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Withheld Evidence Leads to New Trial, Resignation of Senior City Attorney: eDiscovery Case Law

This seems to be our week for verdicts being set aside due to alleged discovery violations by parties involved in the case or by the attorney representing those parties.  Thanks to Connie Scorza for the tip about this case!

In Colyer v. City of Chicago, No. 12 C 04855 (N.D. Ill., Jan 4, 2016), Illinois District Judge Edmond E. Chang granted in part the plaintiff’s post trial motion, denying the plaintiffs’ request for a directed verdict, but granting their request for a new trial after it was discovered that the defendants’ attorney had “intentionally” withheld the recording of a police dispatcher’s description of a possible suspect that was key in determining whether Chicago police officers acted with excessive force in killing a suspect in a traffic stop.  The plaintiffs also were awarded their attorneys’ fees and costs expended on preparing for the first trial, conducting the trial itself, and conducting the post-trial discovery and briefing.

Case Background

On January 7, 2011, Chicago Police Officers Raoul Mosqueda and Gildardo Sierra pulled over an Oldsmobile Aurora in Chicago’s Englewood neighborhood driven by Darius Pinex. The officers stated that they decided to stop the car because they thought it matched the description of an Aurora that other officers had unsuccessfully tried to pull over earlier that night. Mosqueda claimed he heard the description of the Aurora over his police-car radio from a dispatcher in the Office of Emergency Management and Communications (OEMC).  Mosqueda claimed during the litigation that the OEMC call warned that the Aurora was wanted for a shooting or that there might have been a gun in the car.  During the resulting confrontation (the details of which were disputed by the parties involved), Pinex was killed.  Nine months later, Pinex’s estate filed suit against Mosqueda, Sierra and the City of Chicago, alleging excessive force in violation of the Fourth Amendment.

During the case, the plaintiffs asked for the recording of what Mosqueda claimed to have heard over the radio, as well as any documents related to the recording, but the discovery responses that they did get led them to believe that no recording of the call or documents were available. From that, the plaintiffs reasonably concluded that Mosqueda was lying, had actually heard nothing, and the officers executed an overly aggressive traffic stop, so they prepared their case accordingly.

However, on the fourth day of trial, it was revealed that there was an OEMC record showing the potential availability of a recording of the call the officers heard that night, and soon afterwards, it was revealed that the recording was in fact still available, which did not mention that the Aurora had a gun or that the car was wanted for a shooting.  The plaintiffs’ counsel had to adjust their trial presentation strategy to account for the existence of the recording, but, ultimately, the jury found in favor of the defendants.  Because the recording wasn’t made available earlier, the plaintiffs moved for a directed verdict in their favor or, short of that, a new trial along with attorneys’ fees and costs.

Judge’s Ruling

In order to determine the extent of the discovery violation and the propriety of the relief sought, the Court authorized post-trial discovery.  As Judge Chang stated after the post-trial discovery was conducted:

“That discovery has shown two things. First, it has shown that Jordan Marsh, one of the City Law Department lawyers representing the officers and the City of Chicago, learned about the OEMC record before trial and knew that the recording might still be available. The Court has no choice but to conclude, based on the record evidence, that Marsh intentionally withheld this information from the Court, from Plaintiffs, and even from his own co-counsel. Second, post-trial discovery has shown that, in response to Plaintiffs’ discovery request seeking the recording and related documents, Thomas Aumann, another Law Department lawyer for the officers and the City of Chicago, failed to make a reasonable inquiry, as required by the discovery rules, to search for the recording and responsive documents. Aumann only looked for documents in a Law Department file, but he had no idea how the documents in the file were gathered, from what sources, or even who gathered them.”

Regarding Marsh’s “misconduct”, Judge Chang noted that “the Court has no choice but to conclude that Jordan Marsh intentionally concealed from Plaintiffs and from the Court the existence of the OEMC record memorializing that Maderak had sent Sergeant Lamperis CDs containing the Zone 6 Audio. After hiding that information, despite there being numerous times when the circumstances dictated he say something about it, Marsh said nothing and even made misleading statements to the Court when the issue arose. This misconduct justifies a new trial and attorneys’ fees and costs from February 19, 2015—the date that he learned of the OEMC record and the Zone 6 Audio’s potential availability—through the post-trial discovery and briefing.”

After Judge Chang’s ruling, Marsh resigned from his position later that day.

So, what do you think?  Should an attorney who intentionally withholds evidence in discovery be disbarred for that action?  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.

2015 eDiscovery Case Law Year in Review, Part 1

Did you think we forgot?  No, we didn’t forget!

It’s time for our annual review of eDiscovery case law!  Once again, we had more than our share of sanctions granted and denied, as well as disputes over production formats, admissibility of electronically stored information (ESI) and even a dispute regarding whether contract review attorneys can receive overtime pay!  So, as we have done for the last four years, let’s take a look back at 2015!

Last year, eDiscoveryDaily published 89 posts related to eDiscovery case decisions and activities over the past year, covering a record 72 unique cases!  We’ve covered over 300 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

As always, there are numerous disputes about data being produced and not being produced and whether the costs to do so are overly burdensome.  Here are seven cases related to admissibility, the duty to preserve and produce ESI and the proportionality for preserving and producing that ESI:

Court Denies Plaintiff’s Motion to Compel the Defendant to Assist with Access to its Data: In SFP Works, LLC v. Buffalo Armory, Michigan Chief District Judge Gerald E. Rosen, agreeing with the defendant that the plaintiff’s motion was untimely, and that Plaintiff “unreasonably declined” several options proposed by the defendant for accessing the data that was produced to it by the defendant, denied the plaintiff’s motion to compel access to operational data.

Defendant’s Wife Ordered to Turn Over iPhone for Examination: In Brown Jordan International, Inc. et. al. v. Carmicle et. al., Kentucky District Judge Greg N. Stivers granted the plaintiffs’ expedited motion to compel the defendant’s wife to produce her iPhone for a forensic examination for information related to the case.

Defendant Compelled to Restore and Produce Emails from Backup Tapes: In United States ex rel Guardiola v. Renown Health, Nevada Magistrate Judge Valerie P. Cooke concluded that emails contained on backup tapes held by the defendants was not reasonably inaccessible due to undue cost and, even if the emails were reasonably inaccessible due to undue burden or undue cost, “good cause supports their discoverability”. Also, after an analysis of cost-shifting factors found only one factor favored cost-shifting of the production of emails to the relator, Judge Cooke ordered the defendant to bear the cost of restoration and production.

Court Resolves Dispute Over Scope of Databases and Searches to be Performed: In Willett, et al. v. Redflex Traffic Systems, Inc., New Mexico District Judge Lourdes A. Martinez ordered the defendants to produce a spreadsheet referred of file folders, with information for the files on their virtual server(s), the plaintiffs to provide the defendant with a reasonable list of search terms, limited to the relevant time frame, parties, and issues of this case and for the defendants to perform the searches specified by the plaintiffs within ten days of receiving the searches.

Court Rules that Automatically Generated Read Receipt is Not Hearsay: In Fox v. Leland Volunteer Fire/Rescue Dep’t Inc., North Carolina District Judge Louise W. Flanagan ruled that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay.

Court Has a “Beef” with Plaintiff’s Proportionality Argument: In Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, Kansas Magistrate Judge Teresa J. James granted the defendants’ motion to compel production of documents, overruling the plaintiffs’ objections to the discovery request in finding that “Plaintiff has not satisfied its burden to show that producing the requested documents would be unduly burdensome”.

Plaintiff Ordered to Image its Sources of ESI, Respond to Disputed Discovery Requests: In Electrified Discounters, Inc. v. MI Technologies, Inc. et al., Connecticut Magistrate Judge Donna F. Martinez granted the defendant’s motion to compel the plaintiff ‘s responses to discovery and ordered the plaintiff to “image its sources of electronically stored information (‘ESI’), including its hard drives and QuickBook files”.

APPLE V. SAMSUNG

We may be done with the past, but the past is not done with us.  We couldn’t help but take a couple of looks back at Apple v. Samsung to see where the dispute stood (look at 2014, part 3 for more decisions related to this case).  And, by the way, I’ve lost count how many times Samsung has been ordered, then received a stay, to pay the judgment amount.

Believe it or Not, Apple v. Samsung is Still Going Strong: eDiscovery Case Law: It appears that Samsung may, just may, finally have to pay some damages to Apple for patent infringement.

Samsung Doesn’t Have to Write a Check After All…Yet: Earlier, we revisited the Apple v. Samsung case, which we covered so much last year, it had its own category in our annual case law review. On September 18, U.S. District Court Judge Lucy Koh granted Apple’s motion for partial final judgment in the case that Apple lodged against Samsung in 2011, seemingly clearing the way for Apple to collect $548 million in damages from Samsung. But, on Friday, Samsung received an emergency stay on that order.

PRODUCTION FORMAT DISPUTES

It seems that there are more disputes regarding the form of production than ever.  Here are the ten cases involving production format disputes:

Defendant Ordered to Produce Unredacted Versions of Agreements and Shipment Data: In Mervyn v. Atlas Van Lines, Inc. et. al., Illinois Magistrate Judge Susan E. Cox granted the plaintiff’s motion to compel the defendants to produce unredacted owner-operator agreements and shipment data, rejecting the defendants’ argument that producing both would be an undue burden.

Appellate Court Upholds Ruling to Require Production in Native Format: In the case In re State Farm Lloyds, the Texas Court of Appeals, finding that the relator failed to meet its burden to support its objection that it could not produce the discovery through reasonable efforts, denied the petition for writ of mandamus filed by the relator in which it contended that the trial court abused its discretion by ordering the production of discovery in native or near-native formats rather than the “reasonably usable” formats it proposed.

Court Denies Defendant’s Motion to Require Plaintiff to Re-Produce Data in a More Usable Format: In United States v. Meredith, Kentucky Senior District Judge Charles R. Simpson, III denied the defendant’s motion to compel production of electronically stored information (ESI) by the plaintiff in a usable format, agreeing that the plaintiff had fulfilled its discovery production obligation pertaining to the manner and format of the ESI.

Court Finds No Discovery Abuses by Defendant that Produced MSG Instead of TIFF Files: In Feist v. Paxfire, Inc., New York Magistrate Judge Ronald L. Ellis denied the plaintiff’s request for reimbursement of costs and expenses related to document production, finding that the plaintiff had made no showing of significant discovery abuses by the defendant, and had not demonstrated that the defendant engaged in intentionally burdensome production.

Court Orders Defendant to Produce Metadata for Previously Produced Emails: In Prezio Health, Inc. v. Schenk, et. al., after “a careful in camera review” of emails responsive to eighteen keyword search terms, Connecticut Magistrate Judge Joan Glazer Margolis ordered the defendant to produce metadata for eight specific emails which had already been produced to the plaintiff.

Plaintiff Ordered to Re-Produce Files in Native Format Because it Failed to Meet and Confer with Defendant: In Themis Bar Review, LLC v. Kaplan, Inc., California Magistrate Judge Barbara L. Major ordered the plaintiff pay for the cost to produce files in native format after the plaintiff originally produced unsearchable PDF images without metadata and failed to properly meet and confer with the defendant regarding production format as stipulated in the parties’ Joint Discovery Plan.

Defendant Compelled to Produce Employees’ Personal Data in EEOC Dispute: In EEOC v. DolgenCorp LLC d/b/a Dollar General, Illinois District Judge Andrea R. Wood granted the plaintiff’s motion to compel the defendant to produce electronically-stored information (“ESI”) containing personal information of the defendant’s conditional hires and complete versions of documents that the defendant previously produced with portions redacted due to purported lack of relevance. She also ordered the plaintiff to produce documents previously withheld due to privilege for an in camera review.

Oh, Thank Heaven! Court Orders 7-Eleven to Produce Metadata: In Younes, et al. v. 7-Eleven, Inc., New Jersey Magistrate Judge Joel Schneider granted the plaintiffs’ motions to compel the production of metadata for selected groups of documents, denying the defendant’s cross-motions to bar the production of metadata.

You Don’t Get a Second Chance to Make a First Document Production Request: In Allison v. Clos-ette Too, LLC, New York Magistrate Judge James C. Francis, among other motions considered, denied the plaintiff’s motion to compel the defendants’ production of electronically stored information (ESI) in native format after the plaintiff had previously requested (and received) ESI from the defendants without specifying the desired document format.

Court Untangles Form of Production Dispute with Curling Iron Manufacturer: In Wilson v. Conair Corp., California Magistrate Judge Stanley A. Boone granted in part the plaintiff’s motion to compel production, by requiring the defendant to produce further ESI in native format if feasible or TIFF format with the associated metadata, as well as to produce associated metadata for its prior production if it had not already done so.  The court later continued to intervene in discovery disputes between the two parties here.

We’re just getting started!  Tomorrow, we will cover cases related to disputes about discovery, eDiscovery cost reimbursement and issues related to privilege and confidentiality assertions.  Stay tuned!

Want to take a look at cases we covered the previous four 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 Plaintiff’s Motion to Compel the Defendant to Assist with Access to its Data: eDiscovery Case Law

In SFP Works, LLC v. Buffalo Armory, LLC, No. 14-13575 (E.D. Mich., Nov. 19, 2015), Michigan Chief District Judge Gerald E. Rosen, agreeing with the defendant that the plaintiff’s motion was untimely, and that Plaintiff “unreasonably declined” several options proposed by the defendant for accessing the data that was produced to it by the defendant, denied the plaintiff’s motion to compel access to operational data.

Case Background

In this patent infringement case, the defendant produced data to the plaintiff in February 2015, acknowledging in an accompanying letter that it was producing its data files “in native format, the way they are kept in the ordinary course of business,” and that the plaintiff would need to obtain specialized third-party software in order to view the data in these files.  Over a month later, the sent a letter to the defendant, indicating that a license for the software needed to view the data files (along with the training and technical support) would cost approximately $6,000 and (ii) requested the defendant to provide hard-copy printouts of the pertinent data, as it had already done for certain runs of its accused process.  In response, the defendant offered to provide printouts if the plaintiff covered the costs for those printouts and also provided the plaintiff with a copy of free software it had obtained from a third-party vendor for viewing the data files it had produced back in February.  Problem solved, right?  Not so fast.

Unfortunately, the plaintiff continued to encounter difficulties accessing the data and suggested that the data provided by the defendant was “corrupt in some way,” or that the viewing software obtained from the third-party vendor was “not suitable” for gaining access to this data.  The third-party vendor indicated that the plaintiff had used up its free technical support, and indicated that it would have to spend several hundred dollars or more for additional support.

In June, the defendant proposed three solution alternatives to the plaintiff: buy a license to the full software package that the defendant had used to generate the underlying data, pay the “nominal cost” sought by the third-party vendor to for continued software troubleshooting or identify up to ten dates for which the defendant could provide hard-copy printouts of data generated through its use of the accused process.  The plaintiff rejected all three alternatives, so, on June 10, the defendant responded, stating that “[t]here is simply nothing more we can do and nothing more the Federal Rules require us to do.”  Twenty days later, the plaintiff filed its motion to compel access to operational data.

Judge’s Ruling

With regard to the timeliness of the motion, Judge Rosen stated:

“As this lengthy procedural history makes clear, the present discovery dispute ripened, at the very latest, on June 10, 2015. By that date, Plaintiff had expressly rejected each of Defendant’s proposals for resolving this dispute. In addition, Plaintiff was fully aware by that date (i) that it remained unable to review and analyze the data produced by Defendant, and (ii) that Defendant did not intend to take any further steps to assist Plaintiff in overcoming this technical hurdle. Yet, even assuming that the present dispute were deemed to have arisen on June 10, rather than in late February when Defendant produced the data giving rise to this dispute, Plaintiff nonetheless failed to seek the Court’s intervention in this dispute within fourteen days after Defendant explicitly advised Plaintiff on June 10 that it would take no further action to assist Plaintiff in gaining access to the data it had previously provided. Instead, Plaintiff first brought this dispute to the Court’s attention twenty days later, when it filed a June 30, 2015 motion to compel Defendant to implement one or more measures designed to ensure Plaintiff’s access to Defendant’s data.  Under the terms of the Court’s scheduling order, this motion was filed too late to secure the Court’s intervention in the parties’ dispute.”

Judge Rosen also rejected the plaintiff’s argument that the matter before the court was not a discovery dispute and noted that the plaintiff requested that it be granted access to the defendant’s own software at its facility in Buffalo, New York to view the data and the defendant offered that solution the day after the plaintiff filed its motion, making the motion unnecessary.  As a result, Judge Rosen denied the plaintiff’s motion.

So, what do you think?  Should the defendant have been required to do more to make the data accessible?  Or did it do enough?  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 Plaintiff’s Request for In Camera Review of Defendants’ Privileged Emails: eDiscovery Case Law

In Armouth International, Inc. v. Dollar General Corp. et. al., No. 14-0567 (M.D. Tenn., November 2, 2015), Tennessee Magistrate Judge Barbara D. Holmes, calling the plaintiff’s request a “fishing expedition”, denied the plaintiff’s expedited motion to compel, requesting that the defendants be required to produce emails that were either withheld or redacted based on claims of attorney-client privilege for an in camera review of the emails by the Court to confirm the privilege claims.

Case Background

In this dispute between a discount retailer and one of its suppliers over failure to pay invoices and cancelled orders, the defendants withheld certain email communications and redacted other emails on the basis of attorney-client privilege.  The disputed emails related to a decision made by the defendants’ Assistant General Counsel (AGC) to release a hold (that was originally placed by the defendants because the merchandise failed to conform to the labeling standards set forth by the Federal Trade Commission) on merchandise that was to be distributed to the defendants’ retail stores for sale.  The defendant contended that the AGC’s decision was purely legal and involved, at most, minor business considerations.

Citing the AGC’s role as “head of the Compliance Department” and “supervisor to the Senior Director of Global Sourcing”, the plaintiff argued that the AGC was acting with his “business hat,” as opposed to his “legal hat,” and that the emails withheld and redacted by the defendant involving the AGC were therefore not subject to the attorney-client privilege.  As a result, the plaintiff filed an expedited motion to compel, requesting that the defendants be required to produce all 52 of the communications withheld or redacted by the defendant for an in camera review by the Court to determine which emails are protected by the privilege.

Judge’s Ruling

Referencing the defendant’s contention that the decision to release the hold was made by the AGC precisely because it required the legal opinion of an attorney, Judge Holmes stated:

“The Court is not persuaded that this series of events, nor Armouth’s unsupported speculation, forms a ‘factual basis adequate to support a good faith belief by a reasonable person’ that an in camera review of the emails contained in Dollar General’s privilege log would reveal communications involving business advice unprotected by the attorney-client privilege. Armouth is unwilling to believe that Mr. Stephenson was acting in a legal capacity when the decision was made to release the hold on its merchandise, despite the fact that the hold was originally implemented due to legal considerations, i.e. the failure of Armouth’s merchandise to comply with federal law with respect to labeling standards.”

Continuing, Judge Holmes stated: “The Court agrees with Dollar General that Armouth’s blanket request for review of the entire privilege log suggests a ‘fishing expedition,’ as opposed to a specific request to discover relevant information. The Court also notes that granting Armouth’s motion, which broadly requests a review of all of Dollar General’s emails withheld based on attorney-client privilege, would open the floodgates and allow any party to demand an in camera review of the opposing party’s attorney-client communications so long as the former expressed an unfounded suspicion that counsel for the latter had misrepresented the basis for the privilege claim. For the these reasons, Armouth’s motion is DENIED.”

So, what do you think?  Should the court have allowed for the in camera 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.

Defendant Ordered to Produce Unredacted Versions of Agreements and Shipment Data: eDiscovery Case Law

In Mervyn v. Atlas Van Lines, Inc. et. al., No. 13-3587 (N.D. Ill., Oct. 23, 2015), Illinois Magistrate Judge Susan E. Cox granted the plaintiff’s motion to compel the defendants to produce unredacted owner-operator agreements and shipment data, rejecting the defendants’ argument that producing both would be an undue burden.

Case Background

In this dispute between a shipping company and an independent owner-operator over compensation calculations, the plaintiff requested certain owner-operator lease agreements (known as “PVOs”) from the defendants to support its class claims.  After the court entered an order directing the parties to hold an ESI liaison meeting to resolve the discovery issues, the defendants produced 18 PVOs with the names of the owner-operators redacted, stating that the sample of PVOs demonstrated that the contracts all differ greatly and showed insufficient commonality or typicality among the owner-operators to adequately define a workable class.  The defendants refused to produce unredacted versions of the PVOs, expressing concern that the plaintiff was likely to misuse the information it gained through discovery to bring additional claims or lawsuits against the defendant.

The plaintiff also requested specific shipping data related to a certain time period in “usable electronic format”, to which the defendants objected, indicating that database searching to provide that information would require the defendants to spend two weeks writing a “script” and that the request was beyond the scope of discovery as envisioned by the Federal Rules of Civil Procedure because it required them to create a new document.  In response, the plaintiff filed a Motion to Compel both the unredacted PVOs and the shipping data in the requested format.

Judge’s Ruling

Finding that the defendants claims regarding misuse of the owner-operators’ names to be “[b]aseless”, that the owner-operator names were relevant to the case and that producing additional PVOs necessary to determine issues related to class certification would not create an undue burden on the defendants, Judge Cox found that “Atlas has failed to show any threat of misuse and is incorrect that the names are irrelevant, thereby mooting its argument that redaction would be unduly burdensome”.

As for the request for shipping data in a particular format, Judge Cox cited Apple v Samsung to illustrate that requiring a party to query an existing database to produce reports for opposing parties is not the same as requiring the creation of a new document.  Finding that the argument that the plaintiff’s request is outside the scope of Rule 34 was unfounded and that the plaintiff “needs this data for Plaintiff’s expert to determine whether, and to what extent, the owner-operators’ in the putative class were damaged by the terms in the PVOs”, Judge Cox granted the plaintiff’s motion to compel the defendants to produce unredacted owner-operator agreements and the shipment data in the format requested.

So, what do you think?  Is querying a database to produce information creation of a new document or does it fall within the scope of Rule 34?  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.

Appellate Court Upholds Ruling to Require Production in Native Format: eDiscovery Case Law

On Monday, we covered a case where the requesting party objected to receiving a native format production by the opposing party instead of TIFF files (go figure).  In today’s case, it was the producing party that objected to providing a native format production.  Here’s the case.

In the case In re State Farm Lloyds, No. 13-14-00616 (Tx. App. Ct., Oct. 28, 2015), the Texas Court of Appeals, finding that the relator failed to meet its burden to support its objection that it could not produce the discovery through reasonable efforts, denied the petition for writ of mandamus filed by the relator in which it contended that the trial court abused its discretion by ordering the production of discovery in native or near-native formats rather than the “reasonably usable” formats it proposed.

Case Background

In this case which involved a homeowner’s insurance claim after hail storm damage, the parties met repeatedly and unsuccessfully to attempt to negotiate a protocol for the production of ESI, causing the real parties to file a motion to “Motion for the Entry of Production Protocol and Motion to Compel Testimony Regarding Technical Information”.  The relators objected, claiming that the real parties’ proposed ESI protocol language would “impose significant burdens” on it to develop (test and implement) unique and burdensome processes just for this case.  The relators also claimed the real parties’ approach was “unsupported under the law”, indicating that “[t]he Texas Legislature did not craft Rule 196.4 [the Texas rule that addresses the procedures that must be followed in seeking the discovery of data or information that exists in electronic or magnetic format] as a mandate for native production”.

The trial court held an evidentiary hearing on the discovery issues at which various witnesses testified (including Craig Ball, who testified on behalf of the real parties that production of the ESI in native and near-native format was both easier and cheaper for the relator than the production of information lacking metadata and that the “reasonably usable” format proposed by the relator was incomplete and lacked essential information.

After the testimony, the trial court granted the real parties’ motion to compel.  The relator filed a petition for writ of mandamus, contending: (1) Texas Rules of Civil Procedure 196.4 and 192.4 allow for the production of ESI in “reasonably usable forms”; and (2) the trial court clearly abused its discretion by entering an order requiring the production of all ESI in specific formats (e.g., “native”) as demanded by real parties and by refusing to allow State Farm to produce ESI in the “reasonably usable” forms it proffered.

Appellate Court Ruling

The court noted that “Under the express terms of the Rule 196.4, the real parties are required to specify the form of production for requested ESI, and State Farm has the obligation to either produce the responsive ESI that is reasonably available to it in the ordinary course of business or to object if it cannot produce the ESI in the requested form through ‘reasonable efforts.’”  Finding that the “real parties have clearly specified the form for production of ESI as specified by our rules and consistent with federal practice”, the appellate court also found that the real parties had presented evidence that “ESI discovery in native and near-native formats is necessary”.  The appellate court also noted that “the record contains evidence that the discovery offered by State Farm as ‘reasonably usable’ lacked numerous categories of information regarding State Farm’s evaluation of the real parties’ claim such as emails, instant messages, captions next to photographs that incorporated the adjuster’s evaluations of the real parties’ damages, and ‘Xactanalysis’ reports on the claim.”

Noting that “State Farm did not provide the trial court with any evidence regarding the estimated cost or expense of producing the ESI data in the requested forms, any evidence regarding the time that it would take to produce the ESI data in the requested forms, or any other estimate of the ‘reasonable expenses of any extraordinary steps required to retrieve and produce the information’”, the Appellate Court determined that “the trial court acted within its discretion in determining that the discovery was not unduly burdensome or that the burden or expense of the discovery outweighed its likely benefit” and denied the petition for writ of mandamus filed by the relator.

So, what do you think?  Should requesting parties always be able to receive native and near-native formats of ESI if they request it?  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 Require Plaintiff to Re-Produce Data in a More Usable Format: eDiscovery Case Law

In United States v. Meredith, 3:12-CR-00143-CRS (W.D. Ky. Sept. 22, 2015), Kentucky Senior District Judge Charles R. Simpson, III denied the defendant’s motion to compel production of electronically stored information (ESI) by the plaintiff in a usable format, agreeing that the plaintiff had fulfilled its discovery production obligation pertaining to the manner and format of the ESI.

Case Background

In this criminal matter, the government plaintiff began producing discovery in February 2013 and had produced over 300 GB of data plus additional data in four “imaged” computer hard drives, including:

  • Several DVDs containing emails and documents;
  • Copies of four “imaged” drives from the defendant’s and others’ computers;
  • Two hard drives, one containing extracted emails and documents from those imaged hard drives and another containing records obtained during a search warrant;
  • A thumb drive containing the Forensic Tool Kit Report of two of the imaged hard drives;
  • Audio files of relevant interviews; and
  • Paper documents.

The files were searchable using common applications, such as Microsoft Office.  The plaintiff also provided the defendant with written directions on finding specific documents, a Discovery Index and color-coded Media Review Index, and orally explained how it used search terms in reviewing the documents. Despite that assistance, the defendant brought a motion to compel the plaintiff to provide electronically stored information in a more usable format (requesting professional processing and review of the discovery with “industry standard tools” costing nearly $300,000 to be paid by the plaintiff) or to dismiss the case.

Judge’s Ruling

Noting that there is a “dearth of precedent… suggesting what constitutes sufficiently usable discovery” (especially in criminal cases), Judge Simpson acknowledged that the plaintiff’s production was extensive.  However, he noted that “the Government collected into a separate hard drive all document and email files from the imaged drives, two of which were from Defendant’s own desktop and laptop computers”, that the “United States has provided Defendant with discovery that is term searchable by common applications also used by the United States for its own search purposes” and that “[t]he Government also provided Defendant with written and oral assistance in regard to finding specific documents”.

Stating that “[t]his Court does not interpret the Government’s obligation to include providing only evidence that would be helpful to Defendant’s case or searchable using Defendant’s preferred search tools”, Judge Simpson determined that the plaintiff fulfilled its obligation “by providing evidence in a format searchable by multiple common applications, collecting document and email files from imaged hard drives on a separate hard drive, and providing oral and written assistance in searching for files, including a colorcoded and categorized Media Review Index” and denied the defendant’s motion.

So, what do you think?  Was that the correct ruling or should the Government have done more to make the production usable?  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 Finds No Discovery Abuses by Defendant that Produced MSG Instead of TIFF Files: eDiscovery Case Law

Our hearts and prayers go out to the people of Paris in this difficult time.  Having said that, we still have a blog to do each day, so here it is…

In Feist v. Paxfire, Inc., 11-CV-5436 (LGS)(RLE) (S.D.N.Y. Oct. 26, 2015), New York Magistrate Judge Ronald L. Ellis denied the plaintiff’s request for reimbursement of costs and expenses related to document production, finding that the plaintiff had made no showing of significant discovery abuses by the defendant, and had not demonstrated that the defendant engaged in intentionally burdensome production.

Case Background

In this case, the plaintiff claimed that the defendant ignored her request for emails to be produced in TIFF format and also did not properly object to the requested form pursuant to the Parties’ 26(f) Report, and Federal Rule of Civil Procedure 34.  She also claimed that the defendant failed to use a vendor for its overall document collection, which resulted in duplication and discovery delays.  The defendant countered that it produced emails in the native format used by the defendant, which was in the form of Outlook .msg message files and consistent with the plaintiff’s request and also purchased specialized software from, and consulted with, a vendor.

The plaintiff also argued that the defendant intentionally overburdened Plaintiff’s counsel with duplicative document production – the original production in 2012 was provided to the plaintiff in a Dropbox folder, but an attorney for the plaintiff deleted some of the information on Dropbox, causing the Defendants to re-produce the deleted ESI with a supplemental production.  As a result of the disputes, the plaintiff requested for the defendant to award her costs and expenses related to the defendant’s production.

Judge’s Ruling

Taking on the issue of the form of production first, Judge Ellis stated: “The Court finds that Feist’s argument regarding the format of email production is meritless. Feist claims that Paxfire did not properly object to the TIFF format. However, in an email dated March 9, 2015, it is clear that the Parties did engage in ongoing discussions about the form in which emails should be produced.  Following communications with Paxfire, Feist was to speak with the Litigation Support Department about ‘production of documents in .pst form.’  This suggests that Paxfire did object by offering to produce documents in a form other than TIFF. To the extent that documents were produced in .msg form, as opposed to .pst form, the Court finds credible Paxfire’s assertion that the two formats are easily convertible from one form to the other, and that .msg format contains more metadata than TIFF format.  There has been no evidence to establish that .msg form imposed considerable costs on Feist’s part.”

As for the plaintiff’s claims regarding the defendant’s supposed lack of use of a vendor, Judge Ellis noted “Although Paxfire did not use a vendor in a way expected by Feist, the Court considers the manner in which Paxfire did use a vendor to be a non-issue.”  Regarding the defendant’s duplicate production, Judge Ellis indicated that the plaintiff’s “deletions caused Paxfire to reproduce everything it originally produced in 2012, in addition to new material Paxfire believed was relevant to the 2015 production, because Feist stated that Paxfire had failed to produce certain documents.  To the extent that Paxfire duplicated documents from 2012, the Court holds Feist responsible for such duplication. Feist stated that Paxfire ignored Feist’s suggestion that Paxfire restore the deleted Dropbox files, and instead offered to send Feist a hard drive.  On the contrary, in an email to Paxfire’s counsel dated April 14, 2015, Clark stated that Plaintiff’s counsel was attempting to restore files unsuccessfully, and that she understood ‘you are sending us a hard drive with the materials, so we don’t need to worry about drop box [sic]…’”

Finding the plaintiff’s contentions to be without merit, Judge Ellis denied her request for reimbursement of costs and expenses related to document production.

So, what do you think?  Have you ever been associated with a case where the requesting party objected to native format and preferred TIFF instead?  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.

Defendant’s Wife Ordered to Turn Over iPhone for Examination: eDiscovery Case Law

In Brown Jordan International, Inc. et. al. v. Carmicle et. al., Consolidated Case No. 15-00037 (W.D.K.Y. Oct. 19, 2015), Kentucky District Judge Greg N. Stivers granted the plaintiffs’ expedited motion to compel the defendant’s wife to produce her iPhone for a forensic examination for information related to the case.

Case Background

In this employment dispute that spawned a counter-suit which was eventually combined into a single consolidated case, the defendant produced his electronic devices and electronic storage for forensic examination. Based upon the review of those devices and sites, the plaintiffs came to believe that the iPhone of the wife of the defendant may contain information relating to the claims in the action. As a result, the plaintiffs issued a subpoena to the the wife of the defendant, requesting her iPhone for a forensic exam.  She objected to the production of her iPhone and refused to produce it.  So, after the parties were unable to come to an agreement regarding the forensic review of her iPhone, the plaintiffs filed an Expedited Motion to Compel.

Judge’s Ruling

With regard to the relevancy of her iPhone, Judge Stivers, noting that the forensic examination report of the defendant’s laptop found “an Apple iTunes backup file of Rashna’s iPhone, which contains some of the original Brown Jordan International screenshots”, stated “[i]n this case, the information sought from Rashna’s iPhone appears to be relevant to the claims asserted in the action and good cause exists.”

Judge Stivers then stated that “[t]he burden then shifts to Rashna ‘to establish that the material either does not come within the scope of relevance or is of such marginal relevance that the potential harm resulting from production outweighs the presumption in favor of broad disclosure’”, noting that it was a heavy burden.  The defendant’s wife made the following arguments, each of which was addressed by Judge Stivers:

  • The information does not exist on her iPhone: Judge Stivers rejected that argument, indicating that “it is impossible for the Brown Jordan Parties to refute it without a forensic examination of her iPhone, and issues of spoliation of evidence have been raised in this matter”;
  • The plaintiffs already have that information: Judge Stivers indicated that he was “unpersuaded by this argument”, “in light of the potential spoliation issues and the forensic report”;
  • Producing the iPhone would be inconvenient: Judge Stivers noted that the plaintiffs indicated that “the forensic examination can occur in as little as four hours and can be completed overnight”;
  • She won’t have sufficient to review the results to assert any applicable privileges: Judge Stivers agreed to “modify the review period” to give her more time.

With her objections addressed, Judge Stivers ordered the wife of the defendant to produce her iPhone to be forensically examined and gave her nine days to complete the review of the documents collected from her iPhone.

So, what do you think?  Should she have been compelled to produce the iPhone?  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.

Calling First 30(b)(6) Witness a “Waste of Time”, Court Orders a Second Deposition: eDiscovery Case Law

In Rembert v. Cheverko et. al., No. 12-9196 (S.D.N.Y., Oct. 9, 2015), New York District Judge Katherine B. Forrest granted the plaintiff’s motion “in its entirety” to compel the defendants to provide a properly prepared 30(b)(6) witness to testify regarding the defendants’ preservation and production of emails, to provide copies of document retention/preservation notices issued and to reimburse plaintiff’s costs and fees associated with having to conduct an additional deposition.

Case Background

In this civil suit filed by an inmate in the Westchester County Department of Corrections system over failure to properly treat a fractured arm, the plaintiff sought documents including any email communications between prison staff about the plaintiff.  The defendants failed to respond to that request for over three months, at which time they simply stated that they were not in possession of any such communications.  At a conference two days later, when pressed, defendants’ counsel conceded that defendants had not performed any search for emails and committed to expeditiously search for electronic documents for their witnesses, but still failed to provide any additional emails, despite the fact that five defendants’ witnesses confirmed that they used email to communicate about their patients and that responsive documents about the plaintiff should exist.

The plaintiff issued a motion to compel, to which defense counsel responded by calling the allegations regarding email collection “reckless and, frankly, scurrilous.”  Nonetheless, counsel for defendants ultimately made a small production of several emails to plaintiff’s counsel just before a court conference in July, which the plaintiff’s counsel determined to be incomplete.  The Court then outlined several possible ways of proceeding to resolve this email issue including a 30(b)(6) deposition.  The defendant’s motion to strike the 30(b)(6) deposition was denied and the deposition proceeded on September 25.

Judge’s Ruling

With regard to the 30(b)(6) deposition that was conducted, Judge Forrest noted “it is clear from the transcript that the witness was not prepared to deal with even the most basic topics set forth in the notice. It was a pure waste of time.”  Continuing, she stated:

“The designated witness, Peter Gavin, the Director of Health Information, testified that he had met with defense counsel once, for “an hour, I think.”…This is in contrast to defense counsel’s representation in his response to this motion that he prepared Mr. Gavin over the course of two days….Someone’s recollection is incorrect. Mr. Gavin did not know the version of the email platform used, whether Correct Care maintains the emails on its own server or works with a third party to do that, whether the storage is cloud-based, whether there are any size constraints on the amount of email data that a user can retain, what deletion practices were employed automatically, periodically or specifically, he was unfamiliar with ways of archiving emails other than his own personal practice, whether emails and documents were stored on the hard drive of a user’s computer or on a network server, whether emails sent or received through cell-phones would go through a web-mail client, whether Correct Care backs-up email, etc.”

As a result, Judge Forrest granted the plaintiff’s motion, stating that “[a] properly prepared 30(b)(6) witness shall be made available not later than October 23, 2015. Counsel shall confer on the appropriate location to take the deposition. As plaintiff should not have to have made this motion given the Court’s prior rulings and warnings, defendants shall pay the costs plaintiff has incurred in bringing this motion including: reasonable attorney’s fees for attending the useless deposition of Mr. Gavin and bringing this motion, and court reporter fees for the deposition of Mr. Gavin. Such costs shall be paid to the Patterson Belknap firm within 30 days of this Order. Defendant shall also provide plaintiff and the Court with copies of any document retention/preservation notices issued in connection with this case and the recipients of such hold notice. Such production shall occur not later than October 16, 2015.”

So, what do you think?  Have you ever been involved in a case where a second 30(b)(6) witness had to be produced?  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.