provider and their former sales people and the final(?) post regarding the ubiquitous Apple v. Samsung case.  Today, let’s take a look back at cases related 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, it’s also worth noting that Tom O’Connor and I will be discussing some of these cases – and what the legal profession can learn from those rulings – on our webcast on Wednesday, January 23^rd – Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

SPOLIATION / SANCTIONS

For the first time ever, sanctions and spoliation issues are not the topic with the largest number of case law decisions related to eDiscovery that we covered last year (only 13 out of 56 total cases for 23.2% of all cases covered).  Admittedly, there are some sanctions issues in a couple of cases we classified in other categories.  Nonetheless, Rule 37(e) may have made an impact on the likelihood of significant sanctions, but there are still significant sanctions applied to litigation parties and we had some interesting cases this year, capped off by a case involving Jimi Hendrix copyright infringement.  Here are our thirteen sanctions and spoliation cases this past year:

No Sanctions for Spoliation of ESI Against Plaintiff Leads to Summary Judgment Against Defendant: In IBM v. Naganayagam, New York District Judge Nelson S. Romàn, finding that no intent to deprive by the plaintiff and no prejudice against the defendant for spoliation of ESI, denied the defendant’s motion for spoliation sanctions, which facilitated granting the plaintiff’s motion for summary judgment against the defendant by Judge Romàn.

No Sanctions for Failing to Preserve Videos and Photos of Prisoner Accident: In Hernandez v. Tulare Cnty. Correction Center, et al., the California Magistrate Judge denied the plaintiff’s motion for sanctions, ruling that the defendants did not act with the intent to deprive there was no prejudice to the plaintiff from loss of videos and photos of an accident suffered by the plaintiff, a state prisoner at the defendant’s correctional facility.

No Sanctions for Failing to Preserve Cell Phone Records and Call Logs: In Dotson, et al. v. Edmonson, et. al., Louisiana District Judge Susie Morgan denied the plaintiff’s motion in limine seeking sanctions for spoliation of evidence, finding that the plaintiff had “not met his burden of establishing that the Trooper Defendants had a duty to preserve” cell phone records and call logs from the evening of October 7, 2015 from Louisiana State Police (LSP) issued cell phones that were used that night by LSP officers during an undercover operation, or that their destruction of the evidence was intentional.

Former Football Players Sanctioned for Failure to Produce: In Michael E. Davis, et al. v. Electronic Arts, Inc., California Magistrate Judge Donna M. Ryu ruled that the plaintiff’s failure to fully comply with the discovery requests by the defendant were sanctionable under FRCP Rule 37, which states, “Such sanctions may include ordering a party to pay the reasonable expenses, including attorneys’ fees, caused by its failure to comply with the order or rule.”

Former Employee Sanctioned for Lying Under Oath, Destruction of ESI: In Heggen v. Maxim Healthcare Servs., Inc., Indiana Magistrate Judge Susan Collins ruled that the plaintiff’s destruction of requested cellphone recordings, as well as lying under oath, were sanctionable under FRCP Rule 37.

Court Grants Adverse Inference Sanction Against Infringing Author: In Nunes v. Rushton, Utah District Judge Jill N. Parrish, ruling that the plaintiff was prejudiced by the deletion of one of the defendant’s Google “sock puppet” accounts, granted the plaintiff’s motion for sanctions in part, ordering an adverse instruction to the jury regarding the “bad faith” deletion of that account.  Judge Parrish denied the motion with regard to several other accounts, ruling that the plaintiff was not prejudiced by deletion of those accounts (as most of the information was still available or recoverable).

Court Sanctions Plaintiff After Jury Verdict for Failing to Disclose Third Party Communications: In Singer Oil Co., LLC v. Newfield Exploration Mid-Continent, Inc., Oklahoma District Judge Vicki Miles-LaGrange ruled that the plaintiff did violate Federal rules by not disclosing the communications its counsel had with the third parties referenced in plaintiff’s counsel’s time records, but found that the defendant’s proposed sanction was an “extremely harsh sanction not warranted by the circumstances involved” and limited the plaintiff sanction to require the plaintiff to pay the attorneys’ fees the defendant incurred in filing its motion for sanctions and its reply.

Even with Bad Communication and Unfulfilled Discovery Obligations, Sanctions Still Not Granted: In US v SuperValu, Illinois District Judge Richard Mills ruled against sanctions requested by the defendants at this time, even though the relators didn’t “live up to their discovery obligations.”

Houston, We Have an Adverse Inference Finding: In Hernandez, et al. v. City of Houston, Texas District Judge Kenneth M. Hoyt, finding that the defendant “intentionally destroyed” evidence by wiping the hard drives of several custodians no longer employed by the City, determined “that entering an adverse inference finding is appropriate” against the defendant.

In No Small Ruling, Court Takes Defendant to Task for Discovery Violations: In Small v. Univ. Med. Ctr., Nevada Magistrate Judge Peggy A. Leen, in a lengthy ruling so large it included a table of contents, accepted and adopted in part and overruled in part the Special Master’s Report and Recommendation and Final Findings of Fact and Conclusions of Law.  Judge Leen sanctioned the defendant with an adverse inference instruction to the jury instead of the default judgment sanction recommended by the special master four(!) years prior.

Court Denies Plaintiff’s Request for Sanctions for Defendant’s Failure to Preserve Surveillance Video: In Ball v. George Washington Univ., District of Columbia District Judge Dabney L. Friedrich, denied the plaintiff’s motion for sanctions for allegedly destroying two surveillance videos, stating: “Because Ball has not proven—even by a preponderance of the evidence—that GW permanently stored the Lafayette Hall surveillance footage, the Court need not conduct further inquiry under Rule 37(e).”

Judge Recommends Sanctions for Defendant Under FRCP 37(e)(1): In Franklin v. Howard Brown Health Ctr., the Illinois Magistrate Judge, stating that “the defendant has had to concede that, at the very least, it bollixed its litigation hold – and it has done so to a staggering degree and at every turn”, recommended that the plaintiff’s motion for discovery sanctions be granted to the extent that the “parties be allowed to present evidence and argument to the jury regarding the defendant’s destruction/failure to preserve electronic evidence in this case”.

Court Sanctions Defendants in Jimi Hendrix Copyright Infringement Case: In Experience Hendrix, L.L.C. et al. v. Pitsicalis et al., New York District Judge Paul A. Engelmayer granted the plaintiffs’ motion for an adverse inference instruction against selected defendants associated with Purple Haze Properties (referred to as the “PHP defendants”) and he directed the PHP defendants to pay the reasonable fees and costs incurred by plaintiffs in bringing the motion.  He denied (at least at this time) the plaintiffs’ request for terminating sanctions and a preliminary injunction against the PHP defendants.

One more day to go!  What category will we cover tomorrow that had the most cases we covered this past year?  Stay tuned!

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

• 2017: Part 1, Part 2, Part 3, Part 4
• 2016: Part 1, Part 2, Part 3, Part 4
• 2015: Part 1, Part 2, Part 3, Part 4
• 2014: Part 1, Part 2, Part 3, Part 4
• 2013: Part 1, Part 2, Part 3, Part 4
• 2012: Part 1, Part 2, Part 3, Part 4
• 2011: Part 1, Part 2, Part 3, Part 4

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.

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.