Close
Enter your
text here

Production

Lawyer’s Pants Literally Catch on Fire and Alexa to “Testify”: eDiscovery Trends

OK, this first story isn’t exactly an eDiscovery story, but it’s too good to pass up…

Here’s a question for you: Would you believe what a lawyer was telling you during closing arguments if his pants were, literally, on fire?

According to this story from the Miami Herald, this actually happened on Wednesday as Miami defense lawyer Stephen Gutierrez began his closing arguments in front of a jury — in an arson case.

Gutierrez, who was arguing that his client’s car spontaneously combusted and was not intentionally set on fire (hmmm…), had been fiddling in his pocket as he was about to address jurors when smoke began billowing out his right pocket, witnesses told the Miami Herald.

Gutierrez rushed out of the Miami courtroom, leaving spectators stunned. After jurors were ushered out, Gutierrez returned unharmed, with a singed pocket, and insisted it wasn’t a staged defense demonstration gone wrong, instead blaming a faulty battery in an e-cigarette, observers said.

Miami-Dade police and prosecutors are now investigating the episode. Officers seized several frayed e-cigarette batteries as evidence.  Miami-Dade Circuit Judge Michael Hanzman, in the coming days, could decide to hold Gutierrez in contempt of court.

Despite his own demonstration of spontaneous combustion, Gutierrez’s client, Claudy Charles, was convicted of second-degree arson.

Now, on to the eDiscovery story…

Those who remember last year’s battle between Apple and the Justice Department over the Judge’s order for Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters may also remember that the Justice Department asked the court to vacate its order requiring Apple to assist when an unnamed third party was able to access the iPhone.  Here’s another battle that was shaping up over access to data on a device that has ended shortly after it began.

According to Legaltech News (Amazon, Avoiding First Amendment Clash, Drops Objections to Echo Warrant, written by Ben Hancock), Amazon Inc. has agreed to hand over recordings from an “Echo” device that was in the home of a murder suspect in Arkansas, after initially resisting doing so on First Amendment grounds.

In a stipulation filed Monday in the Circuit Court of Benton County, Arkansas, Amazon’s attorneys at Davis Wright Tremaine wrote that defendant James Bates had consented to the production of the recordings from his Echo, and that its motion to quash a warrant seeking the data was now moot.

A hearing on the motion had been set for Wednesday. Bates’s attorney, Kathleen Zellner (most notable for her work in wrongful conviction advocacy and current representation of Steven Avery), said in a tweet Tuesday morning: “We agreed to release recordings-my client James Bates is innocent.”

Amazon’s fight against the warrant seeking data from Bates’ Echo had been closely watched by legal experts as a test of the limits of privacy protections for data gathered by connected devices in consumers’ homes. I guess we’ll have to save that first battle over privacy rights by Echo owners for another case.

Having an Echo in our home and hearing Alexa often say “I didn’t get that” when we’re in normal conversation and not making an Echo request, I can only imagine how much data there is, or how long it’s retained.  Cases like these will continue to illustrate the amount of ESI that IoT devices may hold.

So, what do you think?  Should individuals have privacy rights to the data on their IoT devices, like the Amazon Echo?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Judge Peck Objects to Defendant’s Form of Objections: eDiscovery Case Law

In Fischer v. Forrest, Nos. 14 Civ. 1304 (PAE) (AJP), 14 Civ. 1307 (PAE) (AJP) (S.D.N.Y. Feb. 28, 2017), New York Magistrate Judge Andrew J. Peck ordered the defendants “to revise their Responses to comply with the Rules”, specifically Rule 34(b)(2)(B) and Rule 34(b)(2)(C), amended in December 2015 requiring objections to be stated with specificity and directing that an objection must state whether any responsive materials are being withheld on the basis of that objection.

Judge Peck wasted no time getting to the point in his ruling, stating:

“It is time, once again, to issue a discovery wake-up call to the Bar in this District: the Federal Rules of Civil Procedure were amended effective December 1, 2015, and one change that affects the daily work of every litigator is to Rule 34. Specifically (and I use that term advisedly), responses to discovery requests must:

  • State grounds for objections with specificity;
  • An objection must state whether any responsive materials are being withheld on the basis of that objection; and
  • Specify the time for production and, if a rolling production, when production will begin and when it will be concluded.

Most lawyers who have not changed their ‘form file’ violate one or more (and often all three) of these changes.”

In these related cases asserting claims for, among other things, copyright and trademark violations, the defendants’ amended Rule 34 Responses contained (according to Judge Peck) “17 ‘general objections,’ including General Objections No. I stating that ‘Defendant objects to the requests to the extent that they call for the disclosure of information that is not relevant to the subject matter of this litigation, nor likely to lead to the discovery of relevant, admissible evidence.’”

Judge Peck proceeded to “count the ways” that the defendants had violated the Rules:

“First, incorporating all of the General Objections into each response violates Rule 34(b)(2)(B)’s specificity requirement as well as Rule 34(b)(2)(C)’s requirement to indicate whether any responsive materials are withheld on the basis of an objection. General objections should rarely be used after December 1, 2015 unless each such objection applies to each document request (e.g., objecting to produce privileged material).”

“Second, General Objection I objected on the basis of non-relevance to the ‘subject matter of this litigation.’…The December 1, 2015 amendment to Rule 26(b)(1) limits discovery to material ‘relevant to any party’s claim or defense…’ Discovery about ‘subject matter’ no longer is permitted. General Objection I also objects that the discovery is not ‘likely to lead to the discovery of relevant, admissible evidence.’ The 2015 amendments deleted that language from Rule 26(b)(1), and lawyers need to remove it from their jargon…”

“Third, the responses to requests 1-2 stating that the requests are ‘overly broad and unduly burdensome’ is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing. Indeed, even before the December 1, 2015 rules amendments, judicial decisions criticized such boilerplate objections…”

“Finally, the responses do not indicate when documents and ESI that defendants are producing will be produced.”

As a result, Judge Peck ordered the defendants “to revise their Responses to comply with the Rules”, stating:

“The December 1, 2015 amendments to the Federal Rules of Civil Procedure are now 15 months old. It is time for all counsel to learn the now-current Rules and update their ‘form’ files. From now on in cases before this Court, any discovery response that does not comply with Rule 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).”

So, what do you think?  Do you still encounter boilerplate objections in discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court Defines Narrowed Scope for Requests for Social Media Data: eDiscovery Case Law

In Scott v. United States Postal Service, No. 15-712-BAJ-EWD (M.D. La. Dec. 27, 2016), Louisiana Magistrate Judge Erin Wilder-Doomes granted the defendant’s Motion to Compel Discovery in part, ordering the plaintiff to provide complete responses to the defendant’s interrogatory and request for production, but only after she limited the scope of both requests, determining them to be “overly broad”.

Case Background

In this personal injury case stemming from an automobile accident involving a vehicle driven by a United States Postal Service worker while that worker was on the job, the defendant requested via Interrogatory for the plaintiff to “Identify any and all social media (including but not limited to Facebook, Instagram, Twitter)” she had used since June 6, 2014 (the date of the accident).  The defendant also requested (via Request for Production) for the plaintiff to “Produce all postings related to any type of physical or athletic activities from June 6, 2014, to present on all social media websites, including, but not limited to Facebook, Instagram and Twitter.”

In her written discovery responses, Plaintiff objected to each of these requests by asserting that “the information requested is inclement, immaterial and not reasonably calculated to lead to the discovery of admissible evidence.”

The defendant sent a letter to the plaintiff in July 2016, explaining that it had a good faith basis for believing that the plaintiff had posted photographs and other information on social media about her activities since the accident, which involve physical activity (including one photograph on Facebook account showing the plaintiff and her fiancé in ski attire on a snow covered mountain), and that such information is relevant to the case.

After efforts to confer were unable to resolve the dispute, the defendant filed its Motion to Compel in September 2016.  In response, the plaintiff argued that the defendant’s request for all of her social media photos was overly broad because it would require the production of a significant amount of irrelevant information.  In its Reply Memorandum, the defendant maintained that the plaintiff had waived her objections to the discovery requests at issue and that the defendant was entitled to the information and documents requested because they are relevant to the plaintiff’s personal injury claims.

Judge’s Ruling

Noting that “Plaintiff does not address Defendant’s argument that her failure to timely voice adequate objections to the discovery requests constitutes a waiver of any objection she may have to the discovery requests”, Judge Wilder-Doomes found that the “boilerplate” language used by the plaintiff in objecting “does not suffice to assert a valid objection to the discovery requests” and found that the plaintiff had waived her objections to the discovery requests.

Despite that ruling, Judge Wilder-Doomes found the discovery requests to be “overbroad” and decided to “limit the requests in accordance with Fed. R. Civ. P. 26(b)(1)”.  With regard to the Interrogatory, Judge Wilder-Doomes limited the request to “identifying all social media accounts that Plaintiff has used since the underlying accident on June 6, 2014, her usernames, whether she has accessed the accounts since the accident, and the last time she accessed the accounts”.

With regard to the Request for Production, she limited the request to “all of Plaintiff’s social media postings, including photographs, since the June 6, 2014 accident that: (1) refer or relate to the physical injuries Plaintiff alleges she sustained as a result of the accident and any treatment she received therefor; or (2) reflect physical capabilities that are inconsistent with the injuries that Plaintiff allegedly suffered as a result of the accident.”

So, what do you think?  Should courts limit the scope of discovery 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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

Court Orders Plaintiff to Produce Emails with Original Metadata: eDiscovery Case Law

In Singh et. al. v. Hancock Natural Resources Group, Inc. et. al., No. 15-1435 (E.D. Cal., Dec. 29, 2016), California Magistrate Judge Jennifer L. Thurston granted the defendants’ motion to compel (in part), ordering the plaintiffs’ to “produce all emails and other documents sought by the defendants in the format demanded with the accompanying metadata from the native computer”.

Case Background

In this breach of contract case over the sale of farmland, the defendants requested email communications in TIFF format with the corresponding metadata.  The plaintiff produced TIFF formatted emails, but only after they had been forwarded from the subject computer to the office of the former attorney for the plaintiffs, rendering the metadata “wholly useless and irrelevant because it pertains to the forwarded versions of the emails to Plaintiffs’ counsel’s paralegal, not the original emails between Plaintiffs and Hancock.”

The defendants argued that the metadata from the native versions of the email was crucial because it appeared that the plaintiffs produced key emails that were changed when compared to the same emails directed to the recipient.  According to the defendant, some emails appeared to have been “whited out” from the plaintiffs’ versions, and in other instances new and different text had been inserted into Plaintiff’s versions.  In one example, the plaintiffs’ copy of an email stated that the defendant’s representative indicated (apparently, when discussing a document related to the sale) that “It’s Acceptable.”  The one produced by the defendant did not have this language.

Regarding the inconsistencies, the plaintiff’s only argument was that their attorney (who had since been replaced) explained that he did not have any experience in eDiscovery and was working with a computer specialist to correct the problem.

There was also a dispute over whether the defendants had actually ever sent an email with a signed copy of the sales agreement.  The plaintiffs provided a standalone PDF copy of the sales agreement signed by the plaintiff (with no supporting metadata) and an email from the plaintiff, sending an unsigned version of the agreement.

Judge’s Ruling

With regard to the forwarded emails produced with incorrect metadata, Judge Thurston ruled “In light of the significant showing as to the importance of the metadata from the native computer, the Court GRANTS the motion. Thus, the motion to compel as to any request for electronically held documents is GRANTED. Within ten days, the plaintiffs SHALL produce all emails and other documents sought by the defendants in the format demanded with the accompanying metadata from the native computer.”

Observing that the defendants were arguing that the email that discussed the sales agreement included an unsigned, draft copy of the agreement and that the plaintiffs had failed to provide an email which supported that the plaintiff sent an executed, final copy of the sales agreement, Judge Thurston ordered the plaintiff to “provide all responsive emails and documents… in the format demanded and with the accompanying metadata from the native computer.”

So, what do you think?  Would a native file production have eliminated the issue?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court Orders Plaintiff to Produce Native Format Version of Email Potentially Altered: eDiscovery Case Law

In Lifetouch National School Studios, Inc. v. Roles, No. 3:15-cv-234 (W.D. P.A., Dec. 15, 2016), Pennsylvania District Judge Kim R. Gibson granted the portion of the defendant’s motion to compel associated with the request for the plaintiff to produce all copies of a potentially altered email in native format circulated within its organization or any of its agents.

Case Background

In this breach of contract case, the plaintiff alleged that the defendant had accepted a sales position with a competitor of the plaintiff company (Strawbridge Studios, Inc.) and solicited the plaintiff’s employees and customers in violation of her employment agreement.  During discovery, two different versions of a particular email were produced: one received by a client where the client wrote “Strawbridge[,] No contract.” and the other received by Strawbridge forwarded by an employee (Joseph Segall) of the plaintiff where the client had written “Strawbridge[,] No contract. Beth Roles.”

Both individuals who wrote the emails testified under oath that they did not include the defendant’s name in the emails, leaving the defendant to request leave to amend her counterclaim, alleging that the Strawbridge email was altered by the plaintiff to interfere with her employment at Strawbridge.  The Court granted as unopposed the defendant’s motion for leave to amend.  The defendant then filed a motion to compel production of, among other things, copies of the email in native format from all individuals at the plaintiff’s organization to whom it was forwarded or sent.

Judge’s Ruling

Judge Gibson first commented on the relevancy of the email, stating “Based on Roles’s counterclaims, this information falls within the scope of relevant material. Roles’s counterclaims are premised on the allegation that Lifetouch intentionally altered the August 25, 2015 email. Documents illustrating how that email was circulated within Lifetouch relate to whether Lifetouch did in fact alter the August 25, 2015 email, and—if so—how that alteration occurred.”

When assessing the appropriateness of discovery of the emails, Judge Gibson, noting that the plaintiff appeared to have abandoned earlier privilege objections for the emails, noted “Lifetouch appears to argue that it has already produced enough information regarding the emails. Lifetouch states that Roles ‘already has a copy of the email from Segall to Strawbridge,’ and Lifetouch goes on to explain that it has produced PDF versions of the email and the native form of the email as forwarded from Segall to Strawbridge. Further, Lifetouch argues that ‘a copy of that email in native form is not only unreasonable, but not likely to lead to the discovery of admissible information based on those emails that have already been produced.’”

In response, Judge Gibson said “These arguments are insufficient to avoid discovery. As an initial matter, the fact that Roles already has a copy of the August 25, 2015 email has no bearing on whether Lifetouch altered the email. The relevance of the documents Roles seeks is derived from their circulation within Lifetouch; a complete picture of how the email was received, discussed, and ultimately sent—or even discussed after it was sent—would be relevant to Roles’s claims. Thus, the fact that Roles already has a copy of the email is irrelevant. And Lifetouch’s argument that it should not have to produce these documents because it already produced a copy of the email from Segall to Strawbridge is unpersuasive for the same reasons.”

Judge Gibson also noted that, while arguing that production in native format is unreasonable, “Lifetouch does not explain what about native production would be unreasonable. Furthermore, Lifetouch specifically agreed ‘to produce . . . electronic documents in native format’ in the parties’ Rule 26(f) Report.”

As a result Judge Gibson granted the portion of the defendant’s motion to compel associated with production of the potentially altered email in native format and also ruled that “attorneys’ fees for this portion of Roles’s Motion to Compel are proper” and ordered the defendant to submit an affidavit detailing the attorneys’ fees she incurred in bringing her Motion to Compel.

So, what do you think?  Was it appropriate to order production of the email in native format?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

2016 eDiscovery Case Law Year in Review, Part 2

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

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

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

COOPERATION

Why can’t we all just get along?  There were several instances where parties couldn’t agree and had to kick issues up to the court for resolution, here are four such cases:

Withheld Evidence Leads to New Trial, Resignation of Senior City Attorney: In Colyer v. City of Chicago, Illinois District Judge Edmond E. Chang granted in part the plaintiff’s post trial motion, denying the plaintiffs’ request for a directed verdict, but granting their request for a new trial after it was discovered that the defendants’ attorney had “intentionally” withheld the recording of a police dispatcher’s description of a possible suspect that was key in determining whether Chicago police officers acted with excessive force in killing a suspect in a traffic stop.  The plaintiffs also were awarded their attorneys’ fees and costs expended on preparing for the first trial, conducting the trial itself, and conducting the post-trial discovery and briefing.

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

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

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

DISPUTES ABOUT DISCOVERY

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

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

EDISCOVERY COST SHARING AND REIMBURSEMENT

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

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

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

PRODUCTION FORMAT DISPUTES

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

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

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

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

PRIVILEGE DISPUTES

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

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

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

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

APPLE V. SAMSUNG

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

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

Tomorrow, we will cover cases related to social media discovery, technology assisted review and the first part of the cases relating to sanctions and spoliation (yes, there were that many).  Stay tuned!

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

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court Orders Defendant to Produce Additional ESI Responsive to 78 “Unopposed” Search Terms: eDiscovery Case Law

In Venturdyne, Ltd. d/b/a Scientific Dust Collectors v. Carbonyx, Inc., d/b/a Carbonyx Carbon Technologies, et. al., No. 14-00351 (N.D. Ind., Nov. 15, 2016), Indiana District Judge John E. Martin ordered the defendant to produce additional ESI to the plaintiff to be retrieved via 78 “unopposed” search terms that neither party objected to during negotiation over the plaintiff’s original list of 126 search terms.

Case Background

In this breach of contract case, the parties agreed to use keywords to search the defendant’s electronically stored information (ESI) and the defendant turned over sample emails related to the case to help determine what keywords would be appropriate.  On February 25, 2016, the plaintiff’s counsel sent the defendant’s counsel a list of 126 keywords to use for retrieving ESI.  On March 10, the defendant’s counsel sent an email to the plaintiff striking 20 search terms from the list and, on April 28, the plaintiff’s counsel responded by voluntarily removing 28 additional terms, leaving 78 terms and also objecting to 7 of the 20 terms deleted by the defendant.  In all, neither party objected to 78 of the original 126 search terms during this negotiation.

The plaintiff’s counsel sent the defendant’s counsel follow-up emails on May 6, May 24, June 3, June 13, and June 30 and the defendant’s counsel did not respond to any of those emails, causing the plaintiff to file a Motion to Compel on July 12.

Judge’s Ruling

While noting that “Carbonyx contends that it has produced ‘more than 12,000 pages of documents, consisting of emails and their attachments, as well as paper documents’”, Judge Martin also noted that “these documents were generated using the search terms ‘Scientific Dust Collectors’ – the name Venturdyne does business under – and ‘Scientific.’” (those terms happen to be redundant, by the way, as the second term would would include the results of the first term – just sayin’)  But, he also noted that “Carbonyx’s assertion that the documents it has already produced…are completely responsive is not convincing.”

As a result, Judge Martin stated:

“Accordingly, Carbonyx must produce documents flagged by the 78 unopposed search terms contained in DE 48-7. Those terms appear ‘reasonably calculated to lead to discovery of admissible evidence’ in that the terms were based on sample emails related to this case and the parties already eliminated many generic words like ‘money.’”

Judge Martin also noted that “the court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.”  So, he ordered the plaintiff to file an itemization of its costs and fees, including attorney’s fees, incurred in making the Motion to Compel by November 21, with the defendant to file a response by December 5 and the plaintiff to file a reply to that by December 12.

So, what do you think?  Would the ruling have turned out differently if the defendant had continued to work with the plaintiff?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Defendant Ordered to Produce Source Code Responsive to Agreed Upon Search Protocol: eDiscovery Case Law

In ACI Worldwide Corp. v. MasterCard Technologies, LLC et. al., No. 14-31 (D. Nebraska, Oct. 27, 2016), Nebraska Magistrate Judge F.A. Gossett granted the plaintiff’s Motion to Compel Production of the defendant’s Full Source Code in part, “to the extent there are any files that MasterCard has not produced responsive to the parties’ previously established joint Search Protocol.”

Case Background

In this action where the plaintiff alleged the defendants violated a licensing agreement and disclosed confidential information regarding the plaintiff’s software, the disclosure of the defendant’s source code had been the subject of ongoing discovery disputes for more than a year.  In an order dated July 13, 2015 (and covered by us here), the court found the plaintiff had shown the relevance and a particular need for electronically stored information (“ESI”) constituting or containing the plaintiff’s proprietary information, but, because the court did not have the expertise necessary to determine the best way to retrieve the requested information, the parties were directed to devise a joint search protocol or methodology to retrieve the information requested by the plaintiff; otherwise, the court would appoint a special master.

The parties then generally agreed to a search protocol, but were unable to reach a full agreement on the search terms to be used.  In August 2015, the court ordered the defendant to run the plaintiff’s “Counterproposal Search Protocol” and produce the search results no later than September 16, 2015; after the defendant’s objections were overruled, the parties subsequently conferred and agreed that the defendant would run the Search Protocol and produce the requested materials by October 9, 2015. The defendant continued to hesitate to produce actual source code without an additional protective order, and after another motion to compel by the plaintiff, the court again ordered the defendant to run the Search Protocol and produce the requested information, which included source code. In February 2016, the court denied the defendant’s motion for partial reconsideration, but stated it would entertain inclusions of additional provisions to the protective order in place, if the parties agreed. In March, the court adopted the parties’ joint protective order for source code.

Ultimately, the plaintiff filed the current motion to compel disclosure of the entire source code, claiming that the defendant had not produced all items identified by the Search Protocol, stating production of the entire source code was warranted due to “MasterCard’s history of refusing to produce clearly relevant source code” and alleging that the source code produced to date supported its allegations of misappropriation. The defendant counters that the remedy is the production of missing files pursuant to the Search Protocol, and not the production of the entire source code.

Judge’s Ruling

Noting its previous emphasis that “The Federal Rules of Civil Procedure . . . emphasize that electronic discovery should be a party-driven process”, Judge Gossett ruled that:

“ACI’s request now for the entire source code to the MDS is not proportional to the needs of the case, would include information irrelevant to ACI’s claims, and would defeat the purpose of the protracted efforts by the parties to reach a compromise regarding production of MDS source code…To the extent MasterCard’s production has been deficient, the remedy is not to compel the production of its entire source code for the MDS. Rather, the court will compel MasterCard to produce only the source code retrieved using the parties’ joint search protocol that MasterCard has not yet produced.”

So, what do you think?  Given the defendant’s numerous delays in producing source code, should the court have granted the plaintiff’s motion in total?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Defendant Sanctioned for Failing to Preserve Text Messages and Failing to Produce Native Format Data: eDiscovery Case Law

In First Financial Security, Inc. v. Freedom Equity Group, LLC, No. 15-1893 (N.D. Cal., Oct. 7, 2016), California Magistrate Judge Howard R. Lloyd issued permissive adverse inference instruction sanctions against the defendant for deleting relevant text messages “with the intent to deprive” the plaintiff of the use of those text messages and for failing to produce native-format data that it was repeatedly ordered to produce.  Judge Lloyd declined to sanction the defendant for spoliation of phone records or employment applications.

Case Background

In this case, the plaintiff sued the defendant for intentional interference with contract and related violations of California’s Unfair Competition Law (“UCL”), alleging the defendant induced approximately 1,400 sales contractors to leave the plaintiff and join the defendant “en masse”.  The parties filed a Discovery Dispute Joint Report after the defendant had “concededly” failed to produce requested discovery materials, including: (1) text messages possessed by defendant principals; (2) employment applications submitted by former plaintiff contractors; (3) native-format copies of digital data related to the circumstances in which the defendant hired the former plaintiff contractors; and (4) phone records. The court, based on the defendant’s conceded failure to comply with its discovery obligations and absent any substantive opposition, ordered the defendant to produce the discovery materials requested.

After the defendant still failed to produce all of the above, the plaintiff filed its sanctions motion.  The defendant conceded in its opposition brief that the texts “were deleted”, but argued that these texts were “innocently” deleted by people who did not understand their discovery obligations. The defendant also asserted: (1) the phone records were deleted by the phone company because those records “are kept only for a year”; (2) there is no native-format data to produce, because the data “is a data base” that can be reviewed through “a query”; and (3) the defendant never possessed any employment applications, because the information in any given employment application is digitally submitted directly to a “data base” and no application document is separately retained.

After oral arguments where the defendant conceded it produced a physical spreadsheet instead of producing native-format copies of the underlying data; the court ordered the defendant to produce, instead, the native-format data.  In response, the defendant issued a declaration stating that it did not have possession of the data because it relied upon third party software service providers to receive and store the data, that it has changed providers and the original provider had no obligation to turn over the data without a court order.

Judge’s Ruling

Judge Lloyd, ruling that the duty to preserve evidence arose no later than January of 2014 (when the defendant warned its employees that there would be a lawsuit), was “persuaded that FEG had an obligation to preserve text messages in the anticipation or conduct of litigation, that FEG took no reasonable steps to preserve text messages,…that those messages cannot be restored or replaced through additional discovery and that FEG’s agents acted with the intent to deprive FFS of the use of the deleted text messages.”

Also, noting that “[t]he court twice ordered FEG to produce the native-format data sought by FFS”, Judge Lloyd determined that “FEG has misled and prejudiced FFS in the course of FFS’s attempts to discover native-format copies of electronically stored data” relating to the case, further noting that the defendant had raised the claim that it lacks possession, custody, and control of the data “far too late.”

As a result of the deletion of text messages and the failure to produce the native-format data, Judge Lloyd issued permissive adverse inference instruction sanctions against the defendant, “because mandatory inferences are not necessary to remedy the prejudice FFS has suffered.”  Judge Lloyd declined to issue sanctions with respect to the phone records and the employment applications, failing to find intent to deprive for the former and finding that actual documents were not created in the latter.

So, what do you think?  Was a permissive adverse inference instruction a severe enough sanction?  Please share any comments you might have or if you’d like to know more about a particular topic.

If you’re in Houston, don’t forget that tonight is “Drinks with Doug” at The Tasting Room – CityCentre.  Click here to find out how to RSVP.  Hope to see you there!

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

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

Court Orders Forensic Examination of Key Custodian Computers: eDiscovery Case Law

In Davis v. Crescent Electric Company et. al., No. 12-5008 (D. S.D., Oct. 12, 2016), South Dakota District Judge Lawrence L. Piersol ruled that a non-disclosure agreement would sufficiently protect any and all confidential and/or privileged information of the defendant that may be uncovered during the forensic examination for key custodians and that the information being requested by the plaintiff was relevant and not overly broad.

Case Background

In this employment discrimination case, the plaintiff filed a Motion to Compel the defendant (her former employer) in August 2015 to produce Outlook PST files from the defendant’s server, from the plaintiff’s work computer and from the defendant’s Outlook archives to learn “how Julie Skinner/Stienstra had access to Lisa A. Davis’ email in order to print them.”  The court granted the motion in April 2016, and in August 2016, the plaintiff requested that the defendant provide access to the key custodians’ computers for a forensic examination.  The defendant refused, citing concerns that “unfettered investigation” on the computers “may provide access to confidential information and privileged communications, and it is beyond the scope of the Court’s Order and the relief requested.”  That same day, counsel for the plaintiff suggested having the forensic examiner execute a non-disclosure agreement and further requested that the defendant’s internet technician contact the forensic examiner as soon as possible “so this matter can be resolved without further court intervention.”

The defendant’s technician provided only of the email data requested, indicating that was the only data he was told to provide and that any other email data would have to be requested from counsel. The plaintiff’s counsel did just that, but the defendant’s counsel refused, reiterating the position that the information was beyond the scope of the order and the data may contain confidential and privileged information. As a result, the plaintiff filed a supplemental Motion to Compel.

Judge’s Ruling

Referencing Rule 37(a)(3)(B)(iv), Judge Piersol noted that, ultimately “[c]ourts consider the prior efforts of the parties to resolve the dispute, the relevance of the information sought, and the limits imposed by Rule 26(b)(2)(C) when deciding whether to grant a motion to compel.”  With regard to the plaintiff’s counsel effort to resolve the issue by offering to have the forensic examiner sign a non-disclosure agreement and the defense counsel’s refusal of that offer, Judge Piersol stated:

“First, CESCO does not explain how or why a non-disclosure agreement would not quell its fears of disclosure of confidential and/or privileged information. CESCO simply makes general claims concerning the disclosure of such information. Second, the computer that Davis seeks to examine is a business computer that is unlikely to contain any personal information. Therefore, without more of an explanation by CESCO as to what it seeks to protect and why it seeks to protect it, the Court finds that a non-disclosure agreement executed by Mr. Sevel will sufficiently protect any and all confidential and/or privileged information that may be uncovered during the forensic examination of Julie Stienstra/Julie Skinner’s computer and associated export logs.”

With regard to the relevance of the information sought, Judge Piersol noted that the plaintiff sought a forensic examination to determine the authenticity of a claimed fake email and that the plaintiff’s forensic examiner stated that “printed versions of emails, or email threads, cannot be considered to be forensically sound unless the original digital version can be examined for authenticity. In this situation, a review of the PST file containing the original emails and emails threads, with their associated metadata, is needed”.  Finding also that the defendant’s claim that the plaintiff’s request was overly broad to be “without merit”, Judge Piersol granted the plaintiff’s Supplemental Motion for an Order to Compel with the plaintiff’s forensic examiner to execute a non-disclosure agreement prior to his examination.

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

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