Close
Enter your
text here

eDiscoveryDaily

Court Orders Plaintiff to Reproduce ESI and Produce Search Term List As Agreed: eDiscovery Case Law

In Youngevity Int’l Corp., et al. v. Smith, et al., No: 16-cv-00704-BTM (JLB) (S.D. Cal. Dec. 21, 2017), California Magistrate Judge Jill L. Burkhardt, granted the defendants’ motion to compel proper productions against the plaintiffs and ordered the plaintiffs to either provide its search hit list to the plaintiffs, meet and confer on the results and screen the results for responsiveness and privilege OR produce 700,000 additional responsive documents and pay for the defendants to conduct Technology Assisted Review (TAR) on the results.  Judge Burkhardt also ordered the plaintiffs to designate “only qualifying documents” as confidential or Attorney’s Eyes Only (AEO) and to pay for the reasonable expenses, including attorney’s fees, of bringing the motion.

Case Background

In this case regarding alleged unlawful competition filed by the plaintiffs against Wakaya (the defendants company formed by former distributors of the plaintiffs company), the defendants proposed during discovery in May 2017 a three-step process by which: “(i) each side proposes a list of search terms for their own documents; (ii) each side offers any supplemental terms to be added to the other side’s proposed list; and (iii) each side may review the total number of results generated by each term in the supplemented lists (i.e., a ‘hit list’ from our third-party vendors) and request that the other side omit any terms appearing to generate a disproportionate number of results.”  Six days later, the plaintiffs stated that “[w]e are amenable to the three step process described in your May 9 e-mail” and the parties exchanged lists of proposed search terms to be run on their own ESI and their opponent’s ESI.

While the defendants provided the plaintiffs with a hit list of the total number of results generated by running each term in the expanded search term list across its ESI, the plaintiffs never produced its hit list.  The plaintiffs also made two large productions of approximately 1.9 million pages and 2.3 million pages and, without reviewing them beforehand, mass designated them all as confidential and/or AEO.  The produced ESI contained numerous non-responsive documents and the parties attempted without success to meet and confer (even with Court assistance) on reducing the number of documents classified as AEO.  The plaintiffs also notified the defendants (around the beginning of October 2017), that it had inadvertently failed to produce an additional 700,000 documents due to a technical error by its discovery vendor.

As a result of all of the issues associated with the plaintiffs’ production, the defendants sought an order under FRCP 26(g) or Rule 37 requiring the plaintiffs to remedy its improper production and pay the costs incurred by the defendants as a result of this motion and the costs associated with reviewing the plaintiffs’ prior productions.

Judge’s Ruling

While considering the defendants’ assertions that the plaintiffs “impermissibly certified its discovery responses because its productions amounted to a ‘document dump’ intended to cause unnecessary delay and needlessly increase the cost of litigation”, Judge Burkhardt determined that “Wakaya fails to establish that Youngevity violated Rule 26(g)”, “declin[ing] to find that Youngevity improperly certified its discovery responses when the record before it does not indicate the content of Youngevity’s written responses, its certification, or a declaration stating that Youngevity in fact certified its responses.”

However, Judge Burkhardt stated that “the record indicates that Youngevity did not produce documents following the protocol to which the parties agreed”, noting that “Youngevity failed to produce its hit list to Wakaya, and instead produced every document that hit upon any proposed search term” and that “the parties negotiated a stipulated protective order, which provides that only the ‘most sensitive’ information should be designated as AEO”.  She also stated that “Youngevity conflates a hit on the parties’ proposed search terms with responsiveness…The two are not synonymous…Search terms are an important tool parties may use to identify potentially responsive documents in cases involving substantial amounts of ESI. Search terms do not, however, replace a party’s requests for production.”

As a result, Judge Burkhardt gave the plaintiffs two options for correcting their discovery productions with specific deadlines:

“1) By December 26, 2017, provide its hit list to Defendant; by January 5, 2018, conclude the meet and confer process as to mutually acceptable search terms based upon the hit list results; by January 12, 2018, run the agreed upon search terms across Plaintiff’s data; by February 15, 2018, screen the resulting documents for responsiveness and privilege; and by February 16, 2018, produce responsive, non-privileged documents with only appropriate designations of “confidential” and “AEO” (said production to include that subset of the not-previously-produced 700,000 documents that are responsive and non-privileged); or

2) By December 26, 2017, provide the not-previously-produced 700,000 documents to Defendant without further review; pay the reasonable costs for Defendant to conduct a TAR of the 700,000 documents and the July 21, 2017 and August 22, 2017 productions for responsiveness; by January 24, 2018, designate only those qualifying documents as “confidential” or “AEO”; by that date, any documents not designated in compliance with this Order will be deemed de-designated.”

Judge Burkhardt also ordered the plaintiffs to pay for the reasonable expenses, including attorney’s fees for bringing the motion and for the expenses incurred by the defendants “as a result of Youngevity’s failure to abide by the Stipulated Protective Order.”

So, what do you think?  Did the plaintiffs abuse the process?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

LegalTech 2018 Starts in a Week!: eDiscovery Trends

While “Legalweek”, starts next Monday, LegalTech New York 2018, starts next Tuesday, January 30 and concludes on Thursday, February 1.  For us at eDiscovery Daily, it’s our eighth year in a row covering the show and we’ll be conducting thought leader interviews again this year!  Let’s take a look at some of the sessions and events worth particular note for eDiscovery professionals.

Tuesday Highlights: At 12:00pm, the session Don’t be a ‘Burden’: Arguments Around Proportionality is timely as we’re seeing more proportionality arguments than ever with the new rules.  And, given the imminence of the General Data Protection Regulation (“GDPR”) in about four months, I’m sure the session at 2:00pm (Incorporating the Power of Technology into GDPR Compliance Programs) will be useful to those organizations looking to comply by the deadline.  And the session The “Internet of Things” and Other Emerging Data Sources: Where Privacy, Proportionality, and Technology Intersect, will undoubtedly be interesting with several knowledgeable panelists, including Jason R. Baron (who I’m interviewing again in this year’s thought leader series and, if last year’s interview is any indication, will have a lot to say about this fascinating trend).

Wednesday Highlights: At 9:00am, the judges panel session The ESI of Today and the ESI of Tomorrow will undoubtedly give us wise words from Judges Peck, Rodriguez, Conti and Matthewman (moderated by Patrick Oot of Shook, Hardy & Bacon), regarding a variety of topics, including Rule 34(b), Rule 502(d) and various ESI sources.  Also, if you want a current sense of how technology is affecting eDiscovery education, From AI to e-Discovery: Innovation in Legal and Technology Education at 1:15pm will provide some great insights from the likes of Judge Rodriguez, Mary Mack, Bill Hamilton and David Horrigan, among others.  And, if you need even more of an IoT fix, From the Iron Rooster to Amazon Alexa: Mobile Discovery and the Internet of Things will take a look at mobile, truck, Fitbit and other data sources with Horrigan, Ari Kaplan and Kelly Twigger, among other terrific panelists.

I would be remiss if I didn’t also mention that CloudNine and ACEDS is hosting Drinks with Doug (that’s me!) and Mary (as in Mary Mack, Executive Director of ACEDS), as well as Marc Zamsky (from ComplianceDS) at Ruth’s Chris Steak House at 148 West 51st Street on Wednesday from 4:00pm to 6:00pm.  Online registration is closed, but you can join the waiting list here if you’ll be at the show and want to attend.  Come join us!

Thursday Highlights: Need to finance your litigation and concerned about the ethics of doing so?  If so, consider attending the 1:00pm session Litigation Funding: Seeing 20/20 on the Ethics and Law to get some important questions answered.  And, if you want to get updated on the new rules for self-authentication of evidence, consider joining Josh Gilliland (of the terrific Bow Tie Law blog) at Streamlining Admissibility: Leveraging the New Self-Authentication Procedures for Defensible Collections at 2:30pm.

Exhibit Hall: Of course, the largest legal technology conference of the year wouldn’t be complete without an extensive list of exhibitors.  This year, according to my count, there are over 200 exhibitors (on the increase for the second straight year), including our company, CloudNine at booth #533.  So, come see us!

As always, we will cover the show here at eDiscovery Daily, including a list of eDiscovery and IG related sessions each day.  Check here for the sessions you may want to check out at the conference!

So, what do you think?  Are you attending LegalTech next week?  Please share any comments you might have with us or let us know 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.

Size Does Matter When it Comes to eDiscovery Business Confidence this Winter: eDiscovery Trends

The Complex Discovery eDiscovery Business Confidence Survey is starting its third year and the results are in!  As was the case for the 2016 Winter, Spring, Summer and Fall surveys and the 2017 Winter, Spring, Summer and Fall surveys, the results for the Winter 2018 eDiscovery Business Confidence Survey are published on Rob Robinson’s terrific Complex Discovery site.  How confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  As I’ve done for the past few surveys, I will provide some analysis and, this year, I’ll take a look at all surveys conducted to look at trends over time.  So, this time, I will look at the results for all nine surveys.

The Winter 2018 Survey response period was initiated in late December, and continued until registration of exactly 100 responses by Tuesday (January 16).  Rob notes that this limiting of responders to 100 (or so) individuals is designed to create linearity in the number of responses for each quarterly survey.  So, in the future, if you want your voice heard, respond early!

Software/Service Providers and Law Firms are Still the Top Two: Of the types of respondents, 76% were either Software and/or Services Provider (43%) or Law Firm (33%).  As usual, Consultancy was third with 13%.  If you count law firms as providers (they’re technically both providers and consumers), this is a very provider heavy survey (which makes perfect sense as they would be most interested in eDiscovery business confidence).  Here’s a graphical representation of the trend over the nine surveys to date:

With the exception of the two larger surveys in 2016 (before the 100 vote limit was instituted), the top three types of respondents have routinely comprised around 90% of the overall respondents.  So, those groups are either more interested in eDiscovery business (likely) or more interested in responding quickly.

Once Again, Over Half of Respondents Continue to Consider Business to Be Good: Over half (58%, to be exact) of respondents rated the current general business conditions for eDiscovery in their segment to be good, with 7% rating business conditions as bad.  Last quarter, those numbers were 55% and 9% respectively, so both numbers reflect a current bullish sentiment.  Will that continue?  We’ll see.  Here is the trend over the nine surveys to date:

This survey shows the highest percentage of “business is good” respondents since the first two surveys in 2016.  The “business is bad” respondents are not the lowest we’ve seen, but still reasonably low.

eDiscovery Business Conditions and Revenue Expectations Six Months From Now Stays Strong, Profit Expectations Slip: Almost all respondents (95%) expect business conditions will be in their segment to be the same or better six months from now (about the same as last quarter’s 96%), and the percentage expecting business to be better rose a tick to 56%.  Revenue (at combined 93% for the same or better) is about the same as the last quarter.  Profit expectations (combined 83%) dropped a bit from last quarter, with those expecting lower profits at an all time high.  Here is the profits trend over the nine surveys to date:

Good news, bad news here: Almost half of the respondents expect profits to be higher here, but about one-sixth expect them to be lower.  With revenue projections comparable to last quarter, it seems as though providers are concerned about increasing expenses.

Increasing Volumes of Data as Back to Being Most Impactful to eDiscovery Business: Size matters, remember?  Increasing Volumes of Data was the top impactful factor to the business of eDiscovery over the next six months at 29%, with Budgetary Constraints next up at 25%.  The other four factors were again comparable: Increasing Types of Data (16%), Data Security (13%), Inadequate Technology (9%) and Lack of Personnel (8%).  The graph below illustrates the distribution over the nine surveys to date:

Increasing Volumes of Data and Budgetary Constraints have been in the top three for each survey and the top two most of the time.  That’s a consistent trend.

Executive Leadership is the Majority: Executive Leadership respondents rose again to 52% of respondents (from 48% last quarter) – the first time since the first two surveys that the majority of respondents are executive leaders.  Operational Management dropped to 25% of respondents, while Tactical Execution respondents rose a bit to 23%.  Here’s the breakdown over the nine surveys to date:

The distribution has varied over time, but it’s an executive heavy survey this time.  Does that reflect any added significance in the numbers?

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check them out.

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  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.

Understanding eDiscovery in Criminal Cases, Part Two: eDiscovery Best Practices

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars, including our webinar last Thursday (Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018), which was great.  If you missed it, you can check out the replay here.  Tom also wrote a terrific four part informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes.  Now, Tom has written another terrific overview for Understanding eDiscovery in Criminal Cases that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  The first part was published Monday, here’s part two.

Overview of Rules for Criminal Matters

Because more than 90 percent of documents today are generated in electronic format, ESI is becoming more and more prominent in criminal matters, especially white collar criminal cases.  But many attorneys who take on a criminal representation for the first time are surprised to find that there are a different set of rules than those that they are used to working within civil matters.

Although the rules and case law on eDiscovery in the civil arena have been developing at a rapid pace, the same has not happened in criminal law. The Federal Rules of Civil Procedure are just that, the rules for civil matters, while the procedural rules for criminal matters are set forth in the Federal Rules of Criminal Procedure (FRCrimP) as well as the states’ versions of criminal procedure codes.

Because so much of the work in criminal matters involves Fourth and Fifth Amendment constitutional arguments and state constitutional concerns, the rules tend to focus on that area.  The Fourth Amendment, of course, has a general prohibition against searches and seizures without a warrant, but law enforcement may have the right to search an area within the suspect’s immediate control when they arrest someone.

This exception is generally allowed for protection of law enforcement officers and may not give them the right to seize a computer unless it poses a threat. Officers may also search an immediate area if they have reason to believe another suspect is hiding and of course no warrant is needed for contraband in plain sight, neither of which are likely to apply to ESI.

Several problem areas are searches of cars and cell phones.  Upon a traffic stop, police can view the open areas of the car, and if they see something in plain view that gives them probable cause, they can do a full search. This may not extend to a locked glove box or the trunk although some state courts, especially appellate courts, tend to evaluate cases based on a “totality of circumstances” and results may differ.  If an arrest occurs, a full search of the vehicle is allowed.

But what if a laptop or cell phone is found pursuant to a legal search? If the police have probable cause to believe there is evidence of a crime on a computer, they may search it otherwise they will need a warrant.  Cell phones, however, have been given even great protection, a fact of great importance given that surveys show that more than 90 percent of Americans now own or regularly use a cellphone.

In Riley v. California, 134 S.Ct. 2473 (2014), the US Supreme Court, unanimously ruled that police may not search the cell phones of criminal suspects upon arrest without a warrant. The opinion held that smartphones and other electronic devices were not in the same category as wallets, briefcases, and vehicles which are subject to limited initial examination.

Indeed, said Chief Justice Roberts in his opinion, cell phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”  And, he added, cellphones “are based on technology nearly inconceivable just a few decades ago” when the Court had upheld the search of the arrestee’s pack of cigarettes.

Rather, citizens today have a reasonable expectation of privacy for information on their cell phones and, he said, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”

Also, police have generally not been allowed to force an individual to hand over passwords or encryption keys given that the Fifth Amendment protects individuals against compelled self-incrimination. However, that protection is beginning to erode as a Florida Court of Appeals recently ruled that the government can force an iPhone user to release their passcode.

In State v. Stahl, (Second District Court of Appeal of Florida, Case No. 2D14-4283, Dec 7 2016) the State filed a motion to force Stahl to give up his password, alleging that there was no Fifth Amendment implication in doing so. The Court agreed holding that “Unquestionably, the State established, with reasonable particularity, its knowledge of the existence of the passcode, Stahl’s control or possession of the passcode, and the self-authenticating nature of the passcode. This is a case of surrender and not testimony.”

Given the increasing reliance on fingerprint and facial recognition as a means of authentication, this area may change even further since police can take fingerprints and photos incident to an arrest.  Also, note that Carpenter vs. United States is pending before the Supreme Court now. This case asks if authorities need a probable-cause court warrant to access people’s mobile phone location history by “pinging” cell phone towers or is this practice an exception to the US v. Jones decision requiring a warrant for a GPS tracker to be placed on a car.  The theory here relies on the third-party doctrine, which holds that we lose Fourth Amendment protection when we disclose information, such as cell phone locations, to a third party such as ATT or Verizon.

Finally, always keep in mind that a person may give law enforcement the right to conduct a search, but the consent must be voluntarily given with full understanding of the person’s rights.

We’ll publish Part 3 – Issues Managing ESI Data in Criminal Cases – on Friday.

So, what do you think?  Do you handle criminal cases and have a lot of eDiscovery? Read more about it in this eDiscovery in Criminal Cases series and see how it may impact you and your organization.  And, as always, 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.

The Sedona Conference Has Published the Final Version of its Data Privacy Primer: eDiscovery Best Practices

With the Microsoft Ireland case being argued before SCOTUS on February 27 and the General Data Protection Regulation (GDPR) going into effect in May (click here to register for our next webcast on that topic), it’s a big year for data privacy.  In keeping with that theme, The Sedona Conference® (TSC) has published the final version of a primer to help with this growing issue.

Last week, TSC and its Working Group 11 on Data Security and Privacy Liability (WG11) rolled out the final version of its new Data Privacy Primer, almost exactly a year after rolling out the public comment version.  This final version contains several updates following thorough consideration of the public comments submitted between January and April 2017.

WG11 developed the Data Privacy Primer to provide a practical framework and guide to basic privacy issues in the United States and to identify key considerations and resources, including key privacy concepts in federal and state law, regulations, and guidance.

As we noted last year, the Primer is “intended to provide a practical framework and guide to basic privacy issues in the United States and to identify key considerations and resources, including key privacy concepts in federal and state law, regulations, and guidance.”  The TSC notes that it focuses on privacy laws in the U.S. in this Primer and that global privacy laws are outside the scope of its coverage. It also focuses primarily on privacy issues arising under civil rather than criminal law (though criminal law implications are addressed “at various points” in the Primer).

The Primer covers topics ranging from Common Law of Privacy to Federal and State Government Laws and Act regarding privacy policies and protections to discussions of general consumer protection, health (including HIPAA) and financial protections.  It also discusses Workplace and Student privacy considerations which ranges from discussions about use of company equipment and email and bring your own device (BYOD) policies in the workplace and privacy protections for educational records.  Apparently, there were a lot of public comments, because the PDF file for the Primer has ballooned up to a whopping 175 pages (from 115 for the public comment version).  So, it’s not exactly “light” reading for a weighty topic.  :o)

So, what do you think?  How does your organization address data privacy?  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.

Understanding eDiscovery in Criminal Cases: eDiscovery Best Practices

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars, including our webinar last Thursday (Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018), which was great.  If you missed it, you can check out the replay here.  Tom also wrote a terrific four part informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes.  Now, Tom has written another terrific overview for Understanding eDiscovery in Criminal Cases that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

Criminal cases have long been thought of as an arena devoid of electronic discovery issues.  In fact, in 2012 eDiscovery expert Craig Ball wrote in a column regarding the then recently published “Recommendations for Electronically Stored Information Discovery Production in Federal Criminal Cases,” that “… apart from meeting Brady obligations, I think most lawyers regard criminal law as an area where there is no discovery, let alone this new-fangled e-discovery.”

But attorneys who regularly handle criminal cases know that was not the case then, and it is certainly not the state of the field now.  This paper shares a short history of the development of standards for eDiscovery in criminal matters, focusing on specific examples from the Federal court system. It also highlights main issues of importance regarding eDiscovery in criminal matters.

BACKGROUND

In 2004, Judge Marcia Pechman of the Western District of Washington presided over the white-collar case against Kevin Lawrence and his company, Znetix.  That case had nearly 1.5 million scanned electronic documents which at the time was considered an extremely high volume and caused logistical problems for both the parties and the Court.  In 2005, after that trial had concluded, Judge Pechman convened a group of attorneys from the U. S. Defenders Office and the US Attorney in Seattle to discuss more efficient and cost-effective ways to deal with electronic documents in large cases.  This group included Russ Aoki, then a Criminal Justice Act (CJA) Panel attorney appointed to represent Mr. Lawrence and now Coordinating Defense Attorney in complex matters for the Defenders.

That group created a set of best practices policies for large document cases and wiretap surveillance evidence. Those policies were in effect in the Seattle federal court as a local rule for many years before the document mentioned by Craig Ball in his column.  Several other groups then began meeting around the country, eventually resulting in the 2012 protocol which was actually a project of a Joint Technology Working Group of federal criminal practitioners created by the Director of the Administrative Office of the United States Courts (the supervising agency of the U.S. Defenders Office) and the U.S. Attorney General.

The point of this timeline is to show that although attorneys working in the criminal areas have a duty to preserve and produce electronically stored information (ESI) just as their civil brethren do, most state and federal criminal discovery is statutory, or rule-based.  Constitutional concepts apply in much the same manner as the FRCP guide civil matters, to ensure a fair trial and due process, and include the right against self-incrimination and the right against unreasonable searches and seizures.

But criminal cases involve some issues specific to that practice, and it is those we will now discuss.

Issues

An excellent overview of all the issues involved in criminal eDiscovery practice can be found in Criminal Ediscovery: A Pocket Guide for Judges. A 2015 publication of the  Federal Judicial Center authored by Sean Broderick, National Litigation Support Administrator, Administrative Office of the U.S. Courts, Defender Services Office; Donna Lee Elm, Federal Defender Middle District of Florida; Andrew Goldsmith, Associate Deputy Attorney General & National Criminal Discovery Coordinator U.S. Department of Justice; John Haried, Co-Chair, eDiscovery Working Group — EOUSA U.S. Department of Justice and Kirian Raj, Senior Counsel to the Deputy Attorney General U.S. Department of Justice.

That work focuses on a number of issues that are beyond the scope of this document and should be consulted as a resource.  This discussion, however, will focus on the following issues:

  1. Overview of Rules for Criminal Matters
  2. Issues Managing ESI Data in Criminal Cases
    • How Data is Acquired
    • Common Data Types
    • Data Exchange Formats
    • Time Issues Specific to Criminal ESI
  3. Working with Social Media as Evidence
  4. Border Entry

We’ll publish Part 2 – Overview of Rules for Criminal Matters – on Wednesday.

So, what do you think?  Do you handle criminal cases and have a lot of eDiscovery? Read more about it in the following parts of our eDiscovery in Criminal Cases series and see how it may impact you and your organization.  And, as always, 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.

No Sanctions for Spoliation of ESI Against Plaintiff Leads to Summary Judgment Against Defendant: eDiscovery Case Law

We just completed our four part review of case law for 2017 and Tom O’Connor and I discussed important cases for 2017 in our webcast yesterday (click here to check it out).  Now, on to cases to cover for this year…

In IBM v. Naganayagam, No. 15 Civ. 7991 (NSR) (S.D.N.Y. Nov. 21, 2017), 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.

Case Background

In this action against the defendant (a former employee of the plaintiff who had received several Equity Award Agreements (EAAs) during his employment which the plaintiff sought to rescind once the defendant left his employment to join a competitor), the plaintiff filed a motion for summary judgment in the case and the defendant filed a cross-motion pursuant to Rule 37 of the Federal Rules of Civil Procedure for spoliation sanctions.

On October 31, 2016, the defendant filed a motion to compel production of the plaintiff’s strategic plans for Australia and New Zealand, e-mails related to the defendant’s departure from the plaintiff that were referenced the deposition of the defendant’s former supervisor, a list of the defendant’s accounts, and the defendant’s own e-mails from the course of his employment with the plaintiff.  The court issued an Opinion and Order on December 9, 2016, denying the defendant’s request to compel the production of both his own emails and client account information as well as his supervisor’s emails, finding that the defendant had failed to establish the relevance of these materials. However, the court did rule that the plaintiff was required to produce the strategic plans generated by the plaintiff delineating their competitors.  After the plaintiff indicated it was unable to locate the strategy plans, the plaintiff filed a motion for summary judgment in January 2017 and the defendant filed a cross-motion for adverse inference spoliation sanctions ten days later.

Judge’s Ruling

When considering the defendant’s request for sanctions, Judge Romàn noted that “Although the more lenient sanctions standard under Rule 37(e) did not go into effect until after Plaintiff filed the Complaint in the present action, the amended Rule 37(e) can apply retroactively”, observing that the Order included by Chief Justice Roberts (when transmitting the new Rule to Congress) indicated that it would govern “insofar as just and practicable, all proceedings then pending.”

Noting that “amended Rule 37(e) only allows for adverse inference sanctions where the non-movant acted intentionally to deprive another party use of the ESI during litigation”, Judge Romàn, observing that “Defendant merely alleges that Plaintiff acted negligently rather than intentionally”, denied the request for adverse inference sanctions against the plaintiff.  Also, determining that a lack of prejudice against the defendant for any potential spoliation, Judge Romàn ruled that “less severe spoliation sanctions are similarly unwarranted” and denied the defendant’s motion for spoliation sanctions.  With that considered, Judge Romàn found that “there is no genuine dispute of material fact regarding Defendant’s breach of the Plan and EAAs”, and granted the plaintiff’s motion for summary judgment.

So, what do you think?  Should the court have ruled it differently?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

2017 eDiscovery Case Law Year in Review, Part 4

As we noted yesterday, Tuesday and Monday, eDiscovery Daily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to possession, custody and control, subpoena of cloud provider data, waiver of privilege and the first part of the cases relating to sanctions and spoliation.  Today, let’s take a look back at the remaining sanctions and spoliation cases.

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 TODAY’S webcast 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

Here are the remaining fifteen cases related to spoliation and sanctions below:

Court Says Rule 37(e) Doesn’t Apply When Recording Was Intentionally Deleted: In Hsueh v. N.Y. State Dep’t of Fin. Services, New York District Judge Paul A. Crotty relied upon inherent authority to impose sanctions and determined “that an adverse inference is the appropriate remedy” for the plaintiff’s deletion of a recorded conversation with an HR representative, agreeing with the defendants that “Rule 37(e) applies only to situations where ‘a party failed to take reasonable steps to preserve’ ESI; not to situations where, as here, a party intentionally deleted the recording.”

Court Grants Summary Judgment After Plaintiff’s Spoliation Motion Denied: In Taylor v. Thrifty Payless, Inc., d/b/a Rite-Aid, Oregon District Judge Marco A. Hernandez granted the defendant’s motion for summary judgment after denying the plaintiff’s request for spoliation sanctions against the defendant for failing to preserve store videos that were taken on the day of her slip and fall in the defendant’s store.

Court Grants Motion for Terminating Sanctions Against Defendants for Intentional Spoliation: In Omnigen Research et. al. v. Wang et. al., Oregon District Judge Michael J. McShane granted the plaintiffs’ Motion for Terminating Spoliation Sanctions and agreed to issue an Order of Default Judgment in favor of the plaintiffs (while dismissing the defendants’ counterclaims) due to the defendants’ intentional destruction of evidence on several occasions.

With Ample Evidence of Bad Faith, Court Sanctions Defendant for Failure to Produce Documents: In CrossFit, Inc. v. Nat’l Strength and Conditioning Assn., California District Judge Janis L. Sammartino granted the plaintiff’s motion for several issue, evidentiary, and monetary sanctions, but denied the plaintiff’s request for terminating sanctions due to the defendant’s bad faith that resulted in the defendant’s failure to produce documents.

Court Declines to Impose Sanctions for Failure to Preserve Web History: In Eshelman v. Puma Biotechnology, Inc., North Carolina Magistrate Judge Robert B. Jones, Jr., among other rulings, denied the plaintiff’s motion for an order permitting a jury instruction in response to the defendant’s failure to preserve certain internet web browser and search histories, concluding that the plaintiff “is not entitled to a sanction pursuant to Rule 37(e)(1)” and that the plaintiff “is not entitled to an adverse jury instruction as a sanction pursuant to Rule 37(e)(2).”

Defendant Not Sanctioned Despite Use of Evidence Wiping Software: In HCC Ins. Holdings, Inc. v. Flowers, Georgia District Judge William S. Duffey, Jr. denied the plaintiff’s motion for adverse inference sanctions despite evidence that the defendant had used evidence wiping software twice after being ordered to produce her personal computer, stating that the plaintiff “offers only bare speculation that any of its trade secrets or other data were actually transferred” to the defendant’s laptop.

Plaintiff Sanctioned for Spoliation of Evidence in His Case Against Taylor Swift: In Mueller v. Swift, Colorado District Judge William J. Martinez ruled that “Plaintiff’s loss or destruction of the complete recording of the June 3, 2013 conversation [between the plaintiff and his supervisors] constitutes sanctionable spoliation of evidence”, but rejected the defendants’ request to make a finding of bad faith and to give the jury an adverse inference instruction, opting instead for permitting the defendants to cross-examine the plaintiff in front of the jury regarding the record of his spoliation of evidence.

Court Grants Defendant’s Request for $18.5 Million in Attorney Fees and Costs: In Procaps S.A. v. Patheon Inc., Florida District Judge Jonathan Goodman, in a very lengthy ruling, granted the defendant’s supplemental motion for attorney’s fees and non-taxable costs in the full amount requested of $18,494.846.  We’ve covered this case several times over more than three years.

Court Grants Lesser Sanctions Against Defendant for Various Discovery Issues: In New Mexico Oncology v. Presbyterian Healthcare Servs., New Mexico Magistrate Judge Gregory B. Wormuth, detailing numerous defendant discovery deficiencies alleged by the plaintiff, ruled that the “harsh sanctions of default judgment or an adverse jury instruction” requested by the plaintiff “are not warranted” and instead opted to require the defendant to pay plaintiff costs related to activities resulting from defendants’ over-designation of documents as privileged and recommended that the defendants be ordered to pay the plaintiff 75% of the costs associated with its Motion for Sanctions including all fees paid to expert witnesses to prepare reports and testify at the motion hearing.

Court Opts for Lesser Sanction for Failure to Preserve Electronic Vehicle Data: In Barry v. Big M Transportation, Inc., et al., Alabama Chief Magistrate Judge John E. Ott denied the plaintiffs’ request for default judgment sanctions for failing to preserve a tractor-trailer involved in an automobile accident and its “Electronic Data/Electronic Control Module (ECM) Vehicle Data Recorder/Black Box” and the data associated with the ECM device.  As an alternative sanction, Judge Ott indicated the intent to tell the jury that the ECM data was not preserved and to allow the parties to present evidence and argument at trial regarding the defendant’s failure to preserve the data.

Plaintiff Sanctioned for Preserving Only Scanned Copy of Journal and Destroying the Original: In Mitcham v. Americold Logistics, LLC, Colorado Magistrate Judge Nina Y. Wang granted (in part) the defendant’s motion for sanctions for the plaintiff’s delay in producing a copy of a journal she kept while employed by the defendant and for her failure to produce the original copy of the journal by granting leave to re-open the plaintiff’s deposition for an additional two hours to examine the plaintiff about the journal and associated fees and expenses, but denied the defendant’s request for fees and expenses associated with the filing of the instant Motion and denied the defendant’s request for an adverse inference instruction.

Court Characterizes Plaintiff’s Request for Spoliation of Images Still Available as “Frivolous”: In Barcroft Media, Ltd. et al. v. Coed Media Grp., LLC, New York District Judge Jesse M. Furman denied the Plaintiffs’ motion for spoliation sanctions for failing to preserve web pages containing disputed images, and motion in limine to preclude the testimony of a defense expert witness for failing to list him in the defendant’s initial disclosures.

Court Denies Default Judgment Sanctions for Defendant’s Production of Two Versions of Same Email: In Catrinar v. Wynnestone Communities Corp., et al., Michigan Magistrate Judge R. Steven Whalen denied the plaintiff’s Motion for Discovery Sanctions (requesting a default judgment) for fabricating and producing false evidence, finding that the defendant’s production of two versions of an email fail all four factors of the Harmon test applied by the court in this case to determine whether the defendant’s failure was due to willfulness, bad faith, or fault and whether the plaintiff was prejudiced by the defendant’s conduct, among other factors.

Houston, We Have a Problem – Court Specifies Jury Instructions to Address Spoliation Findings: In GN Netcom, Inc. v. Plantronics, Inc., Delaware District Judge Leonard P. Stark chose to determine the preliminary and final jury instructions he would give with respect to the defendant’s spoliation for the “intentional and admitted deletion of emails” ruled on earlier, as well as the “Stipulated Facts” he would read to the jury at or near the start of the trial, rather than respond to the four spoliation-related questions posed by the plaintiff or defendant.

Dispute Over Scope of Preservation Obligation Leads to Partial Sanctions For Now: In E.E.O.C. v. GMRI, Inc., Florida Magistrate Judge Jonathan Goodman, in a very lengthy and detailed order, denied in part and granted in part the plaintiff’s motion for sanctions for spoliation of paper applications, interview booklets, and emails.  Judge Goodman did not grant the request for most-severe type of relief sought – permissible inferences at the summary judgment and trial stages – but did rule that the plaintiff could “present evidence of the purportedly destroyed and/or missing paper applications, interview booklets and guides, and emails to the jury” and “argue to the jury that Seasons 52 acted in bad faith (as defined by Rule 37(e)(2))”, which could lead to the jury inferring that the lost ESI was unfavorable to the defendant.

That’s it for this year’s review.  Tomorrow, we get started on cases we plan to cover this year!  Stay tuned!

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

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.