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Court Orders Defendant to Supplement Data Used for Statistical Sampling: eDiscovery Case Law

In United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, (D. Nev. Sep. 1, 2015), Nevada Magistrate Judge Valerie P. Cooke agreed with the relator’s contention that the data used to finalize the relator’s proposed statistical sampling plan was incomplete due to how data was identified within one of two billing systems used by the defendant.  As a result, she ordered the defendant to “EXPEDITIOUSLY PRODUCE” the additional data (and, yes, she used all caps).

Case Background

In this qui tam action under the False Claims Act (for which we covered a previous ruling here), the court had already held, in November 2014, that statistical sampling of claims was appropriate to save costs by enabling the parties to avoid examining every potential claim.  In the attempt for the relator (the person bringing the qui tam action on behalf of the United States) to finalize her proposed sampling plan, a dispute developed over the meaning of a zero-day stay at the defendant’s facilities.

The dispute arose because one of the defendant’s two billing systems used the patient’s registration time instead of the time the patient actually begins receiving inpatient medical care as the admit time – as a result, claims were falling out of the zero day stay population, which was defined as less than 24 hours from patient admit time to discharge time.  When reviewing the initial data for sampling, the relator was surprised that there were fewer claims than she expected – which lowered her chance of recovery in the case and ultimately later learned that this was due to how the billing system determined the admit time.  So she requested additional data to be produced.  The defendant objected, arguing that the relator sought “at this late hour” to acquire more data and alter the definition of a zero-day stay to include said data.

Judge’s Ruling

Noting that “[t]he question of relevancy should be construed liberally and with common sense and discovery should be allowed unless the information sought has no conceivable bearing on the case”, Judge Cooke stated:

“The time-adjusted data is discoverable, for it is indisputably relevant. Evidence is relevant when ‘it has any tendency to make a fact more or less probable than it would be without the evidence’ and ‘the fact is of consequence in determining the action.’…Relator has adequately explained the basis for her belief that the time-adjusted claims properly fall within the data universe for zero-day stays, based upon the guidelines for an inpatient stay and the problem with the Siemens’ ‘admit time.’”

Judge Cooke also noted that the defendant “retain[s] the right, and will have the opportunity, to question or attack the reliability of” the expert and the statistical sampling process.

Judge Cooke also considered whether her November order allowing for statistical sampling permitted the inclusion of the time-adjusted data in the sampling plan.  Based on the definition of a zero-day stay as “a hospital stay of less than 24 hours” (from time of admission), she ruled that “the November order permits inclusion of the time-adjusted claims.”  As a result, she ordered the defendant to “EXPEDITIOUSLY PRODUCE data consistent with relator’s proposal to include the time-adjusted claims” and for the parties to meet and confer to determine the plan for producing the data and finalizing the statistical sampling plan.

So, what do you think?  Was inclusion of the additional data appropriate?  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.

Privilege Log Identifies Additional Documents to be Produced by Defendant: eDiscovery Case Law

In U.S. Securities and Exchange Commission v. Commonwealth Advisors, Inc. et. al., No. 12-700 (M.D. La., Sept. 28, 2015), Louisiana Magistrate Judge Stephen C. Riedlinger ordered the defendants to produce additional documents that were identified on the defendants’ privilege log, but for which the defendants had waived attorney-client privilege.

Case Background

In this case, the district judge submitted a previous ruling that by December 2014, the defendants must “submit to the Plaintiff a revised privilege log that is in compliance with Fed.r.Civ.P. 26(b)(5)(A) and must produce to Plaintiff all documents for which the attorney client privilege has been waived by the assertion of the advice-of counsel defense.”  The defendants provided the plaintiff with revised privilege logs and produced some responsive documents, but the plaintiff asserted that the defendants had failed to produce all of the documents for which it had waived the attorney-client privilege, noting several documents were still included on the privilege log that related to “advice”.

Additionally, the plaintiff was provided with a production that did not redact purportedly privileged information from the original native-format files or from the searchable text metadata that was used to identify and locate specific documents.  Based on the examination of the metadata for selected documents, and a comparison of the metadata with the image file, the plaintiff believed that additional responsive material might be found on other redacted documents as well.  The defendants characterized the plaintiff’s revelation as “reconstructing the redacted portions of documents from metadata that was inadvertently included by a third-party vendor – a vendor made necessary by the SEC’s demand that all files be produced in a certain electronic format.”

As a result of these issues, the plaintiff moved to compel production of the remaining documents.

Judge’s Ruling

Noting that “the day after the Plaintiff’s Second Motion to Compel was filed the defendants advised the plaintiff that there was a problem with their production”, Judge Riedlinger stated that “by demanding that the plaintiff delete all of the incorrectly produced materials, which the plaintiff agreed to do, the defendants effectively failed to comply with the Ruling and Order” (from December 2014).  “Defendants’ otherwise timely production cannot be considered so when they demand a significant part of it — in terms of both volume and content — not be examined and also be deleted.”

Noting that, in his original order, the district judge “did not disagree with the determination that defendants’ privilege logs (provided up to that time) were wholly inadequate to sustain their assertion of the attorney-client privilege”, Judge Riedlinger found that “Defendants revised privilege logs are, overall, now less reliable than the ones they previously produced because they include insufficient and sometimes misleading document descriptions. Plaintiff has persuasively shown that the defendants improperly redacted at least two specific documents (Exhibits J and K), and there is good cause to believe there are more improperly redacted documents.”

As a result, Judge Riedlinger stated:

“The current circumstances support finding that the defendants waived their attorney-client privilege and should be required to produce all previously-withheld documents.  They failed to take any reasonable steps to prevent the disclosure of claimed still-privileged information by the manner of their December production. Only after the plaintiff brought it to their attention in this motion, filed more than six weeks later, did they do anything about it. Defendants provided deficient and sometimes misleading revised privilege logs which, overall, are not reliable. Defendants knowingly redacted materials which are subjects of their advice-ofcounsel attorney-client privilege waiver, and intentionally did not produce one document until they determined it was in their interest to do so. And lastly, but importantly, in these circumstance it is simply unfair to the plaintiff to allow the defendants to assert a broad advice-of-counsel defense, interpret it narrowly, and then based on their narrow interpretation withhold information and documents relevant to that defense.”

As a result, Judge Riedlinger granted the plaintiff’s motion to compel and ordered the defendants to “produce to the plaintiff, within 21 days, all documents withheld on the basis of attorney-client privilege, whether solely or in part.”

So, what do you think?  Did the defendants’ discovery failures cost them privilege assertions on some documents?  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 Orders Defendant to Produce Metadata for Previously Produced Emails: eDiscovery Case Law

In Prezio Health, Inc. v. Schenk, et. al., No. 13-1463 (D. Conn., Sept. 9, 2015), 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.

Case Background

In this dispute over a non-compete provision, the plaintiff provided a list of 18 search terms to be used in searching the defendants’ computers for emails sent and received by the individual defendant during an 8 month period in 2013. When the defendants produced no documents in response to the search request, the plaintiff filed a Motion to Compel, requesting that the defendants produce all computers or hard drives in their possession on which the individual defendant might have sent or received emails during the relevant timeframe.

In their brief in opposition, the defendants argued, inter alia, that defense counsel had conducted a search of the eighteen search terms and would produce all non-privileged documents that relate to the individual defendant’s employment with either plaintiff or the defendant company, all of which probably were previously produced in this litigation.  The defendants also suggested that they conduct a search of the individual defendant’s email account in an in camera setting for the Court.  In its reply brief, plaintiff countered, inter alia, that it was still entitled to the metadata from these documents.  Per their suggestion, in August, the court ordered the defendants to produce the items responsive to the eighteen search terms for in camera review, and both parties produced emails for the in camera review.

Judge’s Ruling

Regarding the plaintiff’s request for metadata, Judge Margolis stated: “After a careful in camera review, plaintiff is entitled to the metadata for the following eight emails: the two May 6, 2013 emails; the May 13, 2013 email; the two June 6, 2013 emails; the two October 16, 2012 emails; and the December 13, 2012 email. Unless counsel agree otherwise, defense counsel shall make the necessary arrangements and plaintiff promptly shall reimburse defendants for any expenses borne as a result.”

Judge Margolis also stated that “[t]his is not a Recommended Ruling, but a ruling on a non-dispositive motion… As such, it is an order of the Court unless reversed or modified by the District Judge upon timely made objection.”

So, what do you think?  Was an in camera review the best way to rule on the request for metadata?  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.

Redactions Aren’t Always as Straightforward as You Think: eDiscovery Best Practices

We were helping a recent client who had a lot of redactions in their production set, so I thought it made sense to revisit the topic here on this blog.

On the surface, it may seem easy enough to redact a document during eDiscovery review to obscure confidential or privileged information.  You may think that all you need to do is draw a black box over the affected text, but there’s actually a lot more to consider in order to ensure that you don’t inadvertently produce information that was intended to be redacted.  Here are a some redaction failures and how to avoid them.

Failure to “Burn” the Redaction into the Image

If the redaction isn’t “burned” into the image so that it cannot be removed, the redacted data can still be viewed.  Especially when your images are Adobe Acrobat PDF files, the most common mistake is to redact by obscuring the text by drawing a black box over the text or images you want redacted.  A simple “cut and paste” can remove the black box, revealing the redacted text.  Acrobat provides a redaction tool (for those editing the PDF there) to properly apply a redaction – it’s best to save the file to a new name after the redaction has been applied.

If you’re using a review application to manage the review, the application should ensure a “burned in” redaction for anything exported or printed, regardless of whether it lets you look at the redacted data within the application itself.  For example, CloudNine’s review platform provides a tool to enable the reviewer to draw a gray box over the text to be redacted so that text can still be viewed within the application.  However, if the file is exported or printed, that box gets “burned” in as a black or white box to completely obscure the redacted text.

Failing to Update Corresponding Text Files to Remove Redacted Text

Even if the image is handled properly, you can still disclose redacted text if you don’t make sure that the corresponding text file, whether extracted from the native file or generated via Optical Character Recognition (OCR), isn’t updated to remove the redacted text.  If you don’t update the corresponding text files, you’re allowing redacted text to slip through the production “back door”.  This happens more often than you might think.

Producing Un-Redacted Native Files

If you’re producing native files, you’ve hopefully discussed with opposing counsel how to handle native files that require redaction.  Typically, the approach is to convert those to an image format and redact the image.  Sometimes the parties agree to “redact” the native files themselves and produce those.  If so, as is the case with Adobe PDF files, there’s a right way and wrong way to redact native files.  Changing the text to white or the background to match the text color is not the same as redacting the text.  All you have to do is to revert back to the original formatting or simply highlight the affected area to see the redacted text.  Instead, you’ll want to agree on a procedure where the text is deleted or replaced with an equal amount of meaningless content (e.g., all “X”s) to preserve text flow and pagination (make sure track changes is off before redacting).  You may even want to agree to copy the entire content of a redacted document to a new file (to remove residual document composition information that might remain).  To see what I “redacted” up above, highlight it with your cursor.  :o)

Failing to Redact Metadata

You may redact content on the document that you produce separately as metadata, via a load or data file.  Failing to check the produced metadata for redacted content could enable that redacted content to slip through.  So, don’t forget to check and remove any sensitive data here, as well.

Quality Control (QC) Check before Producing

Generally, when producing documents with redactions, you should have a checklist that ensures that image redactions are “burned” in, that redacted native files (if produced natively) are properly redacted, and that corresponding text files and metadata have been checked to ensure that redacted data has been removed from those as well.  Otherwise, you could inadvertently produce privileged or confidential information via an inadequate process.

So, what do you think?  How do you handle redactions within your productions?  Do you have a process to QC check redactions before producing?  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 Compelled to Restore and Produce Emails from Backup Tapes: eDiscovery Case Law

In United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, (D. Nev. Aug. 25, 2015), 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.

Case Background

In this qui tam action under the False Claims Act, the relator filed a motion to compel production of email from the defendant for a “gap period” when the emails were stored on backup tapes, pursuant to the defendants’ email retention policy.  On the belief that the March 2011 tapes held the greatest number and scope of historical emails relevant to this litigation, the defendant had previously restored the March 2011 backup tapes via a third-party vendor and produced emails at a cost of over $100,000 (including attorney review and production).

The defendants objected, alleging that the emails were not reasonably accessible because of undue burden and cost, and stating that its IT department could not restore the gap-period emails in house; therefore, it would have to outsource the restoration work for a cost of $136,000 and a total cost of at least $248,000 after adding data processing and contract attorney review.

Judge’s Ruling

Noting that “[u]nder Rule 26(b)(2)(B), it is Renown’s burden to show that the gap-period emails are not reasonably accessible due to undue burden”, Judge Cooke stated that “As a preliminary matter, the plain language of Rule 26(b)(2)(B) instructs that “undue burden,” rather than the format of the ESI, is to guide the court’s analysis. Technological features of the storage media do enter the analysis, but only as they relate to the undue burden inquiry. Stated differently, undue burden is fact specific and no format is inaccessible per se.”

With that in mind, Judge Cooke concluded that “Renown has failed to show that the gap-period emails are not reasonably accessible because of undue burden. As described above, Renown has produced emails from the restored March 2011 backup tapes. In so doing, Renown has demonstrated that it is technologically feasible to restore and produce the gap-period emails… Accordingly, the court cannot fathom what burden accompanies third-party restoration. Renown has not stated that use of a vendor will nevertheless impose burdens – in terms of staff resources, delay of other critical IT projects, or inadequate attention to existing technology infrastructure.”

As for the defendants’ undue cost argument, Judge Cooke rejected “Renown’s argument that ‘cost’ under Rule 26(b)(2)(B) includes document review and storage”, determining that the “$136,000 figure for restoration is not an undue cost that renders the gap-period emails reasonably inaccessible”.

Next, Judge Cooke turned to the question of whether the relator had established good cause for the emails’ production by applying the seven factor balancing test of the costs and potential benefits of the requested discovery under Rule 26(b)(2)(B).  Determining that “five of the relevant factors favor relator, while two are neutral”, Judge Cooke found that “relator has carried her step-two burden of demonstrating good cause”, so “even were the gap-period emails reasonably inaccessible due to undue burden or undue cost, good cause supports their discoverability.”

Finally, Judge Cooke performed an examination of cost shifting, using the seven factor test used in Zubulake.  Noting that “[t]he weightiest factors, relevance and availability of alternatives, balance powerfully against cost shifting”, Judge Cooke ruled that “the costshifting factors require that Renown bear the cost of restoration.”  Therefore, she granted the relator’s motion to compel and denied the defendant’s motion for cost shifting, ordering the relator and defendant to meet and confer to discuss a schedule for production of the gap-period emails.

So, what do you think?  Should the defendant have been ordered to restore the emails from backup tape?  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.

Plaintiff’s Continued Disputes with Curling Iron Manufacturer Getting Hairy: eDiscovery Case Law

In Wilson v. Conair Corp., 1:14-cv-00894-WBS-SAB (E.D. Cal. Aug. 17, 2015), California Magistrate Judge Stanley A. Boone denied the plaintiff’s motion for the Court to establish dates by which the defendant must produce ESI and ordered the parties to meet and confer (again), warning that if the parties could not reach a resolution, all counsel would be required to personally appear before the court and be prepared to engage in an extended, court-supervised meet and confer session that could require an all-day appearance.

Case Background

In this product liability class action, the plaintiff previously filed a motion to compel which was granted in part and denied in part on April 30, in which the defendant was ordered 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.  In addition, the plaintiff also filed a motion to compel production of “all Products returned to Conair for problems related to sparking, flashing, popping, fires, or any line cord failure or malfunction” for testing.  Judge Boone denied that motion since the action was “still in the pre-class certification stage of discovery”.

In the joint statement, the plaintiff included a motion to compel production of discovery granted in the Court’s prior order, seeking to have the Court establish dates by which Defendant must produce e-mails and additional consumer complaints.  The defendant objected, contending that the plaintiff added this second motion to compel after the joint statement had been approved by the defendant and without providing the defendant with an opportunity to address the motion.

Judge’s Ruling

Agreeing with the defendant, Judge Boone denied the plaintiff’s motion for the Court to establish dates by which Defendant must produce ESI discovery, stating that the “parties are ordered to meet and confer in an attempt to establish the appropriate scope of the discovery requested and an acceptable timeline for Defendant to produce documents responsive to discovery requests”.

To provide a little motivation for a cooperative meet and confer session, Judge Boone added this:

“The parties have shown that meet and confer efforts in this action have not been successful in resolving these disputes and each assert it is due to the fault of the other party. Due to the parties’ inability to meet and confer and resolve these issues, the parties are advised that the personal appearance of all counsel shall be required for any further motion to compel that is filed with the Court. The parties are encouraged to work together during meet and confer sessions prior to any scheduled hearing. However, if a resolution is not reached prior to the scheduled hearing, the parties shall be required to personally appear and should plan to engage in an extended meet and confer session with the assistance of the Court which could require an all-day appearance on the day of the scheduled hearing.”

So, what do you think?  Should more courts propose to preside over meet and confer sessions?  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 Acknowledges Lack of Expertise to Recommend Search Methodology, Orders Parties to Confer: eDiscovery Case Law

In ACI Worldwide Corp. v. MasterCard Technologies, LLC and MasterCard International, Inc., 8:14CV31 (Jul. 13, 2015), Nebraska Magistrate Judge F.A. Gossett, acknowledging that the Court “simply does not have the expertise necessary to determine the best methodology to be employed in retrieving the requested materials in a safe, non-obtrusive, and cost-effective manner”, ordered the parties to “once again” confer in an effort to reach an agreement regarding the search methodology to be employed by the defendants in retrieving the information requested by the plaintiff.

Case Background

In this action where the plaintiff alleged the defendants violated a licensing agreement and disclosed confidential information regarding the plaintiff’s middleware, the plaintiff sought ESI from the defendants to determine whether they continued using information regarding the middleware after expiration of the license agreement and whether they still use it in their source code today.

The defendants objected to producing the ESI as requested, stating that the requests were burdensome and also claiming risks that the requests posed to the defendants’ production systems. The plaintiff, in an effort to address the defendants’ concerns, revised the discovery requests several times and devised a search protocol for the defendants to use in retrieving the requested information – when the defendants refused to use the devised search protocol, the plaintiff filed a motion to compel.

Judge’s Ruling

Noting that “Defendants do not dispute the relevance of the requested information”, Judge Gossett found that “Plaintiff has shown a particular need for the information and that the information is relevant to the issues involved in this action”.  Judge Gossett stopped short of granting the plaintiff’s motion though, stating:

“However, the Court simply does not have the expertise necessary to determine the best methodology to be employed in retrieving the requested materials in a safe, non-obtrusive, and cost-effective manner. Based on the information before it, the Court does not even know whether a search methodology or protocol exists (or could exist) which would allow the requested information to reasonably be retrieved.”

As a result, Judge Gossett chose to “order the parties to once again confer in an effort to reach an agreement regarding the search methodology to be employed in retrieving the requested information”, with a plan to “refer the matter to a special master” if the parties would be unable to agree.

So, what do you think?  Should the court have been able to recommend the methodology or was the judge wise to order the parties to try again to work it out?  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 Orders Plaintiff to Re-Review 95% of its Production Classified as “Highly Confidential”: eDiscovery Case Law

In Procaps S.A. v. Patheon Inc., 12-24356-CIV-GOODMAN, 2014 U.S. Dist. (S.D. Fla. July 20, 2015), after the plaintiff designated 95% of its forensically-produced documents (141,525 of 148,636) as “highly confidential”, Florida District Judge Jonathan Goodman ordered the plaintiff to re-review and re-designate those documents within ten days, and also assessed a $25,000 fees award against the plaintiff’s outside counsel to compensate the defendant for its efforts in reviewing the documents.

Case Background

In this case, the parties entered into a stipulated confidentiality agreement whereby they designated confidential documents as either “Confidential Information” or “Highly Confidential Information”, with the parties agreeing that only counsel could view the “Highly Confidential Information”. The parties agreed to use the “Highly Confidential Information” category only for “information that truly requires highly sensitive protection.”

The defendant challenged both the plaintiff’s method of marking highly confidential documents and the number of documents marked.  The plaintiff marked each highly confidential document with the “highly confidential” legend but did so in a way which prevented the defendant from doing a computer search for the term “highly confidential.”  The defendant alleged that its inability to perform these searches significantly prejudiced its defense of the case.

Also, 148,636 documents were produced by the plaintiff in the forensic analysis, and the plaintiff designated 141,525 of them as “highly confidential” (95.2%).   The defendant also determined that 90.9% of the plaintiffs’ entire production (141,696 of 155,759 documents) was branded by the plaintiff as “highly confidential.”  The defendant’s statistical sample review of the branded “highly confidential” documents identified documents generated by the defendant itself, as well as SPAM emails – documents that would clearly not be “highly confidential”.  As a result, the defendant filed a motion for re-designation of highly confidential documents on July 13, 2015 and also sought fee reimbursement of $34,385.69.  The plaintiff ultimately acknowledged the “apparent over-designation of documents as Highly Confidential”, noting that it was performed by a third party vendor.

Judge’s Ruling

In a previous ruling in this case, Judge Goodman began his opinion by quoting both eighteenth century English writer Samuel Johnson and the recently departed B.B. King; in this ruling, he began by quoting song lyrics from a song by Christine McVie.  Judge Goodman, characterizing the plaintiff’s designations as “indiscriminate”, rejected the plaintiff’s proposed alternatives for the defendant or the special master to identify the documents to be re-reviewed, stating that “Procaps’ indiscriminate designation of documents as highly confidential should not lead to the “result of improperly shifting the cost of review of confidentiality” to Patheon.”

Instead, noting that “Procaps cannot avoid its discovery obligations by shifting blame to the third party it hired for the project” and observing that “Procaps’ attorneys presumably performed the final review, and one or more of its attorneys realized, or should have realized, that a 95% highly confidential, AEO (attorney’s eyes only) designation rate is problematic and questionable (or “absurd”) on its face”, Judge Goodman ordered the plaintiff to re-review and re-designate those documents within ten days.  He also awarded the defendant $25,000 of the $34,385.69 fees requested.

So, what do you think?  Was the court correct in ordering the plaintiff to re-review the documents in such a short period of time?  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 Has a “Beef” with Plaintiff’s Proportionality Argument: eDiscovery Case Law

In Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, No. 13-cv-1168-EFM-TJJ (D. Kan. June 26, 2015), 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”.

Case Background

In this breach of contract case, the defendant requested in June 2014, among other production requests, “any and all Documents related to Your hedging and/or risk management strategies and/or policies for all cattle purchased pursuant to the Agreement”.   Subsequently, in April 2015, the defendant deposed a former employee of the plaintiff and learned for the first time of the existence of specific documents that the plaintiff had not produced relating to hedging and/or risk management activities of both cattle and grain pursuant to the Agreement.  After requesting those documents, the plaintiff’s lead counsel sent a letter declining to produce the requested documents as irrelevant.  She offered to schedule a time for the parties to meet and confer about the issue, but she had left the country the day before and fact discovery closed the following day, forcing the defendant to file its motion to compel.

The plaintiff argued that the defendants’ motion to compel should be denied because:

  1. Defendants failed to comply with the “meet and confer” (or was it “meat and confer”?) obligation imposed by Kan. R. 37.2;
  2. Plaintiff had already produced relevant information responsive to the request;
  3. Defendants’ motion was not proportional; and
  4. the Court should defer ruling on the motion until the presiding district judge rules on Plaintiff’s motion for partial summary judgment on risk management claims.

Judge’s Ruling

Noting that the “Defendants had a limited amount of time in which to file their motion to compel”, Judge James found that “Defendants have complied with their Fed. R. Civ. P. 37(1)(1) and D. Kan. R. 37.2 obligations to confer. Defendants acted in a timely fashion and contacted the only Plaintiff’s attorney available before their deadline. In addition, on May 4, 2015, Defendants’ counsel attempted to discuss the issue with Plaintiff’s counsel after she had returned to the country, but she declined to do so.”

Judge James also stated that, “When the discovery sought appears relevant, the party resisting discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevancy as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevancy that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.”  Finding that “the relevancy of the documents is apparent on its face”, Judge James ruled that the documents were within the bounds of the production request.

Finally, with regard to the plaintiff’s proportionality argument, Judge James stated:

“The Court finds that Plaintiff has not satisfied its burden to show that producing the requested documents would be unduly burdensome. Although Plaintiff articulates the issue as one of proportionality, the only factor Plaintiff mentions is the cost of the discovery. Plaintiff does not set forth what the relative cost of production would be as compared to the amount in controversy. The Court notes that both parties seek damages/setoff in excess of $2,000,000. Plaintiff’s unsupported estimate of $4,000 to $5,000 per custodian in discovery costs does not lead the Court to find that ordering the requested discovery violates proportionality, particularly given the history, scope, and nature of this case.”

Judge James did, however, reject the defendants’ request for sanctions in the form of an award of their reasonable expenses incurred in making the motion.

So, what do you think?  Does the plaintiff have a valid “beef” with the verdict?  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.

Apparently, in Discovery, Delta is Not Ready When You Are and It Has Cost Them Millions: eDiscovery Case Law

A few years ago, we covered a case law decision in the Delta/Air Tran Baggage Fee Antitrust Litigation, where Delta was ordered to pay plaintiff attorney’s fees and costs for eDiscovery issues in that litigation.  Apparently, Delta’s difficulties in this case have continued, as they have been ordered this week to pay over $2.7 million in sanctions for failing to turn over ESI, to go along with more than $4.7 million in sanctions for earlier discovery violations.

According to the Consumerist (Delta Hit With Another $2.7M In Sanctions In Years-Old Baggage-Fee Collusion Case, by Chris Morran), U.S. District Court Judge Timothy Batten imposed the sanction of $2,718,795.05 against Delta, which was higher than the $1.86 million sanction amount recommended by the Special Master in the case.

In his ruling, Judge Batten stated that: “Since discovery commenced in February 2010, this case has been plagued by a veritable deluge of discovery disputes and a corresponding succession of motions for discovery sanctions against Delta. It is not hyperbolic to say that this lawsuit has turned into litigation about litigation: the time, energy, and resources spent on discovery abuses equals or exceeds those that have been dedicated to litigating the merits of the case. Plaintiffs filed four sanctions motions in as many years, with each motion building on its predecessors.”  Judge Batten also noted that “Delta’s discovery practices have time and time again been shown to be ineffective, inefficient, and inept. Throughout this litigation, Delta’s left hand has not known what its right hand was doing, and ‘it often times appears that this litigation was conducted in an Inspector Clouseau-like fashion.’”

Delta had already been sanctioned $1.3 million for failing to turn over 60,000 pages of documents to the plaintiffs that were found in a box of previously undiscovered backup tapes and another $3.49 million, mostly to cover the cost of hiring an independent researcher to scan through and restore another batch of 29 backup tapes that was eventually discovered.

Summing up the lengthy and difficult discovery period to date, Judge Batten stated: “Without question, it is Delta’s ineptitude and missteps that have caused the vast majority of the excessive time, expenses, and energy that the parties have expended in discovery for the last five years…Delta’s discovery misconduct has rendered the Court’s attempts to manage this litigation and move it toward a resolution on the merits as futile and maddening as Sisyphus’s efforts to roll his boulder to the top of the hill.”

To make matters worse for Delta, Judge Batten also granted class-action status to the case this week.  Of course, as the article notes, Delta made more than $860 million off baggage fees in 2014 alone, so they can afford to fight.

So, what do you think?  Should Delta have received such severe sanctions?  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.