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Production

Court Denies Plaintiff’s Request for Defendant’s Source Code Production: eDiscovery Case Law

In Congoo, LLC v. Revcontent LLC, et al, No. 16-401 (MAS) (D.N.J. Aug. 10, 2017), New Jersey Magistrate Judge Tonianne J. Bongiovanni, finding that the plaintiff “has not met its burden of demonstrating that production of the source code is relevant and necessary”, denied the plaintiff’s Motion to Compel the inspection and production of the defendants’ source code.

Case Background

In this case the plaintiff alleged that the defendant (its competitor) published or caused to be published false and misleading “native advertising” (i.e., integrated online advertising in published content on various internet news and information sites).  The plaintiff stated that the source code was highly relevant because it pertained to a central issue in the case, that is, whether the defendants were involved in the creation of the content in false and misleading ads and asserted that production of the source code was necessary to prove their claim.  The defendants argued that requiring it to produce its source code to a competitor would cause irreparable harm to its business and stated that it has provided the plaintiff with evidentiary support concerning the few software functions that are relevant to its claims.

In February 2017, a discovery conference was held to discuss the issue of production of the source code and the Court stated that the parties should make their full submission to the Court on the issue.  Then, in March, the plaintiff filed the instant motion to compel inspection and production of the defendants’ source code.

Judge’s Ruling

Judge Bongiovanni, noting that “[t]he Court has broad discretion in deciding discovery issues such as that raised by the parties here”, indicated that “[i]n order for the production of source code to be compelled, Plaintiff must prove that it is relevant and necessary to the action.”  In that regard, Judge Bongiovanni stated that:

“The Court is not convinced that an understanding of the Defendants’ influence on or creation of the ads requires production of the technology, i.e., the source code, utilized by the Defendants. Rather, the Court is persuaded that through witness testimony an understanding of the functionality of the software algorithm as it relates to issues in this case, e.g., selection of higher paying Content Recommendations, can be adequately addressed.”

Judge Bongiovanni also found that the source code’s “highly confidential nature is such that it cannot be adequately safeguarded by a Discovery Confidentiality Order and therefore outweighs the need for production”, pointing to the declaration of the defendant’s Chief Product Officer, which pointed to an investment of 7 to 10 million dollars in the development of the software and the fact that neither the defendant’s “in-house lawyers nor any of our outside counsel is permitted to access and/or view Revcontent’s highly proprietary Source Code.”

As a result, Judge Bongiovanni found that the plaintiff “has not met its burden of demonstrating that production of the source code is relevant and necessary” and denied the plaintiff’s Motion to Compel the inspection and production of the defendants’ source code.

So, what do you think?  Should there be special considerations for producing source code or other intellectual property?  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.

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.

Citing SCA, Court Denies Motions to Compel Microsoft, Google and Yahoo to Produce Emails: eDiscovery Case Law

In PPG Indus., Inc. v. Jiangu Tie Mao Glass Co., Ltd., No. 2:15-cv-965 (W.D. Pa. July 21, 2017), Pennsylvania District Judge Mark R. Hornak denied the plaintiff’s Motions to Compel third parties Microsoft, Google and Yahoo to Produce Responsive Documents Pursuant to their Subpoenas, finding that “resolution of this case begins and ends with the Stored Communications Act (‘SCA’), which generally provides that ‘a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.’”

Case Background

In this case where one of the plaintiff’s employees was arrested and charged with theft of trade secrets and ultimately committed suicide while under house arrest, the plaintiff obtained consent for the production of all materials related to the case from the employee’s brother, who was also the executor and beneficiary of his estate.  After receiving permission from the Court to conduct limited pre-answer discovery and serve specified subpoenas, the plaintiff served subpoenas on Microsoft, Google and Yahoo seeking e-mail communications received and sent from the employee’s accounts with each company.  When Microsoft, Google and Yahoo refused to provide the requested communications, the plaintiff filed the Motions to Compel.

Judge’s Ruling

Judge Hornak began his ruling by stating: “The resolution of this case begins and ends with the Stored Communications Act (‘SCA’), which generally provides that ‘a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.’”  He also noted, however, “under the SCA a provider ‘may divulge the contents of a communication’ in certain circumstances, including when it has ‘the lawful consent of the originator or an addressee or intended recipient of such communication.’ § 2702(b)(3).”

The plaintiff argued that because the executor of the employee’s estate had consented to production of the emails, the SCA’s exception for the “lawful consent of the originator,”§ 2702(b)(3), applies and argued that under Pennsylvania law an executor has the authority to handle a decedent’s digital assets, including his electronic communications.  However, Judge Hornak stated that “First, it is plain that the SCA does not provide an exception to its general prohibition on disclosure for civil subpoenas…Second, even when one of the exceptions to prohibited disclosures delineated in§ 2702(b) applies, the SCA nonetheless does not require providers to disclose communications. To begin, § 2702(b) specifically states that providers ‘may’ divulge communications if an exception applies; it does not state that they ‘must’ do so.”

Judge Hornak did note that the plaintiff “could still gain access to the emails in Thomas Rukavina’s Microsoft account should it choose to pursue them. Microsoft stipulated at argument and in its papers that if the Pennsylvania court with jurisdiction over Thomas Rukavina’s estate concludes that Robert Rukavina’s consent is ‘lawful consent’ under § 2702(b)(3), Microsoft will voluntarily divulge the emails PPG seeks.”  He also noted that the plaintiff “could also potentially obtain the emails in Thomas Rukavina’s Yahoo and Google accounts by identifying the individual(s) who have been accessing the accounts since Thomas Rukavina’s death” (since both providers had indicated that his accounts had been accessed on “numerous” occasions since his death).

However, Judge Hornak’s parting notice was that, in the case of the Yahoo account, the employee had “repeatedly consented to Yahoo’s Terms of Service (‘TOS’), which included…a ‘No Right of Survivorship and Non-Transferability’ provision… [which] explains that any rights Thomas Rukavina had to the contents of his Yahoo account terminated upon his death.”  So, he would have been unlikely to order Yahoo to produce the emails under any circumstances.

Regardless, for the reasons noted above, Judge Hornak the plaintiff’s Motions to Compel against all three third parties.

So, what do you think?  Is it time to rewrite or update the 31 year old Stored Communications Act?  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.

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.

Other Production Parameters from a Provider’s Point of View: eDiscovery Replay

Sometimes, even blog editors need to take a vacation.  But, instead of “going dark” for the week, we thought we would re-cover some topics from the past, when we had a fraction of the readers we do now.  If it’s new to you, it’s still new, right?  Hope you enjoy!  We’ll return with new posts on Monday, August 7.

Yesterday, we began to discuss some of the production parameters that CloudNine collects from our clients in order to ensure that the production includes the correct documents in the required format.  But, wait – there’s more!  Let’s take a look at some other examples of information we collect from our clients.

  • Naming Structure for Files: Files that are produced follow some sort of naming convention and structure, typically either the original file name or some sort of naming convention that involves a unique identifying prefix followed by a zero-filled number (e.g., ABC000001.{file extension}).
  • Image Endorsements: Of course, images that are produced typically include a Bates number on each page that involves a unique identifying prefix followed by a zero-filled number (see example above), but endorsements can also include special endorsements such as a confidential stamp, so we provide a place on our questionnaire for clients to provide additional endorsement instructions for text and placement.
  • Metadata Fields and/or Tags to Be Produced: If the client is producing metadata, it’s obviously important to know the fields to be produced and the desired order. We also ask them to specify the delivery format – the typical formats are CSV (comma separated values, which can be loaded into Excel) or DAT (data) file.
  • Populate Production Numbers Back into Database: When clients produce documents, they typically want to track the production numbers, so we give them the option for us to create new fields in their CloudNine database with those production numbers.
  • Branded Images Back into Database: We also offer the same option for putting images branded with the Bates numbers and other endorsements back into the database, so that the client can easily reference the production number when looking at the page.
  • Load File: Often parties agree to produce load files to make it easy for opposing counsel to load the documents and metadata into their own eDiscovery platform, so we will create load files in several industry standard formats to support that requirement.
  • Delivery Method for Production: There are several options for delivering documents and data including CD or DVD, portable hard drive or electronically via File Transfer Protocol (FTP). Some projects, due to HIPAA requirements require special security handling, such as encrypted hard drives or Secured File Transfer Protocol (SFTP).
  • Where to Send Production: If the client selects CD, DVD or Portable Hard Drive, we require the Name, Street Address and Phone Number where the media is being delivered, if they select FTP, we need an FTP address (and any credentials, if necessary, to access it).
  • Name of Production Set: We request that each production set be uniquely named for later reference purposes, which is especially useful when there are multiple productions to track.
  • Other Instructions: Believe it or not, all of the parameters that we’ve identified over the past two days don’t cover every scenario, so we provide a place on the questionnaire to provide any other instructions. Those can range from special handling for other file types, extra copies requested, etc.

As you can see, we collect a lot of information from our clients at production time to ensure a proper production.  There are a lot of variables to consider, so it’s important to be consider those variables not just when producing, but WAY back at the beginning of the case, to ensure that you will be able to fulfill your discovery obligations to opposing counsel.  Hope this list of parameters was helpful.

So, what do you think?  How do you ensure proper productions?  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.

Production from a Provider’s Point of View: eDiscovery Replay

Sometimes, even blog editors need to take a vacation.  But, instead of “going dark” for the week, we thought we would re-cover some topics from the past, when we had a fraction of the readers we do now.  If it’s new to you, it’s still new, right?  Hope you enjoy!  We’ll return with new posts on Monday, August 7.

We sometimes forget that the end goal of the discovery process is production: to produce responsive electronically stored information (ESI) to opposing counsel.  But, do you realize how many parameters and potential permutations there can be to the production process?  Let’s take a look.

eDiscovery providers like (shameless plus warning!) CloudNine handle productions for our clients routinely, (in our case, often out of our own eDiscovery review application, but sometimes out of other applications as well).  When a client asks for a production, there are a series of questions to ask to ensure that the production includes the correct documents in the required format.  To ensure that and avoid potential confusion, we provide a questionnaire to the client to complete to define the parameters of that production.  Examples of information we collect from our clients:

  • Documents to be produced: Typically, we expect the client to identify a tag that was applied to the documents (especially when the documents are in CloudNine) to be used to identify the documents to be produced (e.g., To Be Produced, Responsive-Produce, etc.) and confirm the count of documents that are included in that tag. If the count doesn’t match the tag, we resolve with the client before proceeding.
  • Output Formats to Include: Productions can be native or image, may or may not include Optical Character Recognition (OCR) or extracted text and may or may not include metadata. It’s important to confirm the formats to be produced, which can include all or just some of the available formats.
  • Format of Images: If images are to be produced, we confirm whether they single or multi-page TIFF, or in Adobe PDF.
  • Format of OCR/Extracted Text Files: OCR files can also be produced either in single or multi-page files, so we enable the client to specify the format.
  • Handling of Excel Files: Because they are often not formatted for printing, Excel files often don’t image well and generate a high number of image pages. So, we provide options for producing a placeholder image along with the native Excel file (which is the default option), or TIFFing all or part of the Excel document.
  • Handing of AutoCad Files: Though less common, AutoCad DWG files can also be problematic to convert to TIFF, so we provide a placeholder and native option for this file type as well.
  • Handling of Redactions: If redactions are present, we confirm the production of documents with the redactions present. We also recommend that (and assist clients with) ensuring redacted text is removed from OCR files of the redacted images to ensure that there are no inadvertent disclosures of privileged or confidential information via those text files.

This is just the beginning of what we ask clients.  Tomorrow, we will cover other information we collect to ensure a proper production.

So, what do you think?  How do you ensure proper productions?  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.

Plaintiff Can Review Documents Deemed as Non-Responsive, But Has to Bear its Own Costs: eDiscovery Case Week

eDiscovery Case Week concludes today.  We covered four cases this week and, Wednesday, we covered our Wednesday webcast Key eDiscovery Case Law Review for First Half of 2017 (click here to check out the replay of that) as well.  Here’s the final case.  Just when you thought it was safe to go back in the courtroom!

In Nachurs Alpine Solutions, Corp. v. Banks, No. 15-CV-4015-LTS (N.D. Iowa July 7, 2017), Iowa Chief Magistrate Judge C. J. Williams granted in part and denied in part the plaintiff’s motion to compel ESI discovery, by ordering the defendants to produce all of the ESI documents it identified as unresponsive under an Attorneys Eyes Only label and that the plaintiff bear its own costs of reviewing the documents for the categories it believes may hold relevant documents.

Case Background

In this case regarding allegations of confidential, proprietary, and trade secret information taken by a former employee of the plaintiff to the defendant (his new employer), the Court entered an order regarding ESI after a dispute between the parties.  Using search terms approved in the Court’s order, the defendants searched their ESI for documents containing those search terms. The defendants then reviewed those documents for privilege, duplication, and relevance.

The defendants produced two batches of ESI, along with a privilege log reflecting documents withheld on privilege grounds.  The second production batch included placer-sheets stating “Non-Responsive File” marking 235 documents that the defendants believed were nonresponsive.  Through discussions, the plaintiff apparently discovered there were as many as 44,000 other documents that the defendants had withheld from the first batch as nonresponsive (defendants put the number at approximately 24,000 documents).

Attempts to resolve their differences on the first batch proved fruitless and, while the plaintiff identified 28 categories of documents it believed were properly withheld as non-responsive, it identified four categories of documents it believed were relevant and requested an order requiring defendants to produce all of the nonresponsive documents under the same conditions as those produced in the second batch (i.e., (1) Attorneys Eyes Only designation; and (2) no admission of relevance), with defendants paying attorneys’ fees for the cost of culling through the documents for responsive documents.  The defendants argued that plaintiff’s motion amounts to a request that defendants “perform a second, costly review of all of the 24,479 documents withheld as non-responsive.”

Judge’s Ruling

In considering the “countervailing factors”, Judge Williams found that “it would be disproportional to require defendants to go back through the documents to identify those that fall within the four categories plaintiff believes are most likely to generate relevant documents. Nor, even if it did, is it likely that plaintiff would not be any more satisfied or the Court more confident with the result.”  He also presumed that the defendants were “unwilling to comply with the alternative because plaintiff wants defendants to pay the attorneys’ fees associated with culling through the documents”, not because the defendants had something to hide.

As a result, Judge Williams ruled, as follows: “The Court finds the appropriate resolution to this dispute is: (1) defendants produce all of the ESI documents it identified as unresponsive under an Attorneys Eyes Only label; (2) that the production is not to be deemed as an admission by defendants that the documents are relevant; and (3) that plaintiff bear its own costs of reviewing the documents for the categories it believes may hold relevant documents. Should plaintiff discover relevant documents during this review which it believes were wrongfully withheld by defendants, then plaintiff can bring a motion for sanctions at that time to recover some or all of the attorneys’ fees associated with the search.”

So, what do you think?  Should parties be ordered to produce documents determined to be non-responsive absent a clear showing that they were misclassified?  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.

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 Limits Burden for Defendant to Search Loan Numbers, Splits Costs Between Parties: eDiscovery Case Law

In Phoenix Light SF Ltd. v. Deutsche Bank Nat’l Trust Co., No. 14cv10103 (JGK)(DF) (S.D.N.Y. June 5, 2017), New York Magistrate Judge Debra Freeman granted the plaintiffs’ motion to compel in part, ordering the defendant to search for 16,000 loan numbers proposed by the plaintiffs’ and ordered the parties to split the costs for performing the searches.

Case Background

In this case where the plaintiffs alleged that the defendant breached contractual and fiduciary obligations owed to the plaintiffs in connection with trusts for which the defendant served as trustee, the plaintiffs filed a motion to compel the defendant to run a search using approximately 245,000 individual loan numbers as discrete search terms or, at least run a sample search, using 16,000 selected loan numbers as search terms and produce documents responsive to the searched loan numbers.

To date, the defendant had only searched for only relevant trust names and the defendant’s own “trust identifiers”, explaining that its “routine” internal practice was to use these trust identifiers – not individual loan numbers – in communicating by email, both internally and externally, about loans within the trusts.  However, the plaintiffs provided the Court with four examples of email strings that were produced in discovery by the defendant, each of which included emails referencing individual loan numbers and not the trust names or identifiers on which the defendant had relied.

In arguing that the additional burden imposed by the search terms requested by the plaintiffs would be disproportionate to its likely yield, the defendant pointed to another case where a search of 72,000 individual loan numbers identified by the plaintiff returned 733,000 documents not previously produced, of which – based on its review of a sample of those documents – the defendant deemed 1.38 percent, at most, to be responsive to the plaintiffs discovery demands.

Judge’s Ruling

With regard to the defendant’s claim that its “routine” practice was to use trust identifiers for communication, Judge Freeman stated: “Plaintiffs have fairly demonstrated that, but for the happenstance that particular emails or attachments in each string included the trust name or identifier, the remainder of the relevant emails would not have been located by Defendant’s prior searches, and therefore would not have been produced. Further, Plaintiffs’ submitted evidence shows that Defendant’s assertion that it was not its practice to reference individual loan numbers in emails, without also referencing a trust name or identifier, is incorrect — or, at least, that Defendant’s employees did not utilize that practice consistently.”

As for the additional burden argument by the defendant, Judge Freeman observed that, in the other case, “the plaintiff apparently did not concur with Defendant that the responsiveness rate for the search performed was as low as Defendant represented” and that “this Court has no way to gauge the potential importance of the non-duplicative documents that were located through that search.”  As a result, Judge Freeman stated: “Plaintiffs should be given the opportunity to review at least the additional documents that a sample loan-number search would uncover and that Defendant would produce as responsive to document requests, and then to return to this Court if, in their view, the volume and/or significance of any newly produced documents warrants a further, more extensive search.”

Judge Freeman therefore ordered the defendant to perform a search for the 16,000 loan numbers, and to “produce to Plaintiff all responsive, non-privileged documents discovered through that search, unless already produced in discovery in identical form.”  Judge Freeman also noted that “counsel should confer in good faith” regarding the use of qualifiers to avoid “false hits”, and found it “reasonable” for the plaintiffs to share half of vendor costs to perform the searches, in the approximate amount of $11,000.

So, what do you think?  Does this level of burden dictate splitting of costs?  Or does it depend on the case?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, if you’re going to be in Houston on July 20, Women in eDiscovery (WiE) Houston Chapter, in partnership with South Texas College of Law, will be hosting the inaugural eDiscovery “Legal Technology Showcase & Conference” at South Texas College of Law in downtown Houston.  I will be participating as a panelist on the “State of the Industry” panel and my colleague, Karen, will be moderating the “Legal Operations and Litigation Support” panel.  Click here for more information about the conference, including how to register!

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

With Ample Evidence of Bad Faith, Court Sanctions Defendant for Failure to Produce Documents: eDiscovery Case Law

In CrossFit, Inc. v. Nat’l Strength and Conditioning Assn., No. 14cv1191 JLS (KSC) (S.D. Cal. May 26, 2017), 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.

Case Background

In this case between competing fitness training organizations where the plaintiff argued that the defendant published a false study regarding the plaintiff’s program and injury rates of its participants, the defendant filed a separate suit in state court against the plaintiff alleging trade libel, defamation, and unfair business practices.  The plaintiff received discovery during the state-court action that appeared to either directly respond to discovery or contradict assertions the defendant deponents had made in this case. The plaintiff then deposed the defendant’s Education Coordinator in the state-court case, during which he admitted that several of the statements in his federal-action declaration, submitted under penalty of perjury, were false.  The plaintiff then “ran several controlled searches in the state-court production” which “yielded hundreds of documents material to the issues in this action and that the defendant should have produced in response to the plaintiff’s discovery requests in this case.

Given that pretrial proceedings were only several weeks away at the time the plaintiff discovered these documents, the plaintiff simultaneously moved to continue the pretrial proceedings and for sanctions against the defendant, including terminating sanctions or, in the alternative, issue, evidentiary, and monetary sanctions.

Judge’s Ruling

Judge Sammartino, indicating that the documents withheld “are too numerous to comprehensively catalog”, provided several examples in her order, including various emails, a 2013 executive summary and “[d]ocuments that affirmatively demonstrate Mr. Clayton’s perjury”.  Judge Sammartino indicated that Rule 37 “authorizes the district court, in its discretion, to impose a wide range of sanctions” and that district courts have inherent power to “impose sanctions including, where appropriate, default or dismissal… However, because dismissal is such a severe remedy it should be imposed only in extreme circumstances, and “only where the violation is ‘due to willfulness, bad faith, or fault of the party.’”

Detailing several of the defendant’s transgressions, Judge Sammartino stated that “the Court agrees with Plaintiff that there is ample evidence of willfulness, bad faith, or fault.”  Judge Sammartino also noted that “nearly every factor weighs in favor of imposing terminating sanctions” and concluded that the Court “is well within its discretion to award terminating sanctions”, but declined to do so, opting for issue, evidentiary, and monetary sanctions instead.  However, before even getting to those, Judge Sammartino awarded these sanctions to address concerns regarding whether the defendant had produced all relevant documents:

“(1) Plaintiff SHALL commission a neutral forensic analysis of the the defendant’s servers and Defendant SHALL pay all costs relating to such forensic analysis;

(2) Defendant SHALL within fourteen days, under penalty of perjury, acquire declarations from all relevant the defendant personnel either (a) assuring or reaffirming that no documents relevant to this litigation have been destroyed or (b) admitting to any destruction;

(3) If at the conclusion of the neutral forensic evaluation it appears that documents have been destroyed, or that the discovery misconduct is substantially greater than the scope of which Plaintiff is currently aware, Plaintiff is GRANTED LEAVE TO RENEW its Motion for Terminating Sanctions and present the newly discovered evidence; and

(4) Defendant SHALL LODGE within fourteen days a copy of the document referenced in Plaintiff’s Sanction Motion Exhibit A so that the Court may conduct an in camera review of the document. Additionally, Plaintiff SHALL PROVIDE a copy of this Order to the neutral forensic analyst so that she may search for other instances of the document referenced in Exhibit A—or its deletion—and any surrounding context.”

The plaintiff supplied a list of thirty potential issue and adverse inference sanctions and Judge Sammartino awarded 17 of them in her order.  In addition, Judge Sammartino, while deducting some costs, awarded $73,550.83 in fees to the plaintiff in connection with its Sanctions Motion and ex parte Continuance.

So, what do you think?  Should the judge have gone ahead and ordered terminating sanctions based on the defendant’s actions to date?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will resume with new posts on Wednesday, July 5.  Happy Independence Day!

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

Legal Right Supersedes Physical Possession When It Comes to Control of ESI, Court Rules: eDiscovery Case Law

In First American Bankcard, Inc. v. Smart Business Technology, Inc., et. al., No. 15-638 (E.D. La., May 24, 2017), Louisiana Magistrate Judge Joseph C. Wilkinson, Jr. granted the Plaintiff’s Motion to Compel Discovery and for Reasonable Expenses against one of the defendants in “substantial part” with regard to interrogatories and requests for production of ESI within physical possession of the former owners of the defendant company, but denied “in limited part” with regard to the plaintiff’s request to take forensic imaging of the defendant company’s computer system, because “neither the relevance nor the proportionality of the forensic imaging sought by this request are readily apparent to the court”.

Case Background

In this case regarding damages the plaintiff allegedly incurred as a result of “deficient and defective” software design, manufacture and hosting of software products for use by plaintiff in processing cash advance and check cashing at casinos, the plaintiff served discovery requests, including document requests upon one defendant – Smart Business Technology, Inc. (Smart).  After determining Smart’s responses and objections to be lacking, the plaintiff filed a Motion to Compel and for Reasonable Expenses to obtain additional responses to certain interrogatories and certain document requests.

Judge’s Ruling

Judge Wilkinson granted the motion with regard to the plaintiff’s Interrogatories, overruling all objections and stating that “defendant has offered nothing sufficient to support or establish its objections on grounds of disproportionality and undue burden and expense outweighing the likely benefit of this highly relevant discovery.”

With regard to the defendant’s objections to producing requested ESI because it “does not have possession of the requested data” because it “is no longer a going concern” and, upon its business demise, the materials “remained in the hands of [its] former owners and top officers, co-defendants Fuente and Romero”, Judge Wilkinson stated that “[t]his argument is unpersuasive for two reasons… First, because defendant did not assert this argument in its Rule 34(b) written responses, the objection has been waived… Second, a party’s obligation to produce materials in the Rule 34 production and inspection process extends beyond mere possession. Defendant’s obligation is to produce such materials or electronically stored information (“ESI”) that are within its possession, custody or control…Rule 34’s definition of possession, custody, or control, includes more than actual possession or control of [documents]; it also contemplates a party’s legal right or practical ability to obtain [documents] from a [non-party] to the action.”

With regard to the plaintiff’s request to take forensic imaging of the defendant company’s computer system, Judge Wilkinson stated that the “motion is denied, at least at this time”, noting that “[u]nlike the discovery that is the subject of the interrogatories and requests for production addressed above, neither the relevance nor the proportionality of the forensic imaging sought by this request are readily apparent to the court.”

So, what do you think?  What does “possession, custody or control” mean to you?  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

In a Second Case, Judge Specifies Search Terms for Parties to Use: eDiscovery Case Law

In Abbott v. Wyoming Cty. Sheriff’s Office, No. 15-CV-531W (W.D.N.Y. May 16, 2017), New York Magistrate Judge Hugh B. Scott granted the plaintiff’s motion to compel and defendant’s cross-motion in part, ordering the defendant to perform additional production over a disputed time period, based on a list of search terms ordered by Judge Scott.

Case Background

In this case concerning allegations that the defendant deprived the plaintiff of promotions and work shifts or assignments that she was otherwise eligible to receive, for no reason other than her medical condition of epilepsy, the plaintiff (in February 2016) requested all emails sent and received by three key custodians “from September 2009 through the present, in native, electronic format, subject to an agreement of the parties regarding search terms.”  The defendant responded in September 2016, producing approximately 1,004 pages of responsive email messages and a privilege log containing 369 separate entries.

That request appeared to be fulfilled until the plaintiff’s deposition in February 2017, during which the plaintiff described discrimination and retaliation occurring through the present time. The description of ongoing improper conduct prompted the suspension of her deposition and different protests from each side. The defendant protested that the plaintiff did not describe ongoing conduct in her responses to its interrogatories, while the plaintiff protested that the defendant’s response to the plaintiff’s request did not include any email messages dated after February 2016. The pending cross-motions soon followed.

Judge’s Ruling

In looking at the complaint and the plaintiff’s second supplemental response, prepared after the start of the plaintiff’s deposition, Judge Scott noted that the plaintiff “mentions only two specific events that occurred after any produced email messages dated from February 2016”: “a denial of transport duties that occurred as recently as February 9, 2017; and an inability to apply for a sergeant’s position in July 2016”, along with a few written warnings.

Observing that the request “does not have to be revisited for any other topics”, Judge Scott stated that “[o]n at least one prior occasion, the Court has crafted discovery production based on specific search terms” – Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S (W.D.N.Y. Dec. 9, 2014), which we covered here.  As a result, Judge Scott ordered the defendant to “supplement its response to Request 15 by searching for email messages dated between March 1, 2016 and May 1, 2017 that contain Abbott’s name, or any name mentioned in her second supplemental response, plus any of the following search terms:

  • sergeant
  • cell phone
  • control room
  • booking
  • transport
  • court hours
  • late OR lateness
  • surveillance OR camera”

Judge Scott denied the plaintiff’s motion “to the extent that it seeks any other relief”, observing that “[e]ven with allegations of ongoing retaliation, defendants at some point need to have some finality about what they are facing.”

So, what do you think?  Should courts craft search terms for parties to use in litigation?  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

Despite Parties’ “Significant Animosity”, Court Orders Them to Meet and Confer: eDiscovery Case Law

In Elhannon LLC v. F.A. Bartlett Tree Expert Co., No. 2:14-cv-262 (D. Vermont, Apr. 18, 2017), Vermont District Judge William K. Sessions, III granted in part and denied in part the plaintiff’s renewed motion to compel, denied motions for sanction by each party against the other, and ordered the parties to engage in further meet-and-confer efforts to narrow their differences on the appropriate scope of discovery.

Case Background

In a breach of contract and consumer fraud dispute over pest infestation in the plaintiff’s tree nursery, the parties had numerous disputes over whether the defendant had met its discovery obligations.  In February 2016, the plaintiff filed a motion to compel several categories of documents, including printouts of all screens from the defendant’s Electronic Landscape Manager (“ELM”) program, internal correspondence and emails pertaining to the plaintiff, internal financial and other analysis documents pertaining to the plaintiff, compensation and personnel file materials for the two key defendant employees on the plaintiff’s contracts, and documents from the defendant’s other electronic systems.

In most categories, the defendant’s arguments primarily related to either a contention that all responsive documents had already been produced, the documents requested were either irrelevant or not specific to the plaintiff or were already produced via another electronic system.  As for the internal correspondence and emails, the plaintiff contended that the defendant’s email searches were “haphazard, overly narrow, devoid of proper guidance by counsel, and unreliable to say the least”, noting that several custodians were either not provided with search terms, or the terms were too limited or may have not performed any searches at all.  The defendant did acknowledge that it “recently recovered a number of emails previously not produced due to a gap in the technology used to perform its earlier email searches” and did supplement the production with those.

The plaintiff renewed its motion on the ground that recent deposition testimony demonstrates that Defendant’s prior representations to this Court asserting complete discovery responses were false.  In addition, both parties cross-moved for discovery sanctions, the plaintiff’s request was against the defendant failing to satisfy their discovery obligations and the defendant’s request was against the plaintiff for failing to meet and confer.

Judge’s Ruling

Judge Sessions noted that “the parties’ filings indicate that counsel have approached each other with significant animosity, and that substantial challenges exist to narrowing discovery disputes.”  Taking several of the document categories in consideration, Judge Sessions ordered the defendant to produce additional relevant, responsive data and documents from those sources.

With regard to the email search terms, Judge Sessions stated:

“Given the parties’ failure to engage in a comprehensive meet and confer or to reach agreement on the scope of email search terms, the Court will require the parties to do so now, rather than grant Elhannon’s motion on this ground. If necessary, the parties may request the Court to approve a list of appropriate email search terms after their meet-and-confer.”

Judge Sessions did not find that the plaintiff’s failure to meet and confer prior to filing the instant motion warranted the imposition of sanctions, nor did he find that “either party has provided sufficient reasons to justify sanctions against the other for failing to produce documents.”

So, what do you think?  Should parties face sanctions for failing to meet and confer?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. 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.