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This is a Non-Political Post: eDiscovery Trends

At the outset, I feel that I should state that, given that this post is about the Hilary Clinton emails and the FBI handling of them.

In his latest post (E-Discovery Lessons from the Huma Abedin E-Mails), Craig Ball takes a look at the eDiscovery implications regarding the handling of the Huma Abedin emails and his distaste for FBI Director James Comey’s handling of them.  Craig states: “‘Reckless’ doesn’t begin to describe Comey’s self-indulgent decision to release information about a situation he clearly does not yet grasp, in a manner that elevates Jim Comey above longstanding Justice Department policy and the integrity of a Presidential election.”

Nonetheless, regardless of political leanings, Craig notes that his post “will not be a political screed, so while I always welcome critical and substantive comments on anything I write, please hew to the e-discovery aspects of same.  Please.”  Of course, at least one commenter (so far) still questioned the political intent of his post, characterizing Craig’s comments as “partisan”.  Not surprisingly, there were already 20 total comments on Craig’s post in less than a full day (including mine).

Craig’s post, and the comments back and forth are well worth reading.  One of the eDiscovery discussion points related to the cross-collection correlation of email messages – which Craig wrote about here and we covered here, with back and forth discussion between Craig and our CTO, Bill David – and the challenge of doing that when the Clinton emails were produced to the State Department in paper (yes, paper) format.  There was also a discussion as to whether the Clinton claim that “more than 90% of those emails should have already been captured in the State Department’s email system” was true and could have eliminated most of the email matching effort to determine whether there is significant new information in the Abedin emails that bear investigating.

And, to think this latest round was initiated because of our social media gone wrong poster child, Anthony Weiner.  Some people never learn to think before they hit send.

Bill Dimm provided a link to Hilary Clinton’s fact sheet regarding the emails in one of his comments, which answered the question as to why Clinton produced printed copies to the State Department instead of ESI, noting that the Foreign Affairs Manual of the State Department provides this guidance with regard to how to preserve e-mail records:

“Until technology allowing archival capabilities for long-term electronic storage and retrieval of E-mail messages is available and installed, those messages warranting preservation as records (for periods longer than current E-mail systems routinely maintain them) must be printed out and filed with related records.”  [5 FAM 443.3].

So, our government is just as behind as the rest of the legal profession (if not more) with regard to production formats.  Big surprise.

We’ve already discussed one area where eDiscovery might impact the coming election.  Maybe this is another.

So, what do you think?  Are you sick of hearing about the election yet?  Me too!  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

Searching Only File Names is Not the “Safe Way” to Avoid Sanctions: eDiscovery Case Law

See what I did there?… :o)

In Rodman v. Safeway, No. 11-cv-03003-JST (N.D. Cal., Oct. 6, 2016), California District Judge Jon S. Tigar ordered the defendant to pay plaintiff’s Class Counsel $688,646 as a discovery sanction under Rule 26(g), ruling that “failure to search within the contents of the legacy drive constituted an unreasonable inquiry”, but denied without prejudice the plaintiff’s request for a negative jury instruction.

Case Background

In this certified class action for breach of contract, the Court previously granted the plaintiff’s motion for partial summary judgment that the defendant breached its contract with class members who registered to shop online after 2006 “by charging higher prices for groceries on its online Safeway.com delivery service than it charged in the stores where the groceries were selected.” After the Court denied the plaintiff’s motion for partial summary judgment regarding pre-2006 liability, only one issue remained to be tried: whether class members who registered for the delivery service prior to 2006 had agreed to the same contract as class members who registered after 2006.

Trial was scheduled to begin on October 6, 2015. Approximately seven days before that date, the defendant produced ten highly relevant documents related to its pre-2006 terms and conditions. The documents were found on a “legacy” computer drive by the defendant’s Director of Marketing, Steve Guthrie, who was reviewing that drive in anticipation for trial. Apparently, Guthrie’s initial search of the legacy drive did not involve a search within the contents of the files, but rather merely searched for file names within the legacy drive. Guthrie did not find the ten documents-in-question until approximately ten days before trial – over five months after fact discovery closed on April 24, 2015. Ultimately, the parties stipulated that the Court’s prior summary judgment orders were equally applicable to Class members who registered before January 1, 2006 and in November 2015, the Court issued a Judgment in favor of the certified class in the amount of $30,979,262 in damages and $10,905,505 in prejudgment interest, for a total of $41,884,767. The defendant appealed.

On April 6, 2016, Plaintiff filed a motion for discovery sanctions under Rule 26(g) based primarily on the defendant’s “false and inaccurate statements” in response to interrogatories and document requests “concerning the non-existences of documents reflecting historic copies of” the defendant’s pre-2006 terms and conditions. The Court held a hearing on the motion on August 25, 2016.

Judge’s Ruling

Judge Tigar disagreed with the defendant that its inquiry was unreasonable, stating “Although there is no indication of bad faith in Safeway’s inability to find the ten responsive documents during fact discovery, the Court concludes that Safeway’s initial search of the legacy drive was unreasonable”, giving three reasons that the inquiry was unreasonable:

  1. There was “no indication that Safeway’s counsel guided or monitored Mr. Guthrie’s search of the legacy drive in any significant way”;
  2. There was no evidence that Guthrie had any experience searching large repositories; and
  3. The evidence indicated that the search was objectively unreasonable.

Ultimately, Judge Tigar concluded that the defendant’s failure to search within the contents of the legacy drive constituted an unreasonable inquiry and that the defendant offered no substantial justification for its violation of Rule 26(g). The plaintiff requested attorneys’ fees totaling over $1 million, but Judge Tigar reduced that request by one-third, resulting in a fee award of $688,646. Judge Tigar also denied without prejudice the plaintiff’s request for a negative jury instruction, but indicated that the plaintiff may renew the request for a negative jury instruction should the Ninth Circuit remand this case for trial.

So, what do you think? Should the lack of finding of bad faith have resulted in a different outcome? 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 Denies Defendant’s Motion for Production of Documents for In Camera Review: eDiscovery Case Law

In Portland Pipe Line Corp. et. al. v. City of South Portland et. al., No. 15-00054 (D. Maine, Sept. 8, 2016), Maine Magistrate Judge John H. Rich, III denied the defendants’ motion to compel the production of documents withheld or redacted on claims of attorney-client privilege by the plaintiff, finding that the plaintiffs “undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor” and then undertaking a “painstaking manual review to verify the privileged status of every ESI document marked as privileged”.

Case Background

In this case where the plaintiff sued the defendant seeking declaratory and injunctive relief regarding an ordinance prohibiting the loading of crude oil, the defendant brought instant disputes to the court’s attention regarding perceived inadequacy with the plaintiff’s privilege log.  The defendants indicated that they diligently attempted to resolve the instant disputes, emailing letters to the plaintiffs on August 10 and 22, 2016, to which the plaintiffs, in letters emailed on August 15 and 24, 2016, “offered no meaningful response”, forcing them to take the issue to the court.  On August 10, the defendants also advised that, absent further detail, they suspected that the privilege was improperly claimed as to four categories of documents and eventually demanded that the plaintiffs produce all documents withheld on the first three categories within the remaining three categories for the court’s in camera review in determining whether to order that additional detail be provided in the ESI log or documents be produced.

The plaintiffs countered that the defendants pursued a “dilatory and burdensome approach” and raised no concern about the adequacy of a similar hard-copy document privilege log that the plaintiffs had produced on July 14, and that they also failed to define the scope and nature of their complaints about the ESI privilege log sufficiently to enable a particularized response, asserting that the defendants, as the parties pressing discovery disputes, bore the burden of defining the scope of those disputes in such a manner as to permit the plaintiffs an adequate opportunity to respond and the court to rule.  They also flatly declined to undertake a wholesale review of their privilege log, decrying the undue burden of the request in light of the costly and time consuming efforts already taken to create the log and standing by both its adequacy and the viability of their claims of privilege.

Judge’s Ruling

With regard to the argument over the production of the privilege log and noting that the defendants waited until August 30 to seek the court’s aid, Judge Rich stated that “The plaintiffs have the better argument.”  In denying the defendant’s motion, he stated:

“I appreciate that the defendants cannot be certain, in the absence of the requested in camera review, whether documents have or have not been properly withheld. However, I take into consideration the plaintiffs’ counsel’s representation, as officers of the court, that the plaintiffs undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor and then, following the production of more than 100,000 pages of ESI to the defendants on July 29, immediately undertaking a painstaking manual review to verify the privileged status of every ESI document marked as privileged and draft appropriate descriptions for the ESI log. The plaintiffs’ counsel further represent that the plaintiffs executed targeted searches of documents as to which privilege had been claimed to identify those less likely to have been privileged. As a result of those efforts, when the plaintiffs produced their ESI log on August 2, they not only made new claims of privilege as to previously produced documents but also withdrew claims of privilege as to a number of other documents.”

So, what do you think?  Should the in camera review have been allowed?  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

If Plaintiff Wants Discovery on Defendant’s Backup Tapes, Court Rules He Must Pay for Them: eDiscovery Case Law

In Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB (W.D. Wash. July 29, 2016), 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”.

Case Background

In this case, the plaintiff sought production of all emails and text messages concerning the plaintiff between employees, agents or attorneys of the defendant as well as other emails related to Group Health, the National Practitioners Data Bank [NPDB] or any former employer of the plaintiff.

The defendant objected to the request on the grounds that it was overbroad and burdensome, indicating that it did not have an email archiving system, but instead archived emails on a monthly basis on physical backup tapes, as part of a disaster relief program. The defendant indicated that in order to retrieve all responsive discovery, it would need to retrieve, restore, and review each backup tape, which at 14 hours per tape would require 1,400 hours in labor and $157,500 in costs.  The defendant also indicated that it had already searched the live email accounts of several custodians, was producing non-privileged responsive documents that it had found in those searches and referred to the emails previously produced with the defendant’s initial disclosures.

In response, the plaintiff filed a Motion to Compel Discovery Responses, indicating in a declaration that, as soon as July 2013, the plaintiff notified the defendant’s attorney of his intent to file a lawsuit (the defendant’s attorney, in his own declaration, stated he had no recollection of those conversations).

Judge’s Ruling

While acknowledging that the emails sought by the plaintiff were discoverable, Judge Bryan stated that “Defendant has met its burden to show that retrieving the electronically stored information would result in an undue burden and cost to Defendant.”  Judge Bryan also found that the plaintiff “has not met his burden” to show good cause, stating: “Tellingly, Plaintiff does not name individuals that Plaintiff believes exchanged emails about Plaintiff, nor does Plaintiff describe suspected content of the emails. Plaintiff does not even represent with any surety that responsive emails exist. Because Plaintiff has not met his burden for good cause, compelling production of the discovery at expense to Defendant is not warranted.”

However, because the archived emails were “discoverable” under Fed. R. Civ. P. 26(b)(1), Judge Bryan ruled that “upon a request by Plaintiff, Defendant should facilitate access to the discovery, but should do so only at Plaintiff’s expense, payable in advance. Plaintiff should be responsible for all costs, such as retrieving and restoring the backup tapes to an accessible format, except for costs relating to Defendant’s review of the information for privileged material (which is like any other discovery request, e.g., the live emails)…Defendant should not otherwise be compelled to produce the archived emails, and to that extent Plaintiff’s motion should be denied.”

So, what do you think?  Should the defendant have been required to bear the cost of restoring the backup tapes for 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.

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

Defendant Not Required to Produce All Documents Responsive to Search Terms: eDiscovery Case Law

Remember earlier this week, when we once again discussed the perils of not checking your wildcard terms before agreeing to them?  This case law summary is a prime example of that.  Perhaps more narrowed search terms would have reduced the review required.  Frankly, I’m surprised more documents weren’t retrieved.

In Bancpass, Inc. v. Highway Toll Administration, LLC, No. A-14-CV-1062-SS (W.D. Tex. July 26, 2016), 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.

Case Background

In this defamation case between two competing highway toll mechanism companies, the parties, negotiating over email, agreed to produce ESI responsive to the following search terms:

  • Smartphone /50 toll!
  • Smartphone /50 threat
  • Smartphone /10 app!
  • Phone! /10 app!
  • Double /10 bill
  • Geotoll

Slash followed by a number means within that number of words (e.g., /50 = within 50 words).  The ! after a term indicates a wildcard term.

*My own commentary: See terms 3 and 4 above?  They call for the phone related terms within 10 words of any word that begins with “app” (because they’re looking for phone applications or apps, got it?).  As you can see here, there are 306 words in the English language that begin with “app”.  Apparently, it appears that the parties (one of whom may someday be an appellant) appreciated the thought that appending a wildcard after “app” would be an appropriate application of the wildcard in that approach.  OK, a bit extreme, but you get the point – don’t get wild with wildcards!  A simple “(application! OR app OR apps)” would have saved a lot of false hits.

Anyway, the plaintiff stated that it believed the parties agreed that “all non-privileged documents responsive to the additional search terms will be produced,” which it understood to mean that every non-privileged document the search turned up would be produced, regardless of whether it had anything to do with the parties’ dispute and the plaintiff did so in its production.  Conversely, the defendant produced only those documents that it determined were relevant to the case and withheld the rest, which the plaintiff argued was a violation of the agreement.  In response, the defendant stated that it ran the searches as requested, but that the search terms turned up over 20,000 non-privileged but also non-responsive documents. After de-duplicating the search results against previous production and identifying clearly irrelevant documents, the defendant independently reviewed the remaining 3,489 documents for responsiveness and privilege, ultimately producing 34 documents captured by the agreed search terms that were both responsive to the plaintiff’s discovery requests and were non-privileged.

Judge’s Ruling

Ruling on this issue, Judge Austin stated:

“If the Court were to construe the parties’ email correspondence on this topic to constitute a contract, it is likely that HTA’s actions would amount to a breach. The Court’s reading of the e-mail chain is that the parties agreed to produce all of the results of the searches save privileged documents. But the parties’ e-mail exchange is not a contract. Rather, it was a means to simplify and limit the scope of production responsive to BancPass’s requests for production 6, 11, 29, 38, 39, and 45. Having reviewed the attached affidavits detailing HTA’s search and review process there is no reason to believe that HTA has withheld documents it was obligated to produce. Nor is it clear that additional searches with the identified search terms would produce more documents responsive to BancPass’s requests for production. Accordingly, as to the search terms, BancPass’s motion is denied.”

So, what do you think?  Should the defendant have been required to produce all of the responsive, non-privileged documents per the email discussion?  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.

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

Court Compels Plaintiff to Provide Social Media Account and Activity Data: eDiscovery Case Law

In Waters v. Union Pacific Railroad Co., No. 15-1287-EFM-KGG (D. Kan. June 21, 2016), Kansas Magistrate Judge Kenneth G. Gale granted the defendant’s motion to compel the plaintiff to produce account information associated with his social media accounts as well as postings from the dates he missed work in conjunction with his injury claims against the defendant.  Judge Gale also granted most of the components of the plaintiff’s motion to compel against the defendant for various discovery requests.

Case Background

In this personal injury case against the plaintiff’s former employer, both parties filed motions to compel against the other.  The defendant asked for the plaintiff to list the names/account names “associated with [his] Facebook and Twitter accounts” and also initially asked for a broad category of information relating to the plaintiff’s social media presence.  After the plaintiff objected, the parties conferred and the defendant limited the scope of its requests to “all social network postings, messages, and photographs that he sent or received” on the work dates he claims he missed as a result of his injuries.  The plaintiff argued that the defendant’s requests for social media data were overly broad, irrelevant, and not proportional to needs of the case.

The plaintiff’s motion to compel related to discovery requests regarding prior injuries suffered by the defendant’s employees, notifications regarding defects or hazards on the defendant’s locomotives, prior notification of safety hazards or injuries relating to water on walkways, statements regarding the plaintiff’s claims, photos of the locomotive in question, and inspection and maintenance reports for the subject locomotive.  The defendant logged various objections to those requests.

Judge’s Ruling

In addressing the defendant’s motion to compel, Judge Gale stated:

“The Court finds that Defendant’s requests are relevant on their face. As stated above, unless a request is improper on its face, ‘the party asserting the objection has the duty to support its objections.’  Plaintiff has failed in this regard. To the contrary, the Court finds that the requests are highly relevant on their face as they seek evidence which could be germane to the extent of Plaintiff’s injuries and damages and state of mind.

Plaintiff has also failed to establish the overbreadth of Defendant’s requests. Following attempts to confer with Plaintiff, Defendant willingly narrowed the scope of the requests at issue. The Court does not agree that the access Defendant seeks to Plaintiff’s social media postings and messages is ‘unfettered’ when Defendant has limited the temporal (i.e. days Plaintiff missed work) and/or substantive subject matter scope of the requests”.

As a result, Judge Gale granted the defendant’s motion to compel.

Not all news was bad for the plaintiff; however, as Judge Gale granted his motion to compel regarding prior injuries and notifications, statements regarding the plaintiff’s claims and inspection and maintenance reports for the subject locomotive.  Only the plaintiff’s request for photos of the locomotive in question was denied.

So, what do you think?  Was the scope of the defendant’s request appropriate or was it overbroad?  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.

Court Grants Discovery on Individual Defendants’ Personal Computers and Email: eDiscovery Case Law

In Sunderland v. Suffolk County et. al., No. 13-4838 (E.D.N.Y., June 14, 2016), 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.

Case Background

In this case where a transgender prison inmate sued the defendants claiming they acted “with deliberate indifference” to serious medical needs by denying hormone therapy for gender dysphoria, the plaintiff served discovery requests on the both the county and the individual defendants seeking documents and correspondence that contained certain search terms related to gender dysphoria, gender identity, transgender status and sexual preference. The parties agreed upon the search terms, but the defendants refused to conduct searches on individual personal computers and email. The plaintiff filed a Motion to Compel, which pointed out that the plaintiff had sued the individual defendants in their individual capacities, not their official capacities as medical personnel employed by the County.

Judge’s Ruling

Noting that the information requested by the plaintiff “falls within the broad scope of relevant discovery under Federal Rule of Civil Procedure 26(b) in light of Plaintiff’s allegations against the Individual Defendants and her Monell claim against the County”, Judge Tomlinson concluded that “Plaintiff has the right to pursue emails and other correspondence the Individual Defendants may have created/saved on their personal computers or sent from their personal email accounts which reference Plaintiff or discuss issues related to gender dysphoria.”

Judge Tomlinson noted that “to the extent such documents exist on the Individual Defendants’ personal computers, they may contain information going to bias or motivation which may show why a personal computer was used for such communications, including information which may support Plaintiff’s claims of deliberate indifference against the Individual Defendants.”  She also indicated that she “does not consider the requested discovery unduly intrusive or burdensome”, noting that the request “is limited to an approximate five-year time frame running from September 8, 2009 to January 3, 2014, which the Individual Defendants have not objected to in their opposition to Plaintiff’s motion. It also appears that the parties have agreed upon the search terms to be used.”  As a result, Judge Tomlinson granted the plaintiff’s motion to compel discovery from the individual defendants’ personal computers and email accounts.

So, what do you think?  Was the plaintiff entitled to discovery from the individuals’ computers and email accounts?  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 Rejects Plaintiff’s Request for Fee Reimbursement in Responding to Motion: eDiscovery Case Law

In Gade v. State Farm Mutual Automobile Insurance Co., No. 14-00048 (D. Vermont, June 6, 2016), 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.

Case Background

In this personal injury case where the plaintiff sued after the defendant denied her uninsured and underinsured motorist benefits claims, the defendant deposed the plaintiff’s biomechanical expert (John Smith).  The defendant asked for the expert to bring his files to the deposition, but did not examine the files before or during the deposition, instead requesting a complete copy of the expert’s file afterward, including his calculations.  In response, the plaintiff produced a copy of the expert’s file, including eight pages of data and calculations in PDF format.

On three different occasions, the defendant requested the expert’s files in Excel format, to see the underlying calculations and inputs on which the expert relied. During a September 2015 telephone conference, the plaintiff advised the defendant that if the expert’s files existed in Excel format, they would be produced; however, the plaintiff failed to do so, even after three additional written requests for those files.  Finally, the plaintiff responded that she would not produce the expert’s files in Excel format because his files, including his “unredacted calculations” and “the applicable formulas” had previously been produced in PDF format, inviting the defendant to cite “some applicable rule or decision that allows a party to compel another party’s expert to produce work-product files in a particular format”.

Ultimately, the defendant filed a motion to compel, which the plaintiff opposed; however, the parties, after sharing additional information, eventually agreed that motion to compel was moot. However, the plaintiff then sought compensation from the defendant for her attorneys’ fees incurred in opposing the motion, alleging that Defendant did not properly meet and confer as required by the rules.

Judge’s Ruling

After noting that the plaintiff “complied with her duty of disclosure and Defendant properly withdrew its motion to compel”, Judge Reiss turned her attention to the question of whether the defendant complied with Local Rule 26, which requires the movant to “confer[] with opposing counsel in a good faith effort to reduce or eliminate the controversy or arrive at a mutually satisfactory resolution.”  Judge Reiss noted that the defendant “made six informal written requests for Mr. Smith’s files in Excel format from July 28, 2015 through October 13, 2015” and “also made an oral request for the information during a September 10, 2015 telephone call, after which Plaintiff initially stated that she would produce Mr. Smith’s files in Excel format, but later declined to do so.”

While admitting that “the better practice would have been for Defendant to make a formal request Mr. Smith’s files and underlying calculations prior to his deposition”, Judge Reiss ruled that “Defense counsel’s repeated attempts to obtain Mr. Smith’s files in Excel format prior to seeking court intervention, in conjunction with its affidavit supporting the motion to compel, satisfy the requirements of Local Rule 26(d)(2).”  As a result, determining that “it would be unreasonable and unfair to require” the defendant to pay fees to respond to a motion to compel that “arguably should have been unnecessary”, Judge Reiss ruled that “an award of sanctions, expenses, and fees is not warranted in this case.”

So, what do you think?  Did the Defendant go far enough to meet and confer on the issue?  Please share any comments you might have or if you’d like to know more about a particular topic.

New Time!  Just a reminder that I will be moderating a panel at The Masters Conference New York City 2016 IoT, Cybersecurity and Social Media Conference on Monday, July 11 (we covered it here) as part of a full day of educational sessions covering a wide range of topics.  CloudNine will be sponsoring that session, titled Faster, Cheaper, Better: How Automation is Revolutionizing eDiscovery at 8:30am, not 4:15pm.  The early bird catches the knowledge.  :o)  Click here to register for the conference.

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.