2015 eDiscovery Case Law Year in Review, Part 1

January 12, 2016

Did you think we forgot? No, we didn’t forget!

It’s time for our annual review of eDiscovery case law! Once again, we had more than our share of sanctions granted and denied, as well as disputes over production formats, admissibility of electronically stored information (ESI) and even a dispute regarding whether contract review attorneys can receive overtime pay! So, as we have done for the last four years, let’s take a look back at 2015!

Last year, eDiscoveryDaily published 89 posts related to eDiscovery case decisions and activities over the past year, covering a record 72 unique cases! We’ve covered over 300 unique cases since our inception back in 2010. And, believe it or not, we still didn’t cover every case that had eDiscovery impact. Sometimes, you want to cover other topics too.

Nonetheless, for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot). Perhaps you missed some of these? Now is your chance to catch up!

ADMISSIBILITY AND PROPORTIONALITY

As always, there are numerous disputes about data being produced and not being produced and whether the costs to do so are overly burdensome. Here are seven cases related to admissibility, the duty to preserve and produce ESI and the proportionality for preserving and producing that ESI:

Court Denies Plaintiff’s Motion to Compel the Defendant to Assist with Access to its Data: In SFP Works, LLC v. Buffalo Armory, Michigan Chief District Judge Gerald E. Rosen, agreeing with the defendant that the plaintiff’s motion was untimely, and that Plaintiff “unreasonably declined” several options proposed by the defendant for accessing the data that was produced to it by the defendant, denied the plaintiff’s motion to compel access to operational data.

Defendant’s Wife Ordered to Turn Over iPhone for Examination: In Brown Jordan International, Inc. et. al. v. Carmicle et. al., Kentucky District Judge Greg N. Stivers granted the plaintiffs’ expedited motion to compel the defendant’s wife to produce her iPhone for a forensic examination for information related to the case.

Defendant Compelled to Restore and Produce Emails from Backup Tapes: In United States ex rel Guardiola v. Renown Health, Nevada Magistrate Judge Valerie P. Cooke concluded that emails contained on backup tapes held by the defendants was not reasonably inaccessible due to undue cost and, even if the emails were reasonably inaccessible due to undue burden or undue cost, “good cause supports their discoverability”. Also, after an analysis of cost-shifting factors found only one factor favored cost-shifting of the production of emails to the relator, Judge Cooke ordered the defendant to bear the cost of restoration and production.

Court Resolves Dispute Over Scope of Databases and Searches to be Performed: In Willett, et al. v. Redflex Traffic Systems, Inc., New Mexico District Judge Lourdes A. Martinez ordered the defendants to produce a spreadsheet referred of file folders, with information for the files on their virtual server(s), the plaintiffs to provide the defendant with a reasonable list of search terms, limited to the relevant time frame, parties, and issues of this case and for the defendants to perform the searches specified by the plaintiffs within ten days of receiving the searches.

Court Rules that Automatically Generated Read Receipt is Not Hearsay: In Fox v. Leland Volunteer Fire/Rescue Dep’t Inc., North Carolina District Judge Louise W. Flanagan ruled that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay.

Court Has a “Beef” with Plaintiff’s Proportionality Argument: In Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, Kansas Magistrate Judge Teresa J. James granted the defendants’ motion to compel production of documents, overruling the plaintiffs’ objections to the discovery request in finding that “Plaintiff has not satisfied its burden to show that producing the requested documents would be unduly burdensome”.

Plaintiff Ordered to Image its Sources of ESI, Respond to Disputed Discovery Requests: In Electrified Discounters, Inc. v. MI Technologies, Inc. et al., Connecticut Magistrate Judge Donna F. Martinez granted the defendant’s motion to compel the plaintiff ‘s responses to discovery and ordered the plaintiff to “image its sources of electronically stored information (‘ESI’), including its hard drives and QuickBook files”.

APPLE V. SAMSUNG

We may be done with the past, but the past is not done with us. We couldn’t help but take a couple of looks back at Apple v. Samsung to see where the dispute stood (look at 2014, part 3 for more decisions related to this case). And, by the way, I’ve lost count how many times Samsung has been ordered, then received a stay, to pay the judgment amount.

Believe it or Not, Apple v. Samsung is Still Going Strong: eDiscovery Case Law: It appears that Samsung may, just may, finally have to pay some damages to Apple for patent infringement.

Samsung Doesn’t Have to Write a Check After All…Yet: Earlier, we revisited the Apple v. Samsung case, which we covered so much last year, it had its own category in our annual case law review. On September 18, U.S. District Court Judge Lucy Koh granted Apple’s motion for partial final judgment in the case that Apple lodged against Samsung in 2011, seemingly clearing the way for Apple to collect $548 million in damages from Samsung. But, on Friday, Samsung received an emergency stay on that order.

PRODUCTION FORMAT DISPUTES

It seems that there are more disputes regarding the form of production than ever. Here are the ten cases involving production format disputes:

Defendant Ordered to Produce Unredacted Versions of Agreements and Shipment Data: In Mervyn v. Atlas Van Lines, Inc. et. al., Illinois Magistrate Judge Susan E. Cox granted the plaintiff’s motion to compel the defendants to produce unredacted owner-operator agreements and shipment data, rejecting the defendants’ argument that producing both would be an undue burden.

Appellate Court Upholds Ruling to Require Production in Native Format: In the case In re State Farm Lloyds, the Texas Court of Appeals, finding that the relator failed to meet its burden to support its objection that it could not produce the discovery through reasonable efforts, denied the petition for writ of mandamus filed by the relator in which it contended that the trial court abused its discretion by ordering the production of discovery in native or near-native formats rather than the “reasonably usable” formats it proposed.

Court Denies Defendant’s Motion to Require Plaintiff to Re-Produce Data in a More Usable Format: In United States v. Meredith, Kentucky Senior District Judge Charles R. Simpson, III denied the defendant’s motion to compel production of electronically stored information (ESI) by the plaintiff in a usable format, agreeing that the plaintiff had fulfilled its discovery production obligation pertaining to the manner and format of the ESI.

Court Finds No Discovery Abuses by Defendant that Produced MSG Instead of TIFF Files: In Feist v. Paxfire, Inc., New York Magistrate Judge Ronald L. Ellis denied the plaintiff’s request for reimbursement of costs and expenses related to document production, finding that the plaintiff had made no showing of significant discovery abuses by the defendant, and had not demonstrated that the defendant engaged in intentionally burdensome production.

Court Orders Defendant to Produce Metadata for Previously Produced Emails: In Prezio Health, Inc. v. Schenk, et. al., after “a careful in camera review” of emails responsive to eighteen keyword search terms, Connecticut Magistrate Judge Joan Glazer Margolis ordered the defendant to produce metadata for eight specific emails which had already been produced to the plaintiff.

Plaintiff Ordered to Re-Produce Files in Native Format Because it Failed to Meet and Confer with Defendant: In Themis Bar Review, LLC v. Kaplan, Inc., California Magistrate Judge Barbara L. Major ordered the plaintiff pay for the cost to produce files in native format after the plaintiff originally produced unsearchable PDF images without metadata and failed to properly meet and confer with the defendant regarding production format as stipulated in the parties’ Joint Discovery Plan.

Defendant Compelled to Produce Employees’ Personal Data in EEOC Dispute: In EEOC v. DolgenCorp LLC d/b/a Dollar General, Illinois District Judge Andrea R. Wood granted the plaintiff’s motion to compel the defendant to produce electronically-stored information (“ESI”) containing personal information of the defendant’s conditional hires and complete versions of documents that the defendant previously produced with portions redacted due to purported lack of relevance. She also ordered the plaintiff to produce documents previously withheld due to privilege for an in camera review.

Oh, Thank Heaven! Court Orders 7-Eleven to Produce Metadata: In Younes, et al. v. 7-Eleven, Inc., New Jersey Magistrate Judge Joel Schneider granted the plaintiffs’ motions to compel the production of metadata for selected groups of documents, denying the defendant’s cross-motions to bar the production of metadata.

You Don’t Get a Second Chance to Make a First Document Production Request: In Allison v. Clos-ette Too, LLC, New York Magistrate Judge James C. Francis, among other motions considered, denied the plaintiff’s motion to compel the defendants’ production of electronically stored information (ESI) in native format after the plaintiff had previously requested (and received) ESI from the defendants without specifying the desired document format.

Court Untangles Form of Production Dispute with Curling Iron Manufacturer: In Wilson v. Conair Corp., California Magistrate Judge Stanley A. Boone granted in part the plaintiff’s motion to compel production, by requiring the defendant to produce further ESI in native format if feasible or TIFF format with the associated metadata, as well as to produce associated metadata for its prior production if it had not already done so. The court later continued to intervene in discovery disputes between the two parties here.

We’re just getting started! Tomorrow, we will cover cases related to disputes about discovery, eDiscovery cost reimbursement and issues related to privilege and confidentiality assertions. Stay tuned!

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

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