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

Court Rejects Discovery for Additional Time Period, But Grants Additional Discovery on Termination Plan: eDiscovery Case Law

In Blodgett et. al. v. Siemens Industry, Inc., No. 13-3194 (E.D. N.Y., Aug. 9, 2016), New York Magistrate Judge A. Kathleen Tomlinson denied the plaintiff’s motion to compel the defendant to respond to the first two requests in its third request for production, but granted the motion regarding the plaintiff’s third request for ESI regarding a division-wide reduction-in-force plan.

Case Background

In this case alleging improper termination, the plaintiffs sued after the defendant allegedly promised them continued employment and then terminated their jobs in April 2013.  Previously, the Court had directed the defendant to produce additional ESI from custodians previously agreed upon by the parties as well as two new custodians, but when the plaintiff filed a motion to compel in July 2015 regarding alleged deficiencies in the defendant’s responses, the Court denied the plaintiff’s motion, without prejudice and with the right to renew, on the grounds that it was not in compliance with Local Rule 37.1.

In its renewed motion, the plaintiffs sought production of additional emails that included a new three-month time frame (October 1, 2012 to December 31, 2012) not previously requested.  The plaintiffs also sought emails related to the rejection of a proposal for an additional sales manager position that the plaintiff argued “refers to Defendant working on a possible reduction of staff in August 2012”.  The defendant claimed that the quote in one particular email (“look at the final territory breakdown. While we worked on this last August, the documents need to be refreshed and double checked”) related to territory breakdowns, not contemplation of a reduction-in-force and one of the custodians (Richard Lattanzi) testified that there were no discussions regarding reduction-in-force in August 2012.  The plaintiffs also requested all documents related to “Project Merlin,” a division-wide reduction-in-force plan, contending that those documents were relevant, and that the defendants had not yet produced any documentation about this project.

Judge’s Ruling

Regarding the first request, Judge Tomlinson, in denying the request, stated:

“Having considered the parties’ arguments in light of these standards, the Court declines to compel Defendant to respond to Request No. 1. As Defendant points out in its opposition, compliance with this document request would require Defendant to search the ESI of all seven custodians using a third set of date parameters (i.e., October 1, 2012 to December 31, 2012) not previously agreed to by the parties or authorized by the Court. Plaintiffs simply have not provided the Court with a basis beyond speculation to believe that relevant information is likely to be uncovered as a result of requiring Defendant to undertake an additional search for the proposed three-month period.”

Judge Tomlinson, also denied the second request as well, stating “In short, Lattanzi’s deposition testimony does not support the additional discovery sought in Request No. 2. To the extent Plaintiffs wished to determine what Schlesinger meant in his March 2013 email and whether that email does, in fact, refer to an August 2012 reduction in force, they could have questioned Schlesinger about the email during his deposition, which was conducted more than four months after Defendant produced the email on April 1, 2014… And although Plaintiffs assert that “Mr. Lattanzi’s deposition revealed additional information that requires supplemental disclosure by Defendant,” Plaintiffs have not identified this alleged “additional information.” Their conclusory statement is insufficient to compel the discovery sought in Request No 2.”

However, Judge Tomlinson, granted the plaintiff’s third request, noting “From the parties’ submissions and their representations of Lattanzi’s deposition testimony, it appears to the Court that Project Merlin was an overarching reduction-in-force encompassing not only Plaintiffs’ group, but other groups within Defendant’s Building Technologies division. The Court therefore finds that documents, information, and correspondence regarding a particular reduction-in-force within Project Merlin which resulted in the termination of Plaintiffs’ employment are relevant and should be produced. However, Plaintiffs are not entitled to discover information about reductions-in-force in other groups/divisions which were affected pursuant to Project Merlin but were unrelated to Plaintiffs’ termination.”

So, what do you think?  Did the Court make the right decisions?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court Declines to Sanction Defendant for Deletion of Former Employee’s Email Account: eDiscovery Case Law

In Moore v. Lowe’s Home Centers, LLC, No. 14-01459 (W.D. Wash., June 24, 2016), Washington District Judge Robert J. Bryan denied without prejudice the plaintiff’s Motion for Sanctions for Defendant’s Willful Spoliation of Evidence for deleting her email account after she was terminated, finding a lack of duty preserve or bad faith on the defendant’s part and minimal (if any) prejudice to the plaintiff.

Case Background

In this case involving allegations of unlawful employment practices by the defendant, the plaintiff (employed at the time by the defendant) emailed the defendant’s Human Resources department and other management about her concerns “on at least eleven occasions, articulating concerns about, inter alia, other employees ‘gang[ing] up’ on her, ‘glaring and…nonverbal harassment,’ and criticism of Plaintiff’s frequent restroom use during pregnancy”. At least on one occasion, one of the defendant’s employees sent correspondence to HR suggesting that the plaintiff might sue. The defendant ultimately terminated the plaintiff in February 2013 and the defendant’s “Legal Counsel was allegedly present for at least one meeting where Plaintiff’s termination was discussed.”

On April 25, 2013, the plaintiff’s attorney demanded that the defendant produce the plaintiff’s personnel file, which, according to the Court, formally placed the defendant on notice of potential litigation.  However, according to the defendant, the plaintiff’s email account was deleted on March 30, 2013 as part of a nightly-scheduled exchange task, which automatically deleted employees’ accounts on a certain date following their termination unless the defendant intervened, for example, when there was a Legal Hold.  The defendant allegedly limited its management and HR employees to 50MB of storage capacity in their inboxes, requiring employees to regularly clean out their inboxes manually or with automatic settings.  HR employees had deleted emails from the plaintiff that they acknowledged included emails that the plaintiff produced in discovery.  The plaintiff filed a Motion for Sanctions for Defendant’s Willful Spoliation of Evidence, requesting terminating sanctions.

Judge’s Ruling

Judge Bryan stated that the “parties’ briefing focuses on four issues, which are the focus of the undersigned’s analysis: (1) Defendant’s duty to preserve; (2) whether Defendant acted willfully or in bad faith; >(3) prejudice to Plaintiff; and (4) the appropriate sanction.”  Taken in turn, Judge Bryan ruled that:

  1. “Based on the parties’ submissions, Defendant did not have a duty to preserve Plaintiff’s emails prior to their deletion. Most of Plaintiff’s emails to HR and management do not raise ‘potential claims,’ but rather raise Plaintiff’s concerns about workplace gossip and challenging relationships.”;
  2. “Defendant was not on notice of potential litigation and had no duty to preserve Plaintiff’s emails until April 25, 2013, so Defendant did not act in bad faith by deleting Plaintiff’s emails, especially where there is no evidence that Defendant deleted them in violation of Defendant’s Records Management Policy or its own consistent records practice.”;
  3. “Even if Defendant willfully violated its duty to preserve Plaintiff’s emails, Plaintiff suffers only minimal prejudice, if any. Plaintiff produced eleven emails that substantiate much of the factual basis for most of her claims.”; and
  4. “Because Plaintiff asks only for the sanction of default, a request the Court denies, other remedies need not be addressed.”

As a result, Judge Bryan denied without prejudice the plaintiff’s Motion for Sanctions for Defendant’s Willful Spoliation of Evidence.

So, what do you think?  Should the duty to preserve have been earlier?  If so, would that have changed the result?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

We Are Family, I Got All My Attachments and Me: eDiscovery Best Practices
 OK, I know that’s not how the classic Sister Sledge song goes, but I’m such an eDiscovery geek that every time I think of that song these days, I think of keeping email and attachment families together.  One of the most common mistakes that I see clients make is that they forget to account for complete “families” in their email productions, which leads to an incomplete production to opposing counsel.

Having assisted a client with this just the other day, it seems appropriate to revisit this topic…

In most cases these days when an email or attachment is deemed to be responsive, the receiving party expects to also receive any “family” members of the responsive file (with the possible exception of embedded signature logo graphics, which are often considered extraneous and often removed before review).  Attorneys like to have the complete family when reviewing the production from the other side, even if some of the individual files aren’t responsive themselves.  Receiving an email without its corresponding attachments or receiving some, but not all, of the attachments to an email tends to raise suspicions.  Most attorneys don’t want to give opposing counsel a reason to be suspicious of their production, so parties usually agree to produce the entire email “family” in these cases.  Here’s a scenario:

The case involves an employment dispute over non-disclosure of company trade secrets by a company’s employees.  A supervisor at the company verbally requests copies of non-disclosure agreements related to several of his employees from his HR director and the HR director emails a copy of those non-disclosure agreements attached to an email with the subject “Requested files” and the body stating “Here you go…” (or something to that effect).  A search for “non-disclosure” retrieves the attached agreement, but not the email, which doesn’t really have any pertinent information on it.  Only part of the email “family” is responsive to the search.  This is common.

If it’s important to produce all communications between parties at the company regarding non-disclosure agreements, this email communication could be missed – unless your review protocol includes capturing the family members of responsive files and your review software provides an option to view the family members of responsive files and include them in search results.  There are rare cases where parties agree to limit production to actual responsive files and not produce the families, but that’s unusual.

If your case isn’t one of those rare exceptions, make sure you have a well thought out protocol and robust software for including family members in your search results and in your document reviews for responsiveness, as well as automated and manual Quality Assurance (QA) and Quality Control (QC) checks to ensure your production contains complete family groups.  Singing We Are Family doesn’t just make you a Sister Sledge (or 1979 Pittsburgh Pirates) fan, it may also make you an eDiscovery geek, determined to keep family groups together in your production.  :o)

So, what do you think?  How do you handle family groups in discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Appeals Court Reverses Terminating Sanctions Against Plaintiff for Deletion of Emails: eDiscovery Case Law

In Flagship Theatres of Palm Desert, LLC v. Century Theatres, Inc. et. al., No. B257148, Consolidated  with Nos. B259552 and B261149 (Cal. App., May 24, 2016), the Court of Appeals of California, Second District determined that the trial court “abused its discretion” by “granting terminating sanctions in a case in which the prejudice to the non-offending party can be ameliorated by a more limited remedy”.  As a result, the appeals court reversed the judgment and remanded it back to the trial court with a lesser sanction, prohibiting the plaintiff “from offering evidence of acts, events, or communications occurring during the period” when one of the plaintiffs deleted emails.

Case Background

In this antitrust suit, the plaintiffs, who operated a movie theater, claimed that the defendants had conspired to keep the most popular films from being distributed to the plaintiff’s theater and filed suit in 2006.  For the next two years, the case proceeded through discovery, and each side requested and received documents from the other. Most notably, in December 2006, one defendant served a set of requests for production in which it requested numerous categories of documents from the plaintiffs.  Ultimately, the plaintiffs voluntarily dismissed movie distributor defendants from the case, but added Cinemark as a defendant following Cinemark’s acquisition of Century.

From the date of production in 2007 until the trial court granted summary judgment in July 2008, no defendant moved for further production.  That summary judgment decision was reversed by the appellate court in 2011 and remanded back to the trial court for further proceedings.

In the summer of 2012, one of the plaintiffs (Tabor) began experiencing problems sending and receiving email from the AT&T account that he used for both personal and business email.  On the advice of an AT&T customer service representative, he deleted thousands of email messages to free up space, deleting the earliest emails up to February 19, 2009.  The plaintiffs then received another discovery request from the new defendant (Cinemark) requesting emails. Upon realizing that he had deleted items he had a duty to preserve, Tabor attempted to recover the emails but was unsuccessful. When Cinemark learned that Tabor had deleted the emails, it moved for sanctions. The trial court denied the motion because it was unable to fully evaluate the extent of prejudice to Cinemark. Subsequently, Cinemark renewed its motion for sanctions. This time, the trial court granted the motion and the plaintiff appealed.

Appellate Court’s Ruling

The court noted that “Cinemark likely suffered some prejudice, and it is entitled to a remedy to compensate for this prejudice. But the potential for prejudice is limited to the period between the spring of 2007 [the time period up to which the plaintiff had previous produced relevant ESI] and February 19, 2009 because the relevant emails outside that period, with some minor exceptions, were saved. Accordingly, the trial court abused its discretion by not limiting appropriate sanctions to the period between the spring of 2007 and February 19, 2009.”

The appellate court also disagreed with the trial court opinion that the plaintiffs “must be able to establish that they actually sought to license and play enough films to generate 40% of the cumulative box office grosses”, noting that the plaintiffs might have realized that distributors were unwilling to give them certain kinds of movies and simply stopped requesting them.  Because the appellate court determined that the deletion of emails outside of the 2007-2009 time frame was “small scale and innocuous”, it determined that there was no justification for additional sanctions.

As a result, the appellate court reversed the judgment and remanded it back to the trial court with a lesser sanction, prohibiting the plaintiff “from offering evidence of acts, events, or communications occurring during the period” between spring 2007 and February 19, 2009 (unless Cinemark offered evidence during that time period that was “more than nonsubstantive, peripheral, or foundational”, in which case, the plaintiffs could present evidence and seek damages pertaining to that time period).

So, what do you think?  Was the appellate court sanction a more appropriate remedy?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

The Number of Files in Each Gigabyte Can Vary Widely: eDiscovery Best Practices

Now and then, I am asked by clients how many documents (files) are typically contained in one gigabyte (GB) of data.  When trying to estimate the costs for review, having a good estimate of the number of files is important to provide a good estimate for review costs.  However, because the number of files per GB can vary widely, estimating review costs accurately can be a challenge.

About four years ago, I conducted a little (unscientific) experiment to show how the number of pages in each GB can vary widely, depending on the file formats that comprise that GB.  Since we now tend to think more about files per GB than pages, I have taken a fresh look using the updated estimate below.

Each GB of data is rarely just one type of file.  Many emails include attachments, which can be in any of a number of different file formats.  Collections of files from hard drives may include Word, Excel, PowerPoint, Adobe PDF and other file formats.  Even files within the same application can vary, depending on the version in which they are stored.  For example, newer versions of Office files (e.g., .docx, .xlsx) incorporate zip compression of the text, so the data sizes tend to be smaller than their older counterparts.  So, estimating file counts with any degree of precision can be somewhat difficult.

To illustrate this, I decided to put the content from yesterday’s case law blog post into several different file formats to illustrate how much the size can vary, even when the content is essentially the same.  Here are the results – rounded to the nearest kilobyte (KB):

  • Text File Format (TXT): Created by performing a “Save As” on the web page for the blog post to text – 4 KB, it would take 262,144 text files at 4 KB each to equal 1 GB;
  • HyperText Markup Language (HTML): Created by performing a “Save As” on the web page for the blog post to HTML – 57 KB, it would take 18,396 HTML files at 57 KB each to equal 1 GB;
  • Microsoft Excel 97-2003 Format (XLS): Created by copying the contents of the blog post and pasting it into a blank Excel XLS workbook – 325 KB, it would take 3,226 XLS files at 325 KB each to equal 1 GB;
  • Microsoft Excel 2010 Format (XLSX): Created by copying the contents of the blog post and pasting it into a blank Excel XLSX workbook – 296 KB, it would take 3,542 XLSX files at 296 KB each to equal 1 GB;
  • Microsoft Word 97-2003 Format (DOC): Created by copying the contents of the blog post and pasting it into a blank Word DOC document – 312 KB, it would take 3,361 DOC files at 312 KB each to equal 1 GB;
  • Microsoft Word 2010 Format (DOCX): Created by copying the contents of the blog post and pasting it into a blank Word DOCX document – 299 KB, it would take 3,507 DOCX files at 299 KB each to equal 1 GB;
  • Microsoft Outlook 2010 Message Format (MSG): Created by copying the contents of the blog post and pasting it into a blank Outlook message, then sending that message to myself, then saving the message out to my hard drive – 328 KB, it would take 3,197 MSG files at 328 KB each to equal 1
  • Adobe PDF Format (PDF): Created by printing the blog post to PDF file using the CutePDF printer driver – 1,550 KB, it would take 677 PDF files at 1,550 KB each to equal 1

The HTML and PDF examples weren’t exactly an “apples to apples” comparison to the other formats – they included other content from the web page as well.  Nonetheless, the examples above hopefully illustrate that, to estimate the number of files in a collection with any degree of accuracy, it’s not only important to understand the size of the data collection, but also the makeup of the collection as well.  Performing an Early Data Assessment on your data beforehand can provide those file counts you need to more accurately estimate your review costs.

So, what do you think?  Was the 2016 example useful, highly flawed or both?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Our Nation’s Largest City is Not Immune to eDiscovery Sanctions: eDiscovery Case Law

In Stinson v. City of New York, 10 Civ. 4228 (RWS) (S.D.N.Y. Jan. 2, 2016), New York District Judge Robert W. Sweet granted in part and denied in part the plaintiffs’ motion seeking sanctions for spoliation of evidence against the defendants for failure to issue a litigation hold, opting for a permissive inference rather than a mandatory adverse inference sanction against the defendants.

Case Background

In this civil rights class action against the City of New York, it was determined that the City did not issue any litigation hold until August 8, 2013, more than three years after the filing of the Complaint in this case and the litigation hold was not effectively communicated, and none of the officers who were named in the City’s initial disclosures acknowledged receiving it.

At the time of the litigation hold, the document destruction processes at the NYPD were governed by Operations Order 44, which specified the length of time the Department would be required to retain various categories of documents.  Order 44 authorized the destruction of most bureau chief memos after three years, police officers’ monthly performance reports after four years, and criminal court summonses after four years.  With regard to emails, the City’s 30(b)(6) witness stated that “although the NYPD did not have a specific policy with regards to the destruction of email communications, it did impose a hard size limit on officers’ inboxes, and that when officers hit that limit, ‘they delete.’”  The City also did not dispute that it had not made any effort to preserve or produce text messages between NYPD officers.

With regard to the defendants’ production, the Court noted that they produced fewer than 25 emails from key players, with no emails produced from the former Commissioner, the former Chief of the department, and three other key custodians. The defendants explained the lack of email production by contending that the “Police Department on the whole did not operate via email”, but that contention was countered by email communications with the city that the plaintiffs acquired from third parties.

Judge’s Ruling

Citing Chin v. Port Authority of New York and New Jersey, Judge Sweet stated that:

“In order to merit an adverse inference, the party seeking sanctions must establish 1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed, 2) that the records were destroyed with a culpable state of mind, and 3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”

  • With regard to the defendants’ obligation, Judge Sweet rejected the defendants’ argument that the plaintiffs’ preservation requests were overbroad, stating “Plaintiffs’ putative overbroad demands do not excuse the City’s failure to issue a litigation hold, to properly supervise its implementation, or to suspend document retention policies that would foreseeably lead to the spoliation of evidence.”
  • With regard to the defendants’ culpable state of mind, Judge Sweet stated that “the City’s conduct shows a broad failure to take its preservation obligations seriously rather than any deliberate attempt to lie or mislead”, but noted that the “City’s conduct does, however, support a finding of gross negligence”.
  • With regard to the relevance of the destroyed documents, Judge Sweet determined that the “evidence adduced thus far indicates that at least some of the destroyed documents will be relevant to the Plaintiffs’ claims”, though he did note that the showing of relevance by the plaintiffs was “relatively limited”.

As sanctions for the defendants’ spoliation, the plaintiffs requested a set of sixteen adverse inferences touching on almost every aspect of their case, but Judge Sweet opted for a lesser level of sanctions, stating:

“Given the City’s lack of bad faith in its spoliation of evidence and the relatively limited showing of relevance made by the Plaintiffs, a permissive, rather than a mandatory adverse inference is warranted…A permissive inference will ensure that the City faces consequences for its failure to take its preservation obligations seriously, but will not result in an unwarranted windfall for the Plaintiffs. The jury will be instructed that the absence of documentary evidence does not in this case establish the absence of a summons quota policy.”

So, what do you think?  Was that a sufficient sanction for the defendants’ “gross negligence” in failing to issue a litigation hold?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Alteration of Domain in Produced Emails Leads to Sanctions for Plaintiffs: eDiscovery Case Law

In CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (AT) (JCF) (S.D.N.Y. Jan. 12, 2016), New York Magistrate Judge James C. Francis IV, ruling that emails produced by the plaintiffs were “intentionally altered”, ordered that the plaintiffs would be precluded from relying on their version of those emails to demonstrate their case and that the plaintiffs would bear the “costs, including reasonable attorney’s fees, incurred by the defendants in establishing the plaintiffs’ misconduct and in securing relief.”

Case Background

One of the key issues in this case regarding trademark infringement regarded similarity between the plaintiffs’ and defendants’ trademarks and whether the defendants developed their trademark (FLASHXHYPE) mark independently or after learning of the plaintiffs’ development of their trademark (SLAMXHYPE).  In a deposition of the defendant company’s president, communication between the defendant and plaintiff companies was provided (which had been produced as PDF images) that showed the plaintiffs’ employee’s address as having the email domain “@slamxhype.com.”  However, on cross examination, the deponent testified that the email he received was identical, except that it showed the plaintiffs’ employee’s address with the email domain “@ecko.com.”

The defendants’ counsel then sought to explore the discrepancy, and in May 2015, they demanded production of the plaintiffs’ emails in native form.  The plaintiffs did not initially respond and, ultimately, their attorneys withdrew and were replaced by new counsel.  In July 2015, the Court ordered the plaintiffs to comply with the defendants’ request and the plaintiffs produced a USB drive containing a PST file, a zip file, and several separate PDFs of relevant emails.

The defendants subjected that production to a forensic analysis which determined that there were two versions of each email message: a “top” level version and, behind each email message, a “near-duplicate copy of the message containing the identical message,” but with different email domains appearing for a number of the senders and recipients.  The underlying near-duplicate versions were the original emails, which had been deleted, albeit not without leaving a digital imprint.

Relying largely on the forensic analysis, the defendants then moved for sanctions consisting of some combination of dismissal of the complaint, imposition of an adverse inference, an order of preclusion, and assessment of attorneys’ fees and costs.

Judge’s Ruling

In considering the application of the amended Rule 37(e) to the situation, Judge Francis determined that “because the amendment is in some respects more lenient as to the sanctions that can be imposed for violation of the preservation obligation, there is no inequity in applying it.”

With regard to the plaintiffs’ claim that “there has been no destruction or loss of any evidence, and there certainly has not been both (i) loss of evidence AND (ii) “such evidence cannot be restored or replaced” as required by Rule 37, Judge Francis, citing Victor Stanley (the first case ever covered by this blog), stated “the plaintiffs argue that even if they are the ‘gang that couldn’t spoliate straight,’ they cannot be sanctioned because their misdeeds were discovered and the information recovered. They are incorrect.”  Elaborating, Judge Francis said that “it cannot be said that the information lost has been ‘restored or replaced’”, noting that “as the plaintiffs themselves suggest, the fact that there are near-duplicate emails showing different addresses casts doubt on the authenticity of both”.

Regarding the plaintiffs’ contention that the manipulation of the emails was unintentional and possibly due to the migration of the plaintiffs’ emails from one system to another, Judge Francis refuted that notion, stating that the “evidence supports the defendants’ allegation that the plaintiffs intentionally altered the emails at issue”.

With regard to relief, Judge Francis, while considering dismissal of the action or imposition of an adverse inference as possible sanctions, stated “such drastic sanctions are not mandatory”.  Therefore, he ordered a “two-fold remedy”, ordering that the plaintiffs would be “precluded from relying upon their version of the emails at issue to demonstrate notice to the defendants of use of the SLAMXHYPE mark” and that the plaintiffs would bear the “costs, including reasonable attorney’s fees, incurred by the defendants in establishing the plaintiffs’ misconduct and in securing relief.”

So, what do you think?  Were those sanctions warranted?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

KMWorld Highlights CloudNine and Simplified eDiscovery

Extract from article in KMWorld by Judith Lamont on January 31, 2016: CloudNine is a cloud-based product used for e-discovery and investigation. The company also provides professional services to organizations that want to delegate some or all of their discovery tasks to a third party. CloudNine is designed to be simple to use, with a straightforward online process for uploading, reviewing and producing electronically stored information for litigation and investigations.

“Although we are CloudNine, we are not cloud-based the way most people think of it,” says Brad Jenkins, president and CEO of CloudNine. “We use a private infrastructure, and the data is highly secure, residing on dedicated servers on a dedicated network in a Tier 4 data center. We don’t use the public cloud at all.” Two pricing models are available; pay-as-you-go plans start at $25/GB per month, which includes 30 days of hosting but does not include processing (normally $100/GB for self-service processing). Subscription plans start at $1,000 per month, which includes unlimited self-service processing and up to 50GB of hosting.

The customers for CloudNine have typically been companies that provided litigation support as well as small to medium-sized law firms. Recently, larger law firms have started to use it to manage e-discovery for their clients, and that group of customers now includes dozens of firms, including more than 50 of the top 250 law firms. In addition, large (Fortune 100) corporations are using CloudNine for internal investigations and compliance.

CloudNine uses dtSearch as its search software. “It indexes very quickly,” says Doug Austin, VP of professional services, “and handles a range of file types from e-mail to documents and database information.” As for processing, CloudNine automatically unpacks the data, pulls out metadata and text and uses OCR to convert image files to searchable text.

“One thing that customers are very interested in is analytical capabilities,” Austin adds. “They want to be able to get an idea early on about whether they should settle or litigate. If they can analyze their data quickly, they can decide what their exposure is and then choose the best course of action. The simplified e-discovery automation that CloudNine provides enables our clients to perform that analysis and make those decisions quickly and effectively.”

Source: Article: Legal Applications of KM Trend Toward Flexibility, Simplicity

For the complete article, click here.

For a Positive Outlook to Discovering Emails, You Need a Closed Outlook: eDiscovery Best Practices

Does that statement seem confusing?  Let me explain.

Let’s call this a “tip of the day”.  As you may know, at CloudNine (shameless plug warning!), we have an automated processing capability for enabling clients to load and process their own data – they can use this capability to load their data into our review platform or they can even process data for loading into their own preferred review platform if they want.  So, we can still help you even if you already use Relativity or a number of other popular platforms.

Regardless of that fact, most of our users are using the processing capability to process emails, usually from Outlook Personal Storage Table (PST) files.  Let’s face it, despite increased volumes of social media and other types of electronically stored information, emails are still predominant in eDiscovery.  And, for those users, we get one issue more than any other when it comes to processing those Outlook emails:

They still have Outlook open with the PST file opened when they attempt to upload that PST file or when they try to create a ZIP file containing the Outlook PST.

The resulting ZIP file that is created (either by the user or by our client application if the data is not already contained in an archive file) will almost invariably be corrupted or empty.  Either way, this results in a failure during processing of the loaded data – because, that data is simply corrupt.

So, my tip of the day is this: Before attempting to create a ZIP (or RAR or other type of archive) of a PST file (or before you upload it to a platform like CloudNine for processing), make sure that Outlook is closed or at least that the PST file is closed within Outlook.  For a positive outlook to discovering emails, you need a closed Outlook.

Does that make sense now?  :o)

So, what do you think?  Is email still the predominant source of discoverable ESI in your organization?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Motion to Compel Denied for Employees’ Personal Emails, Granted for Third Party Hosted Data: eDiscovery Case Law

In Matthew Enterprise, Inc. v. Chrysler Group, LLC, No. 13-cv-04236-BLF (N.D. Cal. Dec. 10, 2015), California Magistrate Judge Paul S. Grewal denied the defendant’s motion to compel production from personal email accounts of the plaintiff’s employees because the plaintiff did not have legal control of the emails.  However, he granted the defendant’s motion to compel production from the plaintiff’s customer communications database operated by a third party vendor, noting that the plaintiff did have control of that data, having already produced data from this source.

Case Background

In this price discrimination dispute between an auto manufacturer and its dealer, the defendant moved to compel the plaintiff to produce emails from the personal accounts of the plaintiff employees (because the plaintiff did not furnish all its employees with email accounts, many of them used their personal accounts for business purposes) and from the plaintiff’s customer communications database.  The plaintiff argued that the employee email accounts were outside its “possession, custody, or control,” so they were beyond the scope of party discovery. Similarly, because an outside vendor maintained and operated the plaintiff’s customer communications database, the plaintiff contended that those communications were also not discoverable. The defendant responded that the plaintiff still has control over its company information, whether it is stored in personal email accounts or in a vendor’s database.

Judge’s Ruling

With regard to the employees’ emails, Judge Grewal ruled:

“Chrysler has not carried this burden for the emails in personal accounts. Chrysler points to a Stevens Creek employee handbook that instructs employees to keep ‘internal information’ in the ‘sole possession’ of Stevens Creek, but this is not a contract and so does not create a legal right for Stevens Creek to take back any such information now stored in personal accounts.   And as Stevens Creek pointed out at the hearing on this motion, even if the court were to order that Stevens Creek collect emails from its employees’ personal accounts, Chrysler has not identified any authority under which Stevens Creek could force employees to turn them over. The Ninth Circuit has recognized that ‘[o]rdering a party to produce documents that it does not have the legal right to obtain will oftentimes be futile, precisely because the party has no certain way of getting those documents.’  That is the case here.  The motion to compel production from employees’ personal email accounts is DENIED.”

As for the customer communications database, Judge Grewal had a different ruling:

“The AVV database is different.  Although the contract that governs Stevens Creek’s relationship with AVV is not before the court, Stevens Creek clearly has access to information from the AVV database that Stevens Creek pays AVV to maintain.  In fact, Stevens Creek already did ‘go to AVV and ask them to do a special production generation’ of certain data, but the data produced was not from the relevant time period. Furthermore, days before the hearing on this motion – and weeks after the motion was filed – Stevens Creek asked AVV to produce the information that Chrysler seeks here. Stevens Creek argues that Chrysler should have to subpoena information from AVV directly, but the burden of a non-party subpoena is unnecessary when the information sought lies within Stevens Creek’s legal control. Chrysler’s motion with respect to the documents in the AVV database is GRANTED.”

So, what do you think?  Should an organization have legal control of the emails related to their business that are maintained in an employee’s personal email account?  Please share any comments you might have or if you’d like to know more about a particular topic.

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