Case Law

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

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

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

PROPORTIONALITY vs. RELEVANCY vs. PRIVACY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As we noted Monday and yesterday, eDiscovery Daily published 65 posts related to eDiscovery case decisions and activities over the past year, covering 56 unique cases!  Yesterday, we looked back at cases related to mobile device discovery, technology assisted review, the use of sampling to settle disputes, objections to production requests, an update on an interesting dispute between an eDiscovery provider and their former sales people and the final(?) post regarding the ubiquitous Apple v. Samsung case.  Today, let’s take a look back at cases related to sanctions and spoliation.

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

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

SPOLIATION / SANCTIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As we noted yesterday, eDiscovery Daily published 65 posts related to eDiscovery case decisions and activities over the past year, covering 56 unique cases!  Yesterday, we looked back at cases related to possession, custody and control, privilege disputes and form of production disputes.  Today, let’s take a look back at cases related to mobile device discovery, technology assisted review, the use of sampling to settle disputes, objections to production requests, an update on an interesting dispute between an eDiscovery provider and their former sales people and the final(?) post regarding the ubiquitous Apple v. Samsung case.

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

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

MOBILE DEVICE DISCOVERY

Discovery involving mobile devices is increasing, so case law related to mobile device discovery is increasing too, including a landmark SCOTUS ruling regarding the need for a search warrant to obtain physical location data of a subject’s cell phone.  Despite that ruling, not all cases involving physical location data turned out the same way.  Here are six cases related to discovery of mobile devices:

Fourth Circuit Rules that Warrantless Cell Phone is Warranted: According to Sharon Nelson’s terrific Ride the Lightning blog (4th Circuit Says Border Search of Phones Requires Individualized Suspicion (But Not a Warrant)), on May 9th, the Fourth Circuit Court of Appeals issued a decision in US v. Kolsuz, ruling that in light of the immense privacy concerns, forensic searches of electronic devices seized at the border must be justified by individualized suspicion, or some reason to believe that a particular traveler had committed a crime.  But not a warrant.

Plaintiff Argument for Failure to Produce Cell Phone Data in Wife’s Name is “Unpersuasive”: In Ortiz v. Amazon.com LLC, et al, California Magistrate Judge Maria-Elena James ordered the plaintiff, who failed to produce court-ordered cell phone records because the account was in his wife’s name and refused to provide her information, to provide defendant Golden State with his cell phone account holder’s name and address so that defendant could subpoena the cell phone records from her.  Judge James also ordered the plaintiff to appear for a deposition in San Francisco, as originally scheduled, instead of Los Angeles (where the plaintiff had moved).

SCOTUS Says Warrantless Access of Cell Phone Locations Violates Fourth Amendment: In Carpenter v. U.S., the United States Supreme Court (SCOTUS) held, in a 5–4 decision authored by Chief Justice Roberts, that the government violates the Fourth Amendment to the United States Constitution by accessing historical records containing the physical locations of cellphones without a search warrant.

Despite Carpenter, This Defendant’s Cell Site Location Information is Ruled Admissible: In United States v. Pleasant, Pennsylvania District Judge Gerald Austin McHugh ruled that the defendant’s motion to suppress historical cell-site location information associated with his cellular telephone lacked merit, despite the Supreme Court’s recent decision in Carpenter v. United States, because the agents proceeded “by means of a court order issued under a federal statute that had repeatedly withstood Fourth Amendment scrutiny…in good faith under then existing law”.

After Woman’s iPhone is Seized and She Sues, Homeland Security Agrees to Delete Her Data: In the case Lazoja v. Nielsen, an American Muslim woman filed suit and asked a federal judge to compel border officials to erase data copied from her iPhone.  Now, she has settled her lawsuit with the government because federal authorities have now agreed to delete the seized data.

No New Trial for Defendant After Carpenter Ruling Because of “Good-Faith” Exception: In U.S. v. Leyva, Michigan District Judge Mark A. Goldsmith, while acknowledging that the ruling in Carpenter v. United States (which held that the government must obtain a warrant before acquiring cell site location information (“CSLI”)) “applies retroactively” to the defendant’s case, ruled that “the question of whether a constitutional right is retroactive is distinct from the question of whether an individual is entitled to a remedy from any constitutional violation”.  Citing the “good-faith” exception, where law enforcement acts in good faith in obtaining evidence that is ultimately found to have been obtained in violation of an individual’s constitutional rights, Judge Goldsmith denied the defendant’s motion for a new trial on the basis of Carpenter.

TECHNOLOGY ASSISTED REVIEW

Talk about a mixed bag – we have one case that provides a terrific protocol on how TAR (or any search) should be conducted and another case that shows just how wrong a TAR process can go.  And, a third that isn’t even a TAR case, but illustrates how often lawyers negotiate on complex search terms instead of using TAR.  Here are three cases that relate to the use of TAR in eDiscovery:

Don’t Be “Chicken”! Consider Having a Good Protocol for Handling eDiscovery: In the In re Broiler Chicken Antitrust Litigation, Illinois Magistrate Judge Jeffrey Gilbert appointed a special master (noted Technology Assisted Review expert Maura Grossman) to help the parties resolve eDiscovery disputes.  Judge Gilbert and Special Master Grossman issued a very detailed procedure (Order Regarding Search Methodology for Electronically Stored Information) for how the parties were to conduct TAR, including search, validation and document sourcing approaches, split into three primary sections: (1) how the parties will act, (2) what search technologies will be used, and (3) an outline of a document review validation protocol.  This case also had a ruling involving a defendant’s motion for protective order in the case.

Plaintiffs Granted Discovery Extension Due to Defendant’s TAR Review Glitch: In the case In Re Domestic Airline Travel Antitrust Litigation, District of Columbia District Judge Colleen Kollar-Kotelly granted the Plaintiffs’ Motion for an Extension of Fact Discovery Deadlines (over the defendants’ objections) for six months, finding that defendant “United’s production of core documents that varied greatly from the control set in terms of the applicable standards for recall and precision and included a much larger number of non-responsive documents that was anticipated” (United’s core production of 3.5 million documents contained only 600,000 documents that were responsive).

Court Plays Referee in Search Term Dispute Between Parties: In Digital Ally, Inc. v. Taser Int’l, Inc., Kansas Magistrate Judge Teresa J. James granted in part and denied in part the defendant’s Motion to Compel ESI Discovery, sustaining in part the plaintiff’s overbreadth and relevance objections to specific defendant ESI Requests by providing a compromised scope between the defendant’s proposed searches (deemed to be overbroad) and the plaintiff’s proposed searches (most of which were deemed to be too narrow).

USING SAMPLING TO SETTLE DISPUTES

Here’s a new category – rulings by courts to order parties to conduct sampling to settle production disputes.  Now, that’s some progressive thinking!  Here are two such cases:

Court Sides with Plaintiff’s Proposal, Orders Random Sample of the Null Set: In City of Rockford v. Mallinckrodt ARD Inc., Illinois Magistrate Judge Iain D. Johnston adopted the parties’ proposed order establishing the production protocol for ESI with the inclusion of the plaintiffs’ proposal that a random sample of the null set will occur after the production and that any responsive documents found as a result of that process will be produced.

Court Orders Defendants to Sample Disputed Documents to Help Settle Dispute: In Updateme Inc. v. Axel Springer SE, California Magistrate Judge Laurel Beeler ordered the defendants to review a random sample of unreviewed documents in dispute and produce any responsive documents reviewed (along with a privilege log, if applicable) and report on the number of documents and families reviewed and the rate of responsiveness within one week.

OBJECTIONS TO PRODUCTION REQUESTS

It was bound to happen sooner or later – a party using boilerplate objections having those objections waived!  Here is that case:

Court Rules that Defendant’s Boilerplate Objections Results in Waiver of Those Objections: In Halleen v. Belk, Inc., Texas District Judge Amos L. Mazzant, III granted the plaintiffs’ motions in part, ruling that the defendant had waived its objections to the plaintiffs’ RFPs and Interrogatories by including “subject to” or boilerplate language in its responses and also granted the plaintiffs’ request for ESI for identified corporate custodians and 30(b)(6) witnesses.

ALSO…

If you remember the dispute between an eDiscovery provider and its former sales agents which called into question the scope of non-compete agreements that we covered last year, then you’ll be interested in this Second Circuit ruling on the case.

AND…

A moment of silence to commemorate the final settlement of the Apple v. Samsung case – our most written about case ever on this blog.  Not since King Kong vs. Godzilla have two mega-monsters slugged it out like this.  And, they’ll both live to fight again.

We’re only halfway done!  Tomorrow, we will cover cases related to sanctions and spoliation (believe it or not, for the first time ever, not our category with the most cases!).  Stay tuned!

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

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

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

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

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

It’s that time of year again!  Time for our annual review of eDiscovery case law!  This is our eighth(!) annual review of cases that we covered on the eDiscovery Daily blog over the past year.  As always, we had a number of interesting cases related to various eDiscovery topics.  So, as we have done for the last seven(!) years, let’s take a look back at 2018!

Last year, eDiscoveryDaily published 65 posts related to eDiscovery case decisions and activities over the past year, covering 56 unique cases!  Believe it or not, that’s a down year for us.  We’ve had 656 lifetime case law related posts, covering exactly 502 unique cases since our inception back in 2010.  That’s a lotta law!  :o)

As always 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!

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

And, here we go…

POSSESSION, CUSTODY & CONTROL

To get the data produced, you first need to show that the producing party has possession, custody and control of that data.  Sometimes, that’s easier said than done – even when you’re trying to prove that Twitter has legal custody and control of its own employees’ direct messages.  Here are two cases related to possession, custody and control disputes:

Court Denies Request for Production of Forensic Image: In Apex Colors, Inc. v. Chemworld Int’l Ltd., Inc., Magistrate Judge Paul R. Cherry, finding (among other things) that the defendants “have not met their burden of showing that” the plaintiff had control of the data, denied the defendants’ motion to compel the plaintiff to produce supplemental documents, including a forensically imaged hard drive.

Court Declines to Compel Defendant to Produce Direct Messages Between its Employees: In Shenwick v. Twitter, Inc., California Magistrate Judge Sallie Kim ruled on several discovery disputes between the parties, including denial of a request by the plaintiffs to order the defendants to produce protected direct messages of individual custodians who are not parties.

PRIVILEGE DISPUTES

As usual, there are disputes about the privilege status of documents and whether inadvertently disclosed materials can be subject to clawback.  Here are two cases related to privilege disputes:

Court Denies Plaintiff Request for “Quick Peek” to Privilege Log, Proposing Special Master Review Instead: In Winfield v. City of New York, New York Magistrate Judge Katherine H. Parker, ruling on a debate of what constitutes privileged ESI, denied the plaintiff’s request for a “quick peek” at 3,300 documents listed on the defendant’s privilege log, opting to propose instead for a special master to conduct a privilege review of those documents.

Court Rules “No Harm, No Foul” in Allowing Clawback After Protective Order Deadline: In the case In re Abilify (Aripiprazole) Prod. Liab. Litig., Florida Magistrate Judge Gary R. Jones denied the plaintiff’s Disclosure Motion regarding two documents that defendant Bristol-Myers Squibb (BMS) claimed were privileged and inadvertently disclosed, stating that “[a]lthough BMS might not have followed the precise terms of the Protective Order”, “the one-day delay in sending the privilege log can charitably be described as a situation where the expression ‘no harm, no foul’ applies.”

FORM OF PRODUCTION

As more lawyers learn about the benefits of producing native files with metadata while others stick to more traditional image-based production formats, disputes are bound to rise.  Even some judges have opinions on the subject.   Here are ten cases related to form of production disputes:

Court Orders Plaintiff to Reproduce ESI and Produce Search Term List As Agreed: In Youngevity Int’l Corp., et al. v. Smith, et al., California Magistrate Judge Jill L. Burkhardt, granted the defendants’ motion to compel proper productions against the plaintiffs and ordered the plaintiffs to either provide its search hit list to the plaintiffs, meet and confer on the results and screen the results for responsiveness and privilege OR produce 700,000 additional responsive documents and pay for the defendants to conduct Technology Assisted Review (TAR) on the results.  Judge Burkhardt also ordered the plaintiffs to designate “only qualifying documents” as confidential or Attorney’s Eyes Only (AEO) and to pay for the reasonable expenses, including attorney’s fees, of bringing the motion.

Nobody Doesn’t Like Terminating Sanctions for Fabrication of Text Messages: In Lee v. Trees, Inc., Oregon Magistrate Judge John V. Acosta granted the defendants’ motion for terminating sanctions where the plaintiff was found to have manufactured text messages to support her claims of sexual harassment, retaliation, and wrongful termination.

Court Grants Key Parts of Motion to Compel Against Safeway: In U.S. ex rel. Proctor v. Safeway, Inc., Illinois Magistrate Judge Tom Schanzle-Haskins allowed the Relator’s motion to compel in part, ordering the defendant to conduct and complete a TAR process on 575,000 issue files previously produced based on key number search alone and also ordering the defendant to produce PDX pharmacy transaction data (PDX Data) – all by March 16.  However, Judge Schanzle-Haskins declined to order the defendant to produce the issue files as Image Files since it had previously produced them in native form and instructions only directed the defendant to produce image files if it created a litigation database.

Defendant Sanctioned for “Deliberately” Altering a Skype Communication: In GoPro, Inc. v. 360Heros, Inc., California District Judge Susan Illston denied the plaintiff’s motion for summary judgment and denied the defendant’s motion in limine to exclude the testimony of the plaintiff’s forensic analysis expert, but granted (in part) the plaintiff’s motion for partial terminating sanctions against the defendant for forging evidence in two Skype conversations, opting for an adverse inference instruction sanction and reimbursement of expenses related to forensic analysis and testimony instead of the terminating sanctions sought.

Metadata from Photos Leads to Dismissal of Case Against New York City: In Lawrence v. City of New York, et al., New York Senior District Judge William H. Pauley, III granted in part and denied in part the defendants’ motion for sanctions, ruling to dismiss the case against the defendants, but denying the motion for sanctions against the plaintiff’s counsel and denying the motion for reimbursement of attorney’s fees, stating “an award of attorney’s fees ‘would be a hollow victory … as it would likely be uncollectible.’”

Court Denies Plaintiff’s Request for Native Re-Production by Defendant: In Baker v. Santa Clara Univ., California Magistrate Judge Virginia K. Demarchi denied, without prejudice, the plaintiff’s request for an order compelling production of electronically stored documents in native format, finding that the plaintiff “does not have a compelling reason for demanding that SCU (Santa Clara University) re-produce its entire responsive document production in native format simply because she might find something missing.”

Court Denies Party’s Request to Produce in Native Format Instead of TIFF: In the case IN RE SYNGENTA AG MIR 162 CORN LITIGATION, Kansas Magistrate Judge James P. O’Hara, stating that “there is no dispute that documents in TIFF format are easier to work with and enable depositions and court proceedings to run more smoothly”, denied the request of party Louis Dreyfus Company Grains Merchandising LLC (LDC) to relieve it from the production requirements of the case’s ESI Protocol Order to produce electronically stored information (ESI) in TIFF image file format and instead allow LDC to produce in native format.

Court Rejects Plaintiffs’ “Mindlessly Deficient” Objections to Native Format Production: In McDonnel Grp., LLC v. Starr Surplus Lines Ins. Co. et al., Louisiana Magistrate Judge Joseph C. Wilkinson, Jr. granted in part and denied in part the defendants’ motion to compel, granting the defendants’ requests for the plaintiffs to produce construction schedules in native format, to identify responsive materials already produced to other specified defendants’ requests and to provide a privilege log for any documents withheld based on privilege to those requests.  Judge Wilkinson denied the defendants’ request for attorney’s fees and other expenses incurred in connection with the defendants’ motion.

Court Rules on Dispute over Native File Format Production and Metadata: In Metlife Inv’rs. USA Ins. Co. v. Lindsey, Indiana Magistrate Judge John E. Martin granted the motion of the defendants/counter plaintiffs (defendants) to compel the plaintiff/counter-defendant (plaintiff) to produce all responsive documents in the form in which they are maintained in the usual course of business (i.e., native files with metadata) and also ordered the defendants to file an itemization of costs and fees, including attorney’s fees, incurred in making the Motion to Compel.

Court Orders Defendants to Resubmit Production of “Inferior” Quality Documents: In Dunne v. Resource Converting, LLC et al., Missouri Magistrate Judge David D. Nocel granted the plaintiff’s motion to compel and to enforce, ordering the defendants to “resubmit to plaintiff the subject low-quality documents in a non-blurry, legible form digitally accessible to plaintiff, and with the same bates-stamp numbers as the original production”.  Judge Nocel also ordered the defendants to pay plaintiff’s attorneys’ fees and expenses associated with his motion to compel, but decided that the plaintiff’s request for an independent forensic expert to preside over the technical discovery requests and responses was not warranted at this time.

We’re just getting started!  Tomorrow, we will cover cases related to mobile device discovery, technology assisted review, the use of sampling to settle disputes, objections to production requests, an update on an interesting dispute between an eDiscovery provider and their former sales people and we (finally) say goodbye to the ubiquitous Apple v. Samsung case.  Stay tuned!

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

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

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

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

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

2018 was another notable year for eDiscovery case law with several significant rulings that stand to impact eDiscovery practices and the admissibility of evidence.  How can these key case law decisions affect discovery within your organization?  Here’s a webcast that will discuss key case law rulings from last year and their impact on this year.

Wednesday, January 23rd at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Important eDiscovery Case Law Decisions of 2018 and Their Impact on 2019. In this one-hour webcast that’s CLE-approved in selected states, we will cover key 2018 case law decisions covered by the eDiscovery Daily blog and what the legal profession can learn from those rulings. Topics include:

• Technology Assisted Review best practices and trends
• The use of sampling to settle disputes
• Admissibility vs. proportionality and privacy disputes
• Form of production disputes and the issues involved
• Key case rulings on discoverability of mobile device data
• Privilege disputes and clawback requests
• Impact of rules changes on boilerplate objections
• The state of sanctions three years after the 2015 Fed Rules updates

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how key case law rulings from last year can impact this year, this webcast is for you!

So, what do you think?  Are you big on case law and like to second guess judicial decisions?  Sure you do(!), so please join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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