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2012 eDiscovery Year in Review: eDiscovery Case Law, Part 4

As we noted the past three days, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to admissibility and the duty to preserve and produce electronically stored information (ESI).  Today, let’s take a look back at cases related to sanctions and spoliation.

We grouped those cases into common subject themes and have reviewed them over the past few posts, ending today.  Perhaps you missed some of these?  Now is your chance to catch up!

SPOLIATION / SANCTIONS

All hail the returning champion!  I’ll bet that you won’t be surprised that, once again, the topic with the largest number of case law decisions related to eDiscovery are those related to sanctions and spoliation issues.  Of the 62 cases we covered this past year, almost a third of them (20 total cases) related to sanctions and spoliation issues.  We found them in a variety of sources, even The Hollywood Reporter!  Here they are.  And, as you’ll see by the first case (and a few others), sanctions requested are not always granted – at least not yet.

Sanctions for Violating Motion to Compel Production? Not Yet.  In Fidelity National Title Insurance Co. v. Captiva Lake Investments, LLC, where a party’s “conduct [did not] rise[ ] to the level of a willful violation of the order compelling production” because it was continually working toward the proper production of documents requested by its adversary, a court concluded that the adversary’s motion for sanctions was premature.

“Rap Weasel” Forced to Honor $1 Million Reward Offered via YouTube.  It isn’t every day that eDiscoveryDaily has reason to reference The Hollywood Reporter in a story about eDiscovery case law, but even celebrities have eDiscovery preservation obligations during litigation. In Augstein v. Leslie, New York District Judge Harold Baer imposed an adverse inference sanction against hip hop and R&B artist Ryan Leslie for “negligent destruction” of a hard drive returned to him by the plaintiff after a $1 million reward was offered via YouTube. On November 28, a jury ordered him to pay the $1 million reward to the plaintiff.

Plaintiff Hammered with Case Dismissal for “Egregious” Discovery Violations.  Apparently, destroying your first computer with a sledgehammer and using Evidence Eliminator and CCleaner on your second computer (when you have a duty to preserve both) are not considered to be best practices for preservation. Who knew? 😉

Rambus’ “Shred Days” Result in Sanctions Yet Again.  In Hynix Semiconductor Inc. v. Rambus, Inc., California District Judge Ronald Whyte used his discretion to fashion an appropriate fact-specific sanctions award after it found a party willfully destroyed evidence despite reasonably foreseeable litigation, it destroyed such evidence in bad faith, and the opposing party suffered prejudice.

Defendant Ordered to Retain Outside Vendor, Monetary Sanction Awarded.  In Carrillo v. Schneider Logistics, Inc., California Magistrate Judge David Bristow ordered the defendant to “retain, at its expense, an outside vendor, to be jointly selected by the parties, to collect electronically stored information and email correspondence”. The defendant was ordered to produce all surveillance videotapes responsive to plaintiffs’ discovery requests and monetary sanctions were awarded for plaintiff’s attorney fees and costs incurred as a result of the defendant’s discovery violations.

Government Document Productions Can Be Like Water Torture.  In Botell v. United States, Magistrate Judge Gregory Hollows noted that the US Government’s “document production performance in these proceedings has been akin to a drop-by-drop water torture” and ordered a preclusion order prohibiting the US Government “from presenting evidence in its case that had been requested by plaintiffs in the Requests for Production, but which has not been produced” as of the date of the order. The US was also still required to produce the documents, whether they planned to use them or not. Judge Hollows also noted that the “Plaintiff has not waived any motion to seek further sanctions regarding non-production of documents, or spoliation of documents.”

Defendant Appeals Sanctions, Only to See Sanction Amount Raised on Appeal.  In Multifeeder Tech. Inc. v. British Confectionery Co. Ltd., the defendant had been previously sanctioned $500,000 ($475,000 to the plaintiff and $25,000 to the court) and held in contempt of court by the magistrate judge for spoliation, who also recommended an adverse inference instruction be issued at trial. The defendant appealed to the district court, where Minnesota District Judge John Tunheim increased the award to the plaintiff to $600,000. Oops!

eDiscovery Sanctions Can Happen in Police Brutality Cases Too.  As reported in the Seattle Times, Pierce County (Washington) Superior Court Judge Stephanie Arend issued a $300,000 sanction against King County for failure to produce key documents illustrating the previous troubling behavior of a sheriff deputy who tackled Christopher Sean Harris and left him permanently brain-damaged. Judge Arend also indicated that the county would be liable for attorneys’ fees and possibly compensatory damages for the Harris family. This after King County had settled with the Harris family for $10 million in January 2011 during a civil trial in King County Superior Court.

When is a Billion Dollars Not Enough?  When it’s Apple v. Samsung, of course! According to the Huffington Post, Apple Inc. requested a court order for a permanent U.S. sales ban on Samsung Electronics products found to have violated its patents along with additional damages of $707 million on top of the $1.05 billion dollar verdict won by Apple last month, already one of the largest intellectual-property awards on record.

No Sanctions For Spoliation With No Bad Faith.  In Sherman v. Rinchem Co., the plaintiff in a defamation case against his former employer appealed the district court’s denial of both his summary judgment motion and request for an adverse inference jury instruction. The district court had decided the case under Minnesota law, which “provides that ‘even when a breach of the duty to preserve evidence is not done in bad faith, the district court must attempt to remedy any prejudice that occurs as a result of the destruction of the evidence.’” In contrast, as the Eighth Circuit pointed out, in this case where the parties had diversity, and a question remained as to whether state or federal spoliation laws were applicable, federal law requires “a finding of intentional destruction indicating a desire to suppress the truth” in order to impose sanctions.

Pension Committee Precedent Takes One on the Chin.  In Chin v. Port Authority of New York and New Jersey, the Second Circuit Court of Appeals ruled it was within a district court’s discretion not to impose sanctions against a party for its failure to institute a litigation hold.

More Sanctions for Fry’s Electronics.  In E.E.O.C. v Fry’s Electronics, Inc., Washington District Judge Robert S. Lasnik ordered several sanctions against the defendant in this sexual harassment case (including ordering the defendant to pay $100,000 in monetary sanctions and ordering that certain evidence be considered presumptively admissible at trial), but stopped short of entering a default judgment against the defendant. This ruling came after having previously ordered sanctions against the defendant less than two months earlier.

No Sanctions When You Can’t Prove Evidence Was Destroyed.  In Omogbehin v. Cino, the plaintiff claimed that the District Court erred in denying his motion for spoliation sanctions and appealed to the US Third Circuit Court of Appeals, but lost as the appellate court upheld the rulings by the district judge and magistrate judge.

“Naked” Assertions of Spoliation Are Not Enough to Grant Spoliation Claims.  In Grabenstein v. Arrow Electronics, Inc., Colorado Magistrate Judge Kristen L. Mix denied the plaintiff’s motion for sanctions, finding that their claims of spoliation were based on “naked” assertions that relevant eMails must exist even though the plaintiff could not demonstrate that such other eMails do or did exist. The motion was also denied because the plaintiff could not establish when the defendant had deleted certain eMail messages, thereby failing to prove claims that the defendant violated its duty to preserve electronic evidence. Judge Mix noted that sanctions are not justified when documents are destroyed in good faith pursuant to a reasonable records-retention policy, if that’s prior to the duty to preserve such documents.

Spoliation of Data Can Lead to Your Case Being Dismissed.  In In 915 Broadway Associates LLC v. Paul, Hastings, Janofsky & Walker, LLP, the New York Supreme Court imposed the severest of sanctions against the plaintiffs for spoliation of evidence – dismissal of their $20 million case.

Better Late Than Never? Not With Discovery.  In Techsavies, LLC v. WFDA Mktg., Inc., Magistrate Judge Bernard Zimmerman of the United States District Court for the District of Northern California sanctioned the defendant for repeated failures to produce responsive documents in a timely manner because of their failure to identify relevant data sources in preparing its initial disclosures.

The Zubulake Rules of Civil Procedure.  As noted in Law Technology News, the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, in two case rulings within a month’s time, one of which resulted in sanctions against one of the parties for spoliation of data.

eDiscovery Violations Leave Delta Holding the Bag.  In the case In re Delta/AirTran Baggage Fee Antitrust Litig., U.S. District Judge Timothy Batten ordered Delta to pay plaintiff attorney’s fees and costs for eDiscovery issues in consolidated antitrust cases claiming Delta and AirTran Holdings, Inc. conspired to charge customers $15 to check their first bag. Noting that there was a “huge hole” in Delta’s eDiscovery process, Judge Batten reopened discovery based on defendants’ untimely production of records and indications that there was overwriting of backup tapes, inconsistencies in deposition testimony and documents, and neglect in searching and producing documents from hard drives.

Burn Your Computer and the Court Will Burn You.  In Evans v. Mobile Cnty. Health Dept., Alabama Magistrate Judge William Cassady granted a motion for sanctions, including an adverse inference instruction, where the plaintiff had burned and destroyed her computer that she used during the time she claimed she was harassed.

Appeals Court Decides Spoliation Finding For Not Producing Originals is Bull.  In Bull v. UPS Inc., the Third Circuit court conceded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information”. However, it found that in this case, the District Court erred in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2012 eDiscovery Year in Review: eDiscovery Case Law, Part 3

As we noted the past two days, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to social media and the first cases approving technology assisted review.  Today, let’s take a look back at cases related to admissibility and the duty to preserve and produce electronically stored information (ESI).

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!

ADMISSIBILITY AND DUTY TO PRESERVE AND PRODUCE

Admissibility of ESI, and the duty to preserve and produce it, is more at issue than ever.  Whether the issue is whether certain emails should be considered privileged, whether cloning of computer files is acceptable or whether text messages require substantiation of authorship, parties are disputing what ESI should actually be admissible in litigation.  Parties are also disputing when and where litigation holds are required and whether collection and search practices are acceptable.  In short, there are numerous disputes about data being produced and not being produced.  Here are (a whopping) sixteen cases related to admissibility and the duty to preserve and produce ESI:

Emails Between Husband and Wife Are Not Privileged, If Sent from Work Computer.  In United States v. Hamilton, the Fourth Circuit found that the district court had not abused its discretion in finding that e-mails between the defendant and his wife did not merit marital privilege protection because the defendant had used his office computer and his work e-mail account to send and receive the communications and because he had not taken steps to protect the e-mails in question, even after his employer instituted a policy permitting inspection of e-mails and he was on notice of the policy.

Defendant Had Duty to Preserve Despite No Physical Possession of Documents.  In Haskins v. First American Title Insurance Co., a court found that an insurance company had a duty to issue a litigation hold to its independent title agents because litigation was reasonably foreseeable and the duty to preserve extends to third parties, as long as the documents are “within a party’s possession, custody, or control.” Although it did not have physical possession, the insurance company controlled the agents’ documents because it had “‘the legal right or ability to obtain the documents from [the agents] upon demand.’”

Defendant Compelled to Produce Additional Discovery to Plaintiff.  In Freeman v. Dal-Tile Corp., a case alleging harassment and discrimination, among other claims, against her former employer Dal-Tile Corporation, the plaintiff brought a motion to compel, asserting that some of the defendant’s discovery responses related to its search for ESI were deficient.

Defendant Claiming Not Reasonably Accessible Data Has Some ‘Splaining To Do.  In Murray v. Coleman, the plaintiff alleged harassment and retaliation in connection with his employment with the New York State Department of Correctional Services (DOCS). This discovery dispute arose when the plaintiff requested access to certain electronic records, alleging that the defendants withheld them.

Cloning of Computer Files: When There’s a Will, There’s a Way.  In Matter of Tilimbo, a court held it was permissible to order cloning of computer files where doing so did not place an unreasonable burden on a nonparty, appropriate steps were taken to protect any privileged information, and the nonparty had not previously produced the requested information in hard copy.

Citing Rule 26(g), Court Orders Plaintiff’s Counsel to Disclose Search Strategy.  Our 501st post on the blog addresses S2 Automation LLC v. Micron Technology, where New Mexico District Judge James Browning ordered the plaintiff’s attorneys to disclose the search strategy their client used to identify responsive documents, based on Federal Rule 26(g) that requires attorneys to sign discovery responses and certify that they are “complete and correct.”

Judge Scheindlin Says “No” to Self-Collection, “Yes” to Predictive Coding.  When most people think of the horrors of Friday the 13th, they think of Jason Voorhees. When US Immigration and Customs thinks of Friday the 13th horrors, do they think of Judge Shira Scheindlin?  New York District Judge Scheindlin issued a decision on Friday, July 13, addressing the adequacy of searching and self-collection by government entity custodians in response to Freedom of Information Act (FOIA) requests.

Plaintiff Compelled to Produce Mirror Image of Drives Despite Defendant’s Initial Failure to Request Metadata.  In Commercial Law Corp., P.C. v. FDIC, Michigan District Judge Sean F. Cox ruled that a party can be compelled to produce a mirror image of its computer drives using a neutral third-party expert where metadata is relevant and the circumstances dictate it, even though the requesting party initially failed to request that metadata and specify the format of documents in its first discovery request.

Court Allows Third Party Discovery Because Defendant is an “Unreliable Source”.  Repeatedly referring to the defendant’s unreliability and untrustworthiness in discovery and “desire to suppress the truth,” Nebraska Magistrate Judge Cheryl R. Zwart found, in Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., that the defendant avoided responding substantively to the plaintiff’s discovery requests through a pattern of destruction and misrepresentation and therefore monetary sanctions and an adverse jury instruction at trial were appropriate.

Inadmissibility of Text Messages Being Appealed.  In October 2011, we covered a case – Commonwealth v. Koch – where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender’s identity. That case, where Amy N. Koch was originally convicted at trial on drug charges (partially due to text messages found on her cell phone), is now being appealed to the state Supreme Court.

Another Case with Inadmissible Text Messages.  Above, we discussed a case where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender’s identity. That case is now being appealed to the state Supreme Court. Today, we have another case – Rodriguez v. Nevada – where text messages were ruled inadmissible.

Court Grants Plaintiff’s Motion to Compel Mirror-Imaging of Defendant’s Computers.  In approving a motion for expedited discovery in United Factory Furniture Corp. v. Alterwitz, Magistrate Judge Cam Ferenbach granted the plaintiff’s motion for a mirror-imaging order after determining the benefit outweighed the burden of the discovery, and it denied as unnecessary the plaintiff’s motion for an order to preserve evidence and a preliminary injunction from spoliation of evidence.

Court Orders eDiscovery Evidentiary Hearing When Parties Are Unable to Cooperate.  A month ago, in Chura v. Delmar Gardens of Lenexa, Inc., Magistrate Judge David J. Waxse ordered an evidentiary hearing to discuss the sufficiency of the defendant’s search for ESI and format of production in response to the plaintiff’s motion to compel additional searching and production.

At The Eleventh Hour, Encrypted Hard Drive Is Decrypted.  In our previous post regarding the case U.S. v. Fricosu, Colorado district judge Robert Blackburn ruled that Ramona Fricosu must produce an unencrypted version of her Toshiba laptop’s hard drive to prosecutors in a mortgage fraud case for police inspection. Naturally, the defendant appealed. On February 21st, the 10th U.S. Circuit Court of Appeals refused to get involved, saying Ramona Fricosu’s case must first be resolved in District Court before her attorney can appeal. She would have been required to turn over the unencrypted contents of the drive as of March 1. However, at the last minute, Colorado federal authorities decrypted the laptop.

Court Rules Exact Search Terms Are Limited.  In Custom Hardware Eng’g & Consulting v. Dowell, the plaintiff and defendant could not agree on search terms to be used for discovery on defendant’s forensically imaged computers. After reviewing proposed search terms from both sides, and the defendant’s objections to the plaintiff’s proposed list, the court ruled that the defendant’s proposed list was “problematic and inappropriate” and that their objections to the plaintiff’s proposed terms were “without merit” and ruled for use of the plaintiff’s search terms in discovery.

KPMG Loses Another Round to Pippins.  As discussed previously in eDiscovery Daily, KPMG sought a protective order in Pippins v. KPMG LLP to require the preservation of only a random sample of 100 hard drives from among those it had already preserved for this and other litigation or shift the cost of any preservation beyond that requested scope. Lawyers for Pippins won a ruling last November by Magistrate Judge James Cott to use all available drives and Judge Cott encouraged the parties to continue to meet and confer to reach agreement on sampling. However, the parties were unable to agree and KPMG appealed to the District Court. In February, District Court Judge Colleen McMahon upheld the lower court ruling.

Tune in tomorrow for more key cases of 2012 and, once again, the most common theme of the year!

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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2012 eDiscovery Year in Review: eDiscovery Case Law, Part 2

As we noted yesterday, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to proportionality and cooperation, privilege and inadvertent disclosures, and eDiscovery cost reimbursement.  Today, let’s take a look back at cases related to social media and, of course, technology assisted review(!).

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!

SOCIAL MEDIA

Requests for social media data in litigation continue.  Unlike last year, however, not all requests for social media data were granted as some requests were deemed overbroad.  However, Twitter fought “tooth and nail” (unsuccessfully, as it turns out) to avoid turning over a user’s tweets in at least one case.  Here are six cases related to social media data:

Class Action Plaintiffs Required to Provide Social Media Passwords and Cell Phones.  Considering proportionality and accessibility concerns in EEOC v. Original Honeybaked Ham Co. of Georgia, Colorado Magistrate Judge Michael Hegarty held that where a party had showed certain of its adversaries’ social media content and text messages were relevant, the adversaries must produce usernames and passwords for their social media accounts, usernames and passwords for e-mail accounts and blogs, and cell phones used to send or receive text messages to be examined by a forensic expert as a special master in camera.

Another Social Media Discovery Request Ruled Overbroad.  As was the case in Mailhoit v. Home Depot previously, Magistrate Judge Mark R. Abel ruled in Howell v. The Buckeye Ranch that the defendant’s request (to compel the plaintiff to provide her user names and passwords for each of the social media sites she uses) was overbroad.

Twitter Turns Over Tweets in People v. Harris.  As reported by Reuters, Twitter has turned over Tweets and Twitter account user information for Malcolm Harris in People v. Harris, after their motion for a stay of enforcement was denied by the Appellate Division, First Department in New York and they faced a finding of contempt for not turning over the information. Twitter surrendered an “inch-high stack of paper inside a mailing envelope” to Manhattan Criminal Court Judge Matthew Sciarrino, which will remain under seal while a request for a stay by Harris is heard in a higher court.

Home Depot’s “Extremely Broad” Request for Social Media Posts Denied.  In Mailhoit v. Home Depot, Magistrate Judge Suzanne Segal ruled that the three out of four of the defendant’s discovery requests failed Federal Rule 34(b)(1)(A)’s “reasonable particularity” requirement, were, therefore, not reasonably calculated to lead to the discovery of admissible evidence and were denied.

Social Media Is No Different than eMail for Discovery Purposes.  In Robinson v. Jones Lang LaSalle Americas, Inc., Oregon Magistrate Judge Paul Papak found that social media is just another form of electronically stored information (ESI), stating “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms. I therefore fashion a single order covering all these communications.”

Plaintiff Not Compelled To Turn Over Facebook Login Information.  In Davids v. Novartis Pharm. Corp., the Eastern District of New York ruled against the defendant on whether the plaintiff in her claim against a pharmaceutical company could be compelled to turn over her Facebook account’s login username and password.

TECHNOLOGY ASSISTED REVIEW

eDiscovery vendors everywhere had been “waiting with bated breath” for the first case law pertaining to acceptance of technology assisted review within the courtroom.  Not only did they get their case, they got a few others – and, in one case, the judge actually required both parties to use predictive coding.  And, of course, there was a titanic battle over the use of predictive coding in the DaSilva Moore – easily the most discussed case of the year.  Here are five cases where technology assisted review was at issue:

Louisiana Order Dictates That the Parties Cooperate on Technology Assisted Review.  In the case In re Actos (Pioglitazone) Products Liability Litigation, a case management order applicable to pretrial proceedings in a multidistrict litigation consolidating eleven civil actions, the court issued comprehensive instructions for the use of technology-assisted review (“TAR”).

Judge Carter Refuses to Recuse Judge Peck in Da Silva Moore.  This is only the final post of the year in eDiscovery Daily related to Da Silva Moore v. Publicis Groupe & MSL Group.  There were at least nine others (linked within this final post) detailing New York Magistrate Judge Andrew J. Peck’s original opinion accepting computer assisted review, the plaintiff’s objections to the opinion, their subsequent attempts to have Judge Peck recused from the case (alleging bias) and, eventually, District Court Judge Andrew L. Carter’s orders upholding Judge Peck’s original opinion and refusing to recuse him in the case.

Both Sides Instructed to Use Predictive Coding or Show Cause Why Not.  Vice Chancellor J. Travis Laster in Delaware Chancery Court – in EORHB, Inc., et al v. HOA Holdings, LLC, – has issued a “surprise” bench order requiring both sides to use predictive coding and to use the same vendor.

No Kleen Sweep for Technology Assisted Review.  For much of the year, proponents of predictive coding and other technology assisted review (TAR) concepts have been pointing to three significant cases where the technology based approaches have either been approved or are seriously being considered. Da Silva Moore v. Publicis Groupe and Global Aerospace v. Landow Aviation are two of the cases, the third one is Kleen Products v. Packaging Corp. of America. However, in the Kleen case, the parties have now reached an agreement to drop the TAR-based approach, at least for the first request for production.

Is the Third Time the Charm for Technology Assisted Review?  In Da Silva Moore v. Publicis Groupe & MSL Group, Magistrate Judge Andrew J. Peck issued an opinion making it the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case. Or, so we thought. Conversely, in Kleen Products LLC v. Packaging Corporation of America, et al., the plaintiffs have asked Magistrate Judge Nan Nolan to require the producing parties to employ a technology assisted review approach in their production of documents. Now, there’s a third case where the use of technology assisted review is actually being approved in an order by the judge.

Tune in tomorrow for more key cases of 2012 and one of the most common themes of the year!

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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2012 eDiscovery Year in Review: eDiscovery Case Law, Part 1

2012 was quite a year from an eDiscovery standpoint, with a number of cases that impacted how organizations handle discovery.  There were case decisions that broke new ground (such as technology assisted review) and other cases that showed that many organizations still have a lot to learn in terms of inadvertent disclosures of privileged documents and sanctions assessed due to spoliation.

As we did last year, it seems appropriate to review cases from 2012 before moving forward to this year.  eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  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!

PROPORTIONALITY / COOPERATION

There were certainly at least a handful of cases where proportionality of eDiscovery and cooperation between parties was at issue.  Here are three such cases:

Plaintiffs Should Pay for Extensive Discovery Prior to Class Certification.  In Boeynaems v. LA Fitness International, LLC, Pennsylvania District Judge Michael Baylson held that “where (1) class certification is pending and (2) the plaintiffs have asked for very extensive discovery, compliance with which will be very extensive, that absent compelling equitable circumstances to the contrary, the plaintiffs should pay for the discovery they seek . . . . Where the burden of discovery expense is almost entirely on the defendant, principally because the plaintiffs seek class certification, then the plaintiffs should share the costs.”

There’s a New Sheriff in Town – Judge Facciola.  In Taydon v. Greyhound Lines, Inc., District of Columbia Magistrate Judge John Facciola laid down the law to the parties in the case requiring cooperation on eDiscovery issues after “[t]he filing of forty-page discovery motions accompanied by thousands of pages of exhibits” and made it clear that the parties would be expected to “meet and confer in person in a genuine, good faith effort to plan the rest of discovery”.

Tennessee Court Orders Split eDiscovery Costs, Plaintiff Bond for Additional Discovery.  In considering the allocation of costs in this contentious business dispute, Tennessee Magistrate Judge Joe B. Brown (not to be confused with TV’s Judge Joe Brown) ordered the parties to split the expenses related to material they had not already produced in Lubber Inc. v. Optari, LLC.

PRIVILEGE / INADVERTENT DISCLOSURES

There were a few cases related to privilege issues, with parties failing the five factor test and paying the price for inadvertent disclosures of privileged documents (even when disclosing two privileged pages out of two million pages produced!).  Here are five cases where disclosure of privileged documents was addressed:

Another Disclosure of Privileged Documents Fails the Five Factor Test.  In Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Ohio Magistrate Judge Norah McCann King found that the defendant had waived the attorney-client privilege was waived for 347 emails inadvertently produced, because they failed all factors in the five factor test to determine whether the inadvertent disclosure entitles the producing party to the return of the documents in question.

Counsel, The Inadvertent Disclosure “Buck” Stops With You.  In Blythe v. Bell, North Carolina Business Superior Court Judge James L. Gale denied a motion for an order compelling the return of privileged documents inadvertently disclosed by the defendants, ruling that privilege had been waived on those documents.

Privilege Waived Because Defendants Failed to Notice “Something Had Gone Awry” with Their Production.  In D’Onofrio v. Borough of Seaside Park, New Jersey Magistrate Judge Tonianne Bongiovanni denied the defendants’ motion for discovery to reclaim privileged documents that were inadvertently produced, finding that privilege was waived because the defendants failed to take reasonable measures to rectify the disclosure.

Inadvertent Disclosure By Expert Waives Privilege.  In Ceglia v. Zuckerberg (the case where Paul Ceglia is suing claiming 84% ownership of Facebook due to an alleged agreement he had with Mark Zuckerberg back in 2003), New York Magistrate Judge Leslie G. Foschio ruled that an information technology expert’s inadvertent disclosure waived the attorney-client privilege where the plaintiff could not show that it (1) took reasonable steps to prevent the disclosure of the e-mail and (2) took reasonable steps to rectify the error once it discovered the disclosure.

Two Pages Inadvertently Disclosed Out of Two Million May Still Waive Privilege.  In Jacob v. Duane Reade, Inc., Magistrate Judge Theodore Katz of the US District Court for the Southern District of New York found that a privileged, two-page email that was inadvertently produced did not have to be returned and that the privilege had been waived because the producing party, Duane Reade, had failed to request its return in a timely manner. According to Defendants’ counsel, the ESI production involved the review of over two million documents in less than a month; that review was accomplished with the assistance of an outside vendor and document review team.

EDISCOVERY COST REIMBURSEMENT

In 2011, there were several cases where the prevailing party was awarded reimbursement of eDiscovery costs.  Last year, that trend reversed somewhat as there were some cases where requests for reimbursement of eDiscovery costs was denied (or only partially granted).  Here are five cases, some of which fall into each category:

Court Reduces, But Allows, Reimbursement of eDiscovery Costs.  In Moore v. The Weinstein Company LLC, noting it had wide discretion to determine costs recoverable by a prevailing party under federal statutes providing for the taxation of costs, a court reduced costs awarded for eDiscovery expenditures based on its analysis of which costs were reasonable, necessary, and taxable.

Trend Has Shifted Against Reimbursement of eDiscovery Costs.  Last year, the trend seemed to be to award the prevailing party reimbursement of eDiscovery costs. Now, that trend appears to have been reversed with those requests being denied (or reversed) by the courts. Now, here is another case where reimbursement of eDiscovery costs was denied.

Google Awarded $1 Million from Oracle, But Denied Discovery Costs.  Judge William Alsup ordered Oracle to pay Google $1 million as reimbursement for Google’s fees for a court-appointed expert in their court battle over intellectual property and Google’s Android software. However, the ruling is only a partial victory for Google, who was seeking $4 million from Oracle in reimbursement of costs associated with the case.

No Race Tires on This Vehicle, Taxation of eDiscovery Costs Granted.  Last May, in Race Tires America, Inc. v. Hoosier Racing Tire Corporation, the winning defendants were awarded $367,000 as reimbursement for eDiscovery costs. (Hoosier Daddy!) But, then in March, an appellate court reversed all but $30,370 of those costs, implementing a narrow interpretation of 28 U.S.C. § 1920(4) for assigning those costs. Now, a new case addresses the issue of taxation of costs once again.

Not So Fast On eDiscovery Cost Reimbursement.  Today, we look at another eDiscovery ruling where a significant reduction in award amount was ruled.

We’re just getting started!  Tomorrow, we will cover cases related to social media and technology assisted review.  Stay tuned!

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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Emails Between Husband and Wife Are Not Privileged, If Sent from Work Computer – eDiscovery Case Law

In United States v. Hamilton, No. 11-4847, 2012 U.S. App. (4th Cir. Dec. 13, 2012), the Fourth Circuit found that the district court had not abused its discretion in finding that e-mails between the defendant and his wife did not merit marital privilege protection because the defendant had used his office computer and his work e-mail account to send and receive the communications and because he had not taken steps to protect the e-mails in question, even after his employer instituted a policy permitting inspection of e-mails and he was on notice of the policy.

This appeal arose after a jury convicted Phillip A. Hamilton, who had been a state legislator, of bribery and extortion under color of official right for using his legislative position to obtain funding for a public university in exchange for employment at the university. Hamilton appealed on several bases, including that the district court had improperly determined that the marital privilege was waived for e-mails sent between Hamilton and his wife. The appeals court reviewed the district court’s determination using an abuse of discretion standard.

E-mails sent between Hamilton and his wife through his work e-mail account spoke of their financial difficulties, his plan to meet with officials at Old Dominion University (“ODU”) to attempt to secure employment, and the salary he hoped to secure. Other messages that Hamilton sent and received (also from his work e-mail) from ODU officials helped show an inextricable connection between his proposed employment with the school and his plan to secure funding for the school.

In reviewing the district court’s refusal to grant marital-privilege protection to e-mails between Hamilton and his wife, the court turned to the Supreme Court’s analysis of the marital privilege in Wolfle v. United States. In Wolfle, the Court pointed out, “‘Communications between . . . spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged.’” But, “‘voluntary disclosure’ of a communication waives the privilege.” The court analogized the circumstances here to the ones in Wolfle in which the Supreme Court deemed the marital privilege waived:

In Wolfle, the Court held that a defendant’s communication with his wife did not come “within the privilege because of [his] voluntary disclosure” of the communication “to a third person, his stenographer.” (citation omitted) The Court explained that, “[n]ormally husband and wife may conveniently communicate without stenographic aid, and the privilege of holding their confidences immune from proof in court may be reasonably enjoyed and preserved without embracing within it the testimony of third persons to whom such communications have been voluntarily revealed.” (citation omitted) Because “[t]he privilege suppresses relevant testimony,” it “should be allowed only when it is plain that marital confidence cannot otherwise reasonably be preserved,” and “[n]othing in this case suggests any such necessity.” (citation omitted)

Likewise, in Hamilton’s case, with e-mail as “the modern stenographer,” Hamilton waived the marital privilege when he used his work e-mail account on his office computer to communicate with his wife, although he was able to “‘conveniently communicate without’” doing so.

Moreover, the court found, Hamilton’s argument that at the time he sent the e-mails to his wife there was no employer-instituted computer usage policy was without merit. The court pointed out that by the time the investigation into Hamilton was underway, such a policy was in place, Hamilton had signed his agreement to it, and Hamilton reaffirmed acknowledgment of the policy “every time he logged onto his work computer” when he “press[ed] a key to proceed to the next step of the log-on process.” The district court found that these facts were sufficient to establish waiver of the marital privilege, and the appellate court agreed. (Nevertheless, the court appeared to say, even if Hamilton had had a reasonable expectation of privacy in his e-mails—before the employer enacted a policy regarding the e-mails, the prior Wolfle analysis precluded any privilege from attaching in these circumstances.)

The appellate court acknowledged the protection deservedly extended to certain marital communications, but ultimately it concluded that this case fell outside those bounds:

Hamilton himself contends that he did not waive the privilege because he “had no reason to believe, at the time he sent and received the e-mails, that they were not privileged,” and he could not waive his privilege retroactively. Amicus, the Electronic Privacy Information Center, adds that it seems “extreme” to “require an employee to scan all archived e-mails and remove any that are personal and confidential every time the workplace use policy changes,” when “employees may not even be aware that archived e-mails exist or know where to find them.” (citation omitted)

In an era in which e-mail plays a ubiquitous role in daily communications, these arguments caution against lightly finding waiver of marital privilege by e-mail usage. But the district court found that Hamilton did not take any steps to protect the e-mails in question, even after he was on notice of his employer’s policy permitting inspection of e-mails stored on the system at the employer’s discretion.

Accordingly, that one may generally have a reasonable expectation of privacy in e-mail, at least before a policy is in place indicating otherwise, does not end our inquiry.

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

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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

$2.9 Billion? Gartner Predicts eDiscovery Software Market to Double by 2017 – eDiscovery Trends

As reported by Evan Koblentz in Law Technology News, electronic data discovery software sales reached $1.4 billion worldwide in 2012 and will reach $2.9 billion by 2017 according to Gartner Inc.  Their latest forecast for the eDiscovery industry is discussed in Forecast: Enterprise E-Discovery Software, Worldwide, 2012-2017, available here.

As noted in the summary to the report (not surprisingly), “[d]ouble-digit revenue growth is expected because of increased litigation and ever-expanding volumes of content and data that must be searched”.  Some notable statistics:

  • According to Gartner’s prediction, the eDiscovery software market is expected to grow by more than 15 percent annually over the next five years.  This is more than twice the growth rate for overall business software, which is growing at less than 7 percent annually.
  • Last year, Gartner forecasted $1.5 billion in eDiscovery software sales for 2013.  That figure has been raised to $1.67 billion in the latest report.
  • Part of the reason for increased growth is an increase in the international market.  According to Gartner’s evaluation of 2011 data, 82 percent of eDiscovery software revenue came from North America, 12 percent from Europe, the Middle East, and Africa, 5 percent from the Asia-Pacific region, and 1 percent from Latin America.  That’s a 5 percent rise in revenue in Europe, the Middle East, and Africa and a 3 percent rise in the Asia-Pacific region since 2008.

The report can be purchased here for $1,495.

Of course, the Gartner forecast is considerably different from this forecast from last August.

So, what do you think?  Do you think the Gartner forecast is reasonable, or perhaps possibly even too conservative?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Defendant Had Duty to Preserve Despite No Physical Possession of Documents – eDiscovery Case Law

In Haskins v. First American Title Insurance Co., No. 10-5044 (RMB/JS), 2012 U.S. Dist. (D.N.J. Oct. 18, 2012), a court found that an insurance company had a duty to issue a litigation hold to its independent title agents because litigation was reasonably foreseeable and the duty to preserve extends to third parties, as long as the documents are “within a party’s possession, custody, or control.” Although it did not have physical possession, the insurance company controlled the agents’ documents because it had “‘the legal right or ability to obtain the documents from [the agents] upon demand.’”

Customers sued First American Title Insurance Company for its alleged scheme to overcharge for title insurance when they refinanced their residential mortgages. During discovery, the plaintiffs sought access to closing documents that were not physically held by First American but by its independent title agents. Because Rule 34(a) of the Federal Rules of Civil Procedure permits a requesting party to seek access only to documents that are within another party’s “possession, custody, or control,” the court considered whether that “control” extended to documents in the hands of the independent title agents.

First establishing that control exists when “a party ‘has the legal right or ability to obtain the documents from another source upon demand’” and that “a party is not required to have physical possession of documents for control to be present,” the court highlighted the specific language in contracts between First American and its independent title agents that conferred control upon the company: “make all Documentation available for inspection and examination by COMPANY at any reasonable time” and “permit First American to examine, audit and copy all financial information and records upon reasonable prior notice.”

That some of the contracts contained language indicating that the files were the agent’s property did not negate First American’s “continued right of access to and use of its agents’ files” or disrupt its control “of the files within the meaning of Rule 34.” Moreover, any attempted argument by First American that it could not “‘force’ its agents to comply” with the company’s production request would be without merit because “First American [could] claim that the agent breached its contract if the agent [did] not produce the requested files.”

Concluding that First American possessed control over the agents’ documents requested by the plaintiffs, the court considered next whether First American had a legal obligation to issue a litigation hold ordering its agents to preserve requested documents. Because the “duty to preserve documents arises when a party ‘knows or reasonably should know’ that litigation is foreseeable,” and because the duty extends even to third parties, as long as the documents are “within a party’s possession, custody, or control,” First American, which was already engaged in litigation with the plaintiffs, had a duty to issue the litigation hold to its independent title agents.

Therefore, the court ordered First American to (1) send requests for copies of closing documents to its independent title agents who had closing documents that the parties had agreed would be produced and (2) issue a litigation hold to its agents to preserve the documents requested by the plaintiffs.

So, what do you think?  Was the court correct to order First American to issue the hold?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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

Sanctions for Violating Motion to Compel Production? Not Yet. – eDiscovery Case Law

In Fidelity National Title Insurance Co. v. Captiva Lake Investments, LLC, No. 4:10-CV-1890 (CEJ), 2012 U.S. Dist. (E.D. Mo. Nov. 16, 2012), where a party’s “conduct [did not] rise[ ] to the level of a willful violation of the order compelling production” because it was continually working toward the proper production of documents requested by its adversary, a court concluded that the adversary’s motion for sanctions was premature.

Involved in a declaratory judgment action related to policy coverage, Captiva Lake Investments asked insurer Fidelity National to produce the claims file and documents in its possession that were related to Fidelity’s “evaluation of coverage under the policy at issue.”

Fidelity responded but did not produce or include in its privilege log two categories of documents: the Major Claims Reports and data maintained in Fidelity’s Claims Processing System (“CPS”). When Captiva discovered this, it requested the data, but Fidelity merely produced an updated privilege log, claiming it could withhold the documents under privilege. Captiva filed a motion to compel, and the court granted it, ordering Fidelity to produce the information. Fidelity, however, still failed to produce only some of the requested data. Captiva then filed this motion for sanctions.

The court noted that under Rule 37 of the Federal Rules of Civil Procedure, “‘there must be an order compelling discovery, a willful violation of that order, and prejudice to the other party’” in order for the court to properly impose sanctions. Here, although Fidelity had produced only some of the information requested by Captiva, and although “the proceedings in this case present an extremely unflattering picture of Fidelity’s document and data management practices,” Fidelity was continuing to attempt to locate additional missing reports and was producing ones that it found; in addition, after producing some—but not complete—information from the CPS, Fidelity indicated to Captiva that it “‘was in contact with e-discovery specialists to figure out what else can be done with respect to the information in CPS.’”

Therefore, the court found that Fidelity’s failure to produce the data was not a willful violation of the order compelling production and denied Captiva’s motion for sanctions.

So, what do you think?  Should Fidelity have been sanctioned for failing to complete production?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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

Problems with Review? It’s Not the End of the World – eDiscovery Best Practices

If you’re reading this, the Mayans were wrong… 🙂

If 2012 will be remembered for anything from an eDiscovery standpoint, it will be remembered for the arrival of Technology Assisted Review (TAR), aka Computer Assisted Review (CAR), as a court accepted method for conducting eDiscovery review.  Here are a few of the recent TAR cases reported on this blog.

Many associate TAR with predictive coding, but that’s not the only form of TAR to assist with review.  How the documents are organized for review can make a big difference in the efficiency of review, not only saving costs, but also improving accuracy by assigning similar documents to the same reviewer.  Organizing documents with similar content into “clusters” enables each reviewer to make quicker review decisions (for example, by looking at one document to determine responsiveness and applying the same categorization to duplicates or mere variations of that first document).  This also promotes consistency by enabling the same reviewer to review all similar documents in a cluster avoiding potential inadvertent disclosures where one reviewer marks a document as privileged while another reviewer fails to mark a copy of the that same document as such and that document gets produced.

Hot Neuron’s Clustify™ is an example of clustering software that examines the text in your documents, determines which documents are related to each other, and groups them into clusters, labeling each cluster with a set of keywords which provides a quick overview of the cluster, as well as a “representative document” against which all other documents in the cluster are compared.

Clustering can make review more efficient and effective for these types of documents:

  • Email Message Threads: The ability to group messages from a thread into a cluster enables the reviewer to quickly identify the email(s) containing the entire conversation, categorize those and either apply the same categorization to the rest or dismiss as duplicative (if so instructed).
  • Routine Reports: Periodic reports – such as a weekly accounts receivable report – that are generated can be grouped together in a cluster to enable a single reviewer to make a relevancy determination and quickly apply it to all documents in the cluster.
  • Versions of Documents: The content of each draft of a document is often similar to the previous version, so categorizing one version of the document could be quickly applied to the rest of the versions.
  • Published Documents: Publishing a file to Adobe PDF format generates an exact copy (from Word, Excel or other application) of the original file in content, but different in format, so these documents won’t be identified as “dupes” based on their HASH value.  With clustering, those documents still get grouped together so that those non-HASH dupes are still identified and addressed.

Within the parameters of a review tool like OnDemand®, which manages the review process and delivers documents quickly and effectively for review, clustering documents can speed decision making during review, saving considerable time and review costs, yet improving consistency of document classifications.

So, what do you think?  Have you used clustering software to organize documents for review?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will take a break for the holidays and will return on Wednesday, January 2, 2013. Happy Holidays from all of us at Cloudnine Discovery and eDiscovery Daily!

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

Class Action Plaintiffs Required to Provide Social Media Passwords and Cell Phones – eDiscovery Case Law

We’ve seen several cases where social media data was requested – with some requests granted (including this one, this one and this one) and other requests denied (including this one, this one and this one).  Here is a recent case where the request was granted.

Considering proportionality and accessibility concerns in EEOC v. Original Honeybaked Ham Co. of Georgia, 11-cv-02560-MSK-MEH, 2012 U.S. Dist. (D. Colo. Nov. 7, 2012), Colorado Magistrate Judge Michael Hegarty held that where a party had showed certain of its adversaries’ social media content and text messages were relevant, the adversaries must produce usernames and passwords for their social media accounts, usernames and passwords for e-mail accounts and blogs, and cell phones used to send or receive text messages to be examined by a forensic expert as a special master in camera.

Case Background

This case began when the EEOC sued employer The Original Honeybaked Ham Company of Georgia (“HBH”) on behalf of a class alleging sexual harassment and retaliation. During discovery, HBH requested “numerous categories of documents designed to examine the class members’ damages—emotional and financial—as well as documents going to the credibility and bias of the class members,” and the company moved the court to compel their production.

Among the documents HBH requested were “full unredacted” social media content and text messages. HBH requested such electronically stored information (ESI) because “[m]any of the class members ha[d] utilized electronic media to communicate—with one another or with their respective insider groups—information about their employment with/separation from Defendant HBH, this lawsuit, their then-contemporaneous emotional state, and other topics and content that [HBH] contend[ed] may be admissible in this action.” For example, HBH had “obtained one affected former employee’s Facebook pages” and found that they “contain[ed] a significant variety of relevant information, and further, that other employees posted relevant comments on this Facebook account.”

Court Analysis of Document Request

Judge Hegarty noted that the variety of topics that class members discussed via electronic communications could be viewed “logically as though each class member had a file folder titled ‘Everything About Me,’ which they have voluntarily shared with others.” Therefore, because the documents—if they were in hard copy—would be discoverable if relevant, their existence in electronic form made them likewise discoverable: “The fact that [documents] exist[ ] in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.” Moreover, the fact that the “Everything About Me” folder was stored in this instance on Facebook made the documents perhaps more susceptible to discovery: “There is a strong argument that storing such information on Facebook and making it accessible to others presents an even stronger case for production, at least as it concerns any privacy objection. It was the claimants (or at least some of them) who, by their own volition, created relevant communications and shared them with others.”

As for their relevance, Judge Hegarty ticked through the categories of documents on the Facebook page that HBH had already obtained and noted that each were potentially relevant. Accordingly, and because “other employees posted relevant comments on this Facebook account,” Judge Hegarty required the production of each class member’s social media content.

Also driving Judge Hegarty’s decision was a concern for proportionality: “The cumulative exposure to the Defendant is most definitely well into the low-to-mid seven-figure range. This is important to note when addressing whether the potential cost of producing the discovery is commensurate with the dollar amount at issue.”

Judge’s Ruling

Ultimately, Judge Hegarty held that each class member should produce the following ESI and related devices: cell phones used to send or receive text messages during the relevant period, information necessary to access social media websites used during the relevant period, and information necessary to access “any e-mail account or web blog or similar/related electronically accessed internet or remote location used for communicating with others or posting communications or pictures” during the relevant period.

Protocol for Production Using a Special Master

Though the relevant information was discoverable, Judge Hegarty established a specific protocol for its production. First, the court would appoint a forensic expert to serve as a Special Master to review the produced ESI in camera. “[T]he parties [would] collaborate to create (1) a questionnaire to be given to the Claimants with the intent of identifying all such potential sources of discoverable information; and (2) instructions to be given to the Special Master defining the parameters of the information he will collect.” Judge Hegarty gave the parties specific procedures to follow in the instance of a disagreement during this process. The Special Master could then begin review.

Following in camera review by the special master, Judge Hegarty stipulated that it would also “review the information in camera and require the production to Defendant of only that information which the Court determines is legally relevant under the applicable rules.” The court would then provide the material to the EEOC, which would have an opportunity to conduct a privilege review. The EEOC would then produce nonprivileged information to HBH along with a privilege log. The court would return irrelevant materials to the EEOC and provide a method for the EEOC to contest any relevancy determinations.

Regarding costs of the review, Judge Hegarty ordered the cost of forensic evaluation to be split equally between the parties. Judge Hegarty noted, “The information ordered to be produced is discoverable—information which, if it exists, was created by the Claimants.” However, the court reserved the option to revisit the allocation of costs and to relieve the Plaintiff/Claimants of monetary responsibility if the effort produced little or no relevant information.

So, what do you think?  Was the judge correct in requiring production of user names, passwords and cell phones for each class member?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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