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Court Denies Default Judgment Sanctions for Defendant’s Production of Two Versions of Same Email: eDiscovery Case Law

But first, a reminder that Relativity Fest started yesterday and CloudNine is there.  As part of the team, I will be there covering the conference for eDiscovery Daily and will speaking(!) on Tuesday.  Click here to see our post on some of the anticipated highlights from the conference.  Today’s highlight is The Judicial Panel, today at 1:00pm, with David Horrigan of Relativity, along with Judge Nora Barry Fischer of the Western District of Pennsylvania, Judge Andrew Peck of the Southern District of New York, Judge Xavier Rodriguez of the Western District of Texas and (all the way from Australia) Justice Peter Vickery of the Supreme Court of Victoria (and the recent landmark TAR decision in that country) to discuss the latest legal developments in eDiscovery.

In Catrinar v. Wynnestone Communities Corp., et al., No. 14-11872 (E.D. Mich. Sept. 30, 2017), Michigan Magistrate Judge R. Steven Whalen denied the plaintiff’s Motion for Discovery Sanctions (requesting a default judgment) for fabricating and producing false evidence, finding that the defendant’s production of two versions of an email fail all four factors of the Harmon test applied by the court in this case to determine whether the defendant’s failure was due to willfulness, bad faith, or fault and whether the plaintiff was prejudiced by the defendant’s conduct, among other factors.

Case Background

In this case regarding the plaintiff’s claim against his former employer alleging violations of the Family Medical Leave Act (“FMLA”) as well as breach of contract and promissory estoppel, the centerpiece of the plaintiff’s Motion for Discovery Sanctions was an allegation that the defendants fabricated and produced false evidence in the case.  The allegation of false evidence stemmed from defendant Silverman’s apparent rewrite of an email originally sent on December 21, 2008, concerning an “E&S” Plan and whether Silverman was aware of the plan or authorized any amendments to the plan.  The original email, which the plaintiff referred to as ‘the real email,’ was written partially in Spanish; the second, which the plaintiff referred to as ‘the fake email,” elaborated more on Silverman’s lack of knowledge of any such plan.  Both emails were dated on December 21, 2008 and the plaintiff argued that the “fake email” fraudulently supported Silverman’s position that he did not authorize an amendment to the E&S Plan, and that the “real email” offered no such support.

The defendant conceded that the native Outlook email file of what the plaintiff referred to as the “fake email” showed that it was created in January 2012, not December 2008.  However, in Silverman’s declaration, he stated that he forwarded the December 2008 email to himself in January 2012 for the purpose of re-writing in English and elaborating on his original message, stating “The point of the two emails is the same.”

Judge’s Ruling

Judge Whalen stated: “The Court’s discretion is informed by the four-part test described in Harmon v. CSX Transportation, Inc…: (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed or defaulted party was warned that failure to cooperate could lead to dismissal or entry of default judgment; and (4) whether less drastic sanctions were imposed or considered before dismissal or default judgment was ordered.”

Judge Whalen also noted that “In deciding whether to impose ‘the draconian sanction’ of default judgment, the first factor—the party’s willfulness or bad faith in failing to comply with a discovery order—looms large.”  Noting that “Plaintiff filed his complaint on May 9, 2014, about two years and four months after the ‘fake email’ was created”, Judge Whalen, while acknowledging that “the discrepancy between the two emails and Silverman’s explanation as to how the later email came to be created may undoubtedly be exploited to the Plaintiff’s advantage” in trial, nonetheless stated: “I do not find that Plaintiff has shown ‘willfulness, bad faith, or fault’ with respect to the creation of the 2012 email.”  Judge Whalen also found that the plaintiff failed to meet the second Harmon factor, determining that the plaintiff was not prejudiced due to the fact that an “extension of discovery cures any prejudice which might otherwise have occurred as the result of the delay in Defendants’ production of the emails.”  Judge Whalen also found that the third and fourth Harmon factors were also not met, stating: “Defendants have not been previously warned that a default judgment or other sanctions could be imposed for discovery violations, nor have any lesser sanctions been imposed.”  As a result, Judge Whalen denied the plaintiff’s Motion for Discovery Sanctions.

So, what do you think?  Was the defendant’s explanation for the second email plausible?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can still vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

Case opinion link courtesy of eDiscovery Assistant.

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

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

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

Case Background

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

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

Judge’s Ruling

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

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

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

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

So, what do you think?  Should there be special considerations for producing source code or other intellectual property?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

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

Case Background

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

Judge’s Ruling

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

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

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

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

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

So, what do you think?  Is it time to rewrite or update the 31 year old Stored Communications Act?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

Metadata Plays Key Role in $10.8 Million Whistleblower Lawsuit Verdict: eDiscovery Case Law

Earlier this month, federal jurors awarded nearly $8 million to the former general counsel of a company who says he was fired because he blew the whistle on his company’s potential violation of a foreign bribery law.  That award will increase to $10.8 million because the Dodd-Frank Act authorizes the doubling of back pay for whistleblower retaliation.

An article in The Recorder (Ousted Bio-Rad GC Wins Whistleblower Case, written by David Ruiz) stated that a federal jury sided with former Bio-Rad Laboratories Inc. general counsel Sanford “Sandy” Wadler in his whistleblower retaliation lawsuit against the company, after deliberating for less than three hours.

The jury awarded Wadler $2.9 million in back pay and stock compensation and $5 million for punitive damages.

“I’m extraordinarily grateful to the jury for its very thoughtful verdict in finding that whistleblowers need protection,” lead attorney James Wagstaffe (of law firm Kerr & Wagstaffe) said immediately after the verdict was read. “You’re not supposed to fault whistleblowers for raising legitimate concerns about potential corruption.”

Wagstaffe also said that back pay damages are doubled, increasing the total award to $10.8 million.

Wadler, who was fired from his post at Bio-Rad in June 2013, maintained that he was forced out because he blew the whistle on potential Foreign Corrupt Practices Act violations by the company in China.  Jurors found that Wadler’s whistleblowing activities were a significant reason the company fired him in June of that year.

Wadler’s lawyers at Kerr & Wagstaffe were able to undermine some company testimony by pointing to a lack of documentation about Wadler’s alleged outbursts, partly by repeatedly returning to the last review that Wadler received while on the job in December 2012, which was largely positive.

A key aspect of the jury’s decision related to the metadata associated with Wadler’s most recent performance evaluation, which was apparently dated in April 2013.  Before the jury reached its verdict, it asked about the timing of that performance evaluation. According to Wagstaffe, metadata showed the performance evaluation was actually created in July 2013, a full month after Wadler’s termination. The jury asked if the date referred to the document’s creation or its modification. It referred to creation, said U.S. Magistrate Judge Joseph Spero, who presided over the case.

In an interview with Courthouse News, Wagstaffe said the metadata evidence helped tip the scale in Wadler’s favor and that the “fake job review” (his words, not mine) was a major piece of evidence that helped tip the scale.

Hat tip to Sharon Nelson at Ride the Lightning for her post about the story.

So, what do you think?  Can metadata prove when a document was created?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — Happy Valentine’s Day!

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

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

Court Orders Plaintiff to Produce Native Format Version of Email Potentially Altered: eDiscovery Case Law

In Lifetouch National School Studios, Inc. v. Roles, No. 3:15-cv-234 (W.D. P.A., Dec. 15, 2016), Pennsylvania District Judge Kim R. Gibson granted the portion of the defendant’s motion to compel associated with the request for the plaintiff to produce all copies of a potentially altered email in native format circulated within its organization or any of its agents.

Case Background

In this breach of contract case, the plaintiff alleged that the defendant had accepted a sales position with a competitor of the plaintiff company (Strawbridge Studios, Inc.) and solicited the plaintiff’s employees and customers in violation of her employment agreement.  During discovery, two different versions of a particular email were produced: one received by a client where the client wrote “Strawbridge[,] No contract.” and the other received by Strawbridge forwarded by an employee (Joseph Segall) of the plaintiff where the client had written “Strawbridge[,] No contract. Beth Roles.”

Both individuals who wrote the emails testified under oath that they did not include the defendant’s name in the emails, leaving the defendant to request leave to amend her counterclaim, alleging that the Strawbridge email was altered by the plaintiff to interfere with her employment at Strawbridge.  The Court granted as unopposed the defendant’s motion for leave to amend.  The defendant then filed a motion to compel production of, among other things, copies of the email in native format from all individuals at the plaintiff’s organization to whom it was forwarded or sent.

Judge’s Ruling

Judge Gibson first commented on the relevancy of the email, stating “Based on Roles’s counterclaims, this information falls within the scope of relevant material. Roles’s counterclaims are premised on the allegation that Lifetouch intentionally altered the August 25, 2015 email. Documents illustrating how that email was circulated within Lifetouch relate to whether Lifetouch did in fact alter the August 25, 2015 email, and—if so—how that alteration occurred.”

When assessing the appropriateness of discovery of the emails, Judge Gibson, noting that the plaintiff appeared to have abandoned earlier privilege objections for the emails, noted “Lifetouch appears to argue that it has already produced enough information regarding the emails. Lifetouch states that Roles ‘already has a copy of the email from Segall to Strawbridge,’ and Lifetouch goes on to explain that it has produced PDF versions of the email and the native form of the email as forwarded from Segall to Strawbridge. Further, Lifetouch argues that ‘a copy of that email in native form is not only unreasonable, but not likely to lead to the discovery of admissible information based on those emails that have already been produced.’”

In response, Judge Gibson said “These arguments are insufficient to avoid discovery. As an initial matter, the fact that Roles already has a copy of the August 25, 2015 email has no bearing on whether Lifetouch altered the email. The relevance of the documents Roles seeks is derived from their circulation within Lifetouch; a complete picture of how the email was received, discussed, and ultimately sent—or even discussed after it was sent—would be relevant to Roles’s claims. Thus, the fact that Roles already has a copy of the email is irrelevant. And Lifetouch’s argument that it should not have to produce these documents because it already produced a copy of the email from Segall to Strawbridge is unpersuasive for the same reasons.”

Judge Gibson also noted that, while arguing that production in native format is unreasonable, “Lifetouch does not explain what about native production would be unreasonable. Furthermore, Lifetouch specifically agreed ‘to produce . . . electronic documents in native format’ in the parties’ Rule 26(f) Report.”

As a result Judge Gibson granted the portion of the defendant’s motion to compel associated with production of the potentially altered email in native format and also ruled that “attorneys’ fees for this portion of Roles’s Motion to Compel are proper” and ordered the defendant to submit an affidavit detailing the attorneys’ fees she incurred in bringing her Motion to Compel.

So, what do you think?  Was it appropriate to order production of the email in native format?  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.

Judge Cuts Over $10M from Attorney Fees Due to Use of Temporary Attorneys for Document Review: eDiscovery Case Law

The use of temporary associates for document review (and billing at normal staff associate rates) caused a federal judge in Manhattan to reduce the request for attorney fees by $10.3 million in a settlement of a securities case against Bank of America.

According to The New York Law Journal (Judge Slashes $10M in Fees Over Firm’s Use of Temporary Associates, written by Scott Flaherty), while Southern District Judge William Pauley III signed off on a $335 million settlement between Bank of America and a certified class of investors, he questioned the request for $51.6 million in fees by plaintiffs lawyers at Pennsylvania-based Barrack, Rodos & Bacine.  One of Judge Pauley’s primary issues with the request was “the use of temporary associates for the bulk of document discovery at standard associate hourly rates”.

While acknowledging that the use of less-costly associates or temporary contract attorneys “is common practice”, Judge Pauley stated that he found “troublesome” the “practice of ‘gear[ing] up’ for discovery by hiring a large group of temporary ‘associates’ and billing them at the firm’s standard rates for what this Court must assume was first-cut document review.”  Barrack had hired sixteen temporary attorneys in 2013 and 2014 to work exclusively on the matter at a blended rate of $362.50 per hour.

Even though the attorneys were “full-time [Barrack] associate attorneys” who were eligible to participate in the firm’s health insurance and 401(k) plans, they had all since left the firm.  Judge Pauley observed that “hiring a group of temporary associates and billing them out at more than $350 per hour for work that is typically the domain of contract attorneys or paralegals seems excessive.”  As a result, he concluded “that a reduction in the requested fees is warranted to avoid a windfall to Barrack for charging more than $350 per hour for associates who are contract attorneys in all but name, while simultaneously overstaffing the substantive legal work with high-priced partners.”

Judge Pauley determined that “the simplest resolution is to reduce the lodestar multiplier from 1.5 to 1.2, resulting in attorneys’ fees of $41,340,835.80, or 12 percent of the Fund.”

The New York Law Journal provided a link to the ruling here.

So, what do you think?  Should law firms bill full associate rates for document review?  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

2016 eDiscovery Case Law Year in Review, Part 1

It’s that time again!  Time for our annual review of eDiscovery case law!  Once again, we had plenty of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI) and even a few landmark cases regarding technology assisted review.  So, as we have done for the last five years, let’s take a look back at 2016!

Last year, eDiscoveryDaily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  We’ve had over 500 lifetime case law posts, covering over 380 unique cases since our inception back in 2010.  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

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

ADMISSIBILITY AND PROPORTIONALITY

This year, there were more disputes than ever about data being produced and not being produced and whether the costs to do so are overly burdensome.  Here are sixteen cases related to admissibility of ESI and the proportionality for preserving and producing that ESI:

Motion to Compel Denied for Employees’ Personal Emails, Granted for Third Party Hosted Data: In Matthew Enterprise, Inc. v. Chrysler Group, LLC, 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.

Citing Proportionality Concerns, Court Grants Plaintiff’s Motion for Protective Order: In Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., Indiana Magistrate Judge Debra McVicker Lynch, citing proportionality concerns, granted the plaintiff’s motion for a protective order and ordered that the defendant was prohibited from obtaining the discovery sought by the defendant’s subpoenas from a major shareholder of the plaintiff.

Merely Stating That ESI Request Is Not Relevant Or Proportional Is Not Sufficient, Court Rules: In Digital Ally, Inc. v. Utility Associates, Inc., Kansas Magistrate Judge Gwynne E. Birzer granted the plaintiff’s motion to compel discovery, overruling the defendant’s objections that the request was neither relevant nor proportional to the issues in this case, because the defendant “has not expounded on its objections to relevance or proportionality under Fed. R. Civ. P. 26(b)(1)”.

Plaintiffs Ordered to Produce a Copy of Access Database for Forensic Analysis: In Thorne Research, Inc. et. al. v. Atlantic Pro-Nutrients, Inc., Utah Magistrate Judge Paul M. Warner determined that, because the parties had competing affidavits regarding whether a Microsoft Access database created by the plaintiffs’ co-inventor stores metadata and that metadata (if present) was clearly relevant, the defendant should be allowed the opportunity to conduct a forensic analysis as to whether or not the metadata exists in the native format of the Access database.

Court Limits Scope of Search Terms Requested by Plaintiff: In AVM Technologies, LLC v. Intel Corp., Delaware Magistrate Judge Mary Pat Thynge granted in part the plaintiff’s request for the defendant to perform a database search of four terms and their synonyms, but limited the scope of that search to one specific defendant database, not the variety of sources requested by the plaintiff to be searched.

Defendant Ordered to Issue Litigation Hold, Respond to Discovery Requests: In Bruner v. American Honda Motor Co., Alabama Magistrate Judge Katherine P. Nelson granted the plaintiffs’ motion to compel response to discovery requests for email, to perform additional searches, and to implement a litigation hold on the email accounts for relevant individuals to the case.

Court Orders Non Party to Preserve Some, But Not All, Information Requested by Plaintiff: In Swetlic Chiropractic & Rehabilitation Center, Inc. v. Foot Levelers, Inc., et. al., Ohio Magistrate Judge Elizabeth A. Preston Deavers ruled that the plaintiff had satisfied its burden to demonstrate a real danger that relevant evidence in a non-party’s possession would be destroyed absent a court order and ordered WestFax, the non-party, “to preserve any transmission report or other documents and ESI that identify fax numbers that received Defendants’ advertising faxes.”  However, noting that the requested scope of the preservation order “appears overly broad”, she permitted WestFax to file objections to the Order within 14 days if unable to extrajudicially resolve any such objection with the plaintiff.

Court Determines Granting Defendant’s Motion to Request Overseas Documents is ‘Futile’: In Al-Ameri et. al. v. Johns Hopkins Hospital, Maryland Magistrate Judge Stephanie A. Gallagher denied the defendant’s motion to compel on the basis that compelling the discovery sought would be futile.

Court Settles Dispute Between Parties on Number of Custodians to Search and Produce: In Family Wireless #1, LLC et. al. v. Automotive Technologies, Inc., Connecticut Magistrate Judge Sarah A. L. Merriam partially granted the plaintiff’s motion to compel the defendant to search and produce ESI from additional custodians, finding that “three of the six proposed custodians’ files are likely to include information relevant to this matter, and defendant has not met its burden of showing that inclusion of these three individuals would be unduly burdensome”.

Court Rejects Plaintiff’s Request for Fee Reimbursement in Responding to Motion: In Gade v. State Farm Mutual Automobile Insurance Co., Vermont Chief District Judge Christina Reiss denied the plaintiff’s motion for an order requiring the defendant to pay expenses and fees that she incurred in opposing the defendant’s motion to compel production of an Excel spreadsheet from the plaintiff’s expert.

Court Grants Discovery on Individual Defendants’ Personal Computers and Email: In Sunderland v. Suffolk County et. al., New York Magistrate Judge A. Kathleen Tomlinson, determining that the plaintiff’s request for individual defendants to search for and produce certain documents from their personal computers and email accounts was not “unduly intrusive or burdensome” because the request was limited in time frame and the parties had agreed to search terms, granted the plaintiff’s motion to compel.

Court Rules Government’s Use of Stingray to Locate Suspect Was Unwarranted: In United States v. Lambis, New York District Judge William H. Pauley, III granted the defendant’s motion to suppress evidence obtained by law enforcement agents in connection with a search of his apartment because the apartment was located via the use of a “Stingray” cell-site simulator to identify the location of the defendant’s phone without a warrant.

Court Rejects Discovery for Additional Time Period, But Grants Additional Discovery on Termination Plan: In Blodgett et. al. v. Siemens Industry, Inc., 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.

Defendant Not Required to Produce All Documents Responsive to Search Terms: In Bancpass, Inc. v. Highway Toll Administration, LLC, Texas Magistrate Judge Andrew W. Austin (no relation) denied the plaintiff’s Motion to Enforce Discovery Agreements with regard to the plaintiff’s request for the defendant to produce all non-privileged documents responsive to search terms agreed to over email.

If Plaintiff Wants Discovery on Defendant’s Backup Tapes, Court Rules He Must Pay for Them: In Elkharwily v. Franciscan Health Sys., Washington District Judge Robert J. Bryan, finding that the defendant had met its burden to show that retrieving electronically stored information on backup tapes “would result in an undue burden and cost to Defendant”, that the plaintiff “has not met his burden to show good cause” to overcome the defendant’s undue burden and cost argument, and that “the archived emails are ‘discoverable’ under Fed. R. Civ. P. 26(b)(1)”, ordered the defendant to “facilitate access to the discovery”, but “only at Plaintiff’s expense, payable in advance”.

Court Orders Forensic Examination of Key Custodian Computers: In Davis v. Crescent Electric Company et. al., South Dakota District Judge Lawrence L. Piersol ruled that a non-disclosure agreement would sufficiently protect any and all confidential and/or privileged information of the defendant that may be uncovered during the forensic examination for key custodians and that the information being requested by the plaintiff was relevant and not overly broad.

We’re just getting started!  Tomorrow, we will cover cases related to cooperation, disputes about discovery, eDiscovery cost reimbursement, form of production disputes and the ubiquitous Apple v. Samsung case.  Stay tuned!

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

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

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

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

Defendant Ordered to Produce Source Code Responsive to Agreed Upon Search Protocol: eDiscovery Case Law

In ACI Worldwide Corp. v. MasterCard Technologies, LLC et. al., No. 14-31 (D. Nebraska, Oct. 27, 2016), Nebraska Magistrate Judge F.A. Gossett granted the plaintiff’s Motion to Compel Production of the defendant’s Full Source Code in part, “to the extent there are any files that MasterCard has not produced responsive to the parties’ previously established joint Search Protocol.”

Case Background

In this action where the plaintiff alleged the defendants violated a licensing agreement and disclosed confidential information regarding the plaintiff’s software, the disclosure of the defendant’s source code had been the subject of ongoing discovery disputes for more than a year.  In an order dated July 13, 2015 (and covered by us here), the court found the plaintiff had shown the relevance and a particular need for electronically stored information (“ESI”) constituting or containing the plaintiff’s proprietary information, but, because the court did not have the expertise necessary to determine the best way to retrieve the requested information, the parties were directed to devise a joint search protocol or methodology to retrieve the information requested by the plaintiff; otherwise, the court would appoint a special master.

The parties then generally agreed to a search protocol, but were unable to reach a full agreement on the search terms to be used.  In August 2015, the court ordered the defendant to run the plaintiff’s “Counterproposal Search Protocol” and produce the search results no later than September 16, 2015; after the defendant’s objections were overruled, the parties subsequently conferred and agreed that the defendant would run the Search Protocol and produce the requested materials by October 9, 2015. The defendant continued to hesitate to produce actual source code without an additional protective order, and after another motion to compel by the plaintiff, the court again ordered the defendant to run the Search Protocol and produce the requested information, which included source code. In February 2016, the court denied the defendant’s motion for partial reconsideration, but stated it would entertain inclusions of additional provisions to the protective order in place, if the parties agreed. In March, the court adopted the parties’ joint protective order for source code.

Ultimately, the plaintiff filed the current motion to compel disclosure of the entire source code, claiming that the defendant had not produced all items identified by the Search Protocol, stating production of the entire source code was warranted due to “MasterCard’s history of refusing to produce clearly relevant source code” and alleging that the source code produced to date supported its allegations of misappropriation. The defendant counters that the remedy is the production of missing files pursuant to the Search Protocol, and not the production of the entire source code.

Judge’s Ruling

Noting its previous emphasis that “The Federal Rules of Civil Procedure . . . emphasize that electronic discovery should be a party-driven process”, Judge Gossett ruled that:

“ACI’s request now for the entire source code to the MDS is not proportional to the needs of the case, would include information irrelevant to ACI’s claims, and would defeat the purpose of the protracted efforts by the parties to reach a compromise regarding production of MDS source code…To the extent MasterCard’s production has been deficient, the remedy is not to compel the production of its entire source code for the MDS. Rather, the court will compel MasterCard to produce only the source code retrieved using the parties’ joint search protocol that MasterCard has not yet produced.”

So, what do you think?  Given the defendant’s numerous delays in producing source code, should the court have granted the plaintiff’s motion in total?  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 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.

Here’s One Group of People Who May Not Be a Fan of Big Data Analytics: eDiscovery Trends

Most of us love the idea of big data analytics and how it can ultimately benefit us, not just in the litigation process, but in business and life overall.  But, there may be one group of people who may not be as big a fan of big data analytics as the rest of us: criminals who are being sentenced at least partly on the basis of predictive data analysis regarding the likelihood that they will be a repeat offender.

This article in the ABA Journal (Legality of using predictive data to determine sentences challenged in Wisconsin Supreme Court case, written by Sony Kassam), discusses the case of 34-year-old Eric Loomis, who was arrested in Wisconsin in February 2013 for driving a car that had been used in a shooting.  He ultimately pled guilty to eluding an officer and no contest to operating a vehicle without the owner’s consent. Loomis, a registered sex offender, was then sentenced to six years in prison because a score on a test noted he was a “high risk” to the community.

During his appeal in April, Loomis challenged the use of the test’s score, saying it violated his right to due process of law because he was unable to review the algorithm and raise questions about it.

As described in The New York Times, the algorithm used is known as COMPAS (Correctional Offender  Management Profiling for Alternative Sanctions).  Compas is an algorithm developed by a private company, Northpointe Inc., that calculates the likelihood of someone committing another crime and suggests what kind of supervision a defendant should receive in prison. The algorithm results come from a survey of the defendant and information about his or her past conduct.  Company officials at Northpointe say the algorithm’s results are backed by research, but they are “proprietary”. While Northpointe does acknowledge that men, women and juveniles all receive different assessments, the factors considered and the weight given to each are kept secret.

The secrecy and the use of different scales for men and women are at the heart of Loomis’ appeal, which an appellate court has referred to the Wisconsin Supreme Court, which could rule on the appeal in the coming days or weeks.

Other states also use algorithms, including Utah and Virginia, the latter of which has used algorithms for more than a decade.  According to The New York Times, at least one previous prison sentence involving Compas was appealed in Wisconsin and upheld.  And, algorithms have also been used to predict potential crime hot spots: Police in Chicago have used data to identify people who are likely to shoot or get shot and authorities in Kansas City, Mo. have used data to identify possible criminals.  We’re one step closer to pre-crime, folks.

So, what do you think?  Should algorithms that have a significant effect on people’s lives be secret?  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.