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Court Rejects Defendants Motion Seeking Limitless Access to Plaintiff’s Facebook Account: eDiscovery Case Law

We haven’t had a good social media request case in a while – here’s one that compares to other cases we’ve covered in the past…

In the class action In re Milo’s Kitchen Dog Treats Consolidated Cases, Civil Action No. 12-1011 (W.D. Penn. April 14, 2015), Pennsylvania Magistrate Judge Maureen P. Kelly denied the defendants’ Motion to Compel Unredacted Facebook Data File and Production of Username and Password, disagreeing that the discovery of one highly relevant Facebook entry justified the defendants to be “somehow entitled to limitless access to her Facebook account”. Judge Kelly did order the plaintiff to produce previously produced redacted Facebook pages to the Court unredacted so that an in camera inspection could be conducted to confirm that the redacted information was truly privileged.

Case Background

In this case, based on the discovery of the posting on the plaintiff’s Facebook page in which she indicated that another brand of chicken jerky dog treats caused the harm to her dog, the defendants were of the belief that there could be other relevant information on her Facebook account. The defendants sought that information in their Second Request for production, asking the plaintiff to produce “the Facebook Data and Facebook Data File of Lisa Mazur and/or Lisa Pierwsza Mazur.” Despite the fact that the defendants’ request was unlimited and objected to by the plaintiff as inherently overbroad, she nevertheless responded to the request and provided 648 pages of Facebook data, albeit redacted. The Facebook data provided contained information indicating that Plaintiff purchased dog treats other than Defendant’s brand, as well as conversations the plaintiff had with others about the dog treat brand and the case.

The defendants argued that it was improper for the plaintiff to unilaterally decide what should be redacted complaining that the location of certain redactions were “suspect” and contended that they were entitled to unfettered access to Plaintiff’s Facebook account including her username and password. Citing Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011), Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) and McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), suggesting that “these cases stand for the proposition that Facebook accounts are always subject to unrestricted access once a threshold showing of relevance has been made”.

Judge’s Ruling

Referencing Fed.R.Civ.P. 26(b)(1), Judge Kelly stated that “Rulings regarding the proper scope of discovery, and the extent to which discovery may be compelled, are matters consigned to the Court’s discretion and judgment. A party moving to compel discovery bears the initial burden of proving the relevance of the requested information.”

With regard to the three cases cited by the defendants, Judge Kelly noted that they were “factually distinguishable from the instant case and, in this Court’s view, do not require the limitless access to Plaintiff’s Facebook account data advocated by Defendants.” In Largent v. Reed, for example, the plaintiff had refused to provide any Facebook data, whereas the plaintiff here produced 648 pages from her Facebook account. Judge Kelly also observed that pictures of the plaintiff “enjoying life with her family” in Facebook would not near as relevant as they would be in a personal injury litigation like Largent.

Agreeing with the plaintiff’s argument, Judge Kelly stated that “having already provided Defendants with Facebook data relevant to the case, Defendants have failed to make any showing that further production of her Facebook records would result in the dissemination of any more relevant information than has already been provided.” She therefore denied the defendants motion to compel.

With regard to the redactions, the plaintiff had redacted a conversation with another purported class member in the case because their conversation revolved around “specific advice given by class counsel as to the litigation and its progress”. Because of the dispute over the validity of the redactions, Judge Kelly decided “out of an abundance of caution”, “that the best course is to have Plaintiff produce the claimed privileged documents to the Court so that an in camera inspection can be conducted. In this manner, any truly privileged information will remain protected and Defendants can proceed confident that they have received all the relevant and non-privileged information from Plaintiff’s Facebook data.”

So, what do you think? Was that the correct decision or should the judge have treated this case like the three cases cited by the defendant? 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.

Oh, Thank Heaven! Court Orders 7-Eleven to Produce Metadata: eDiscovery Case Law

In Younes, et al. v. 7-Eleven, Inc., Civil Nos. 13-3500 (RMB/JS), 13-3715 (MAS/JS), 13-4578(RMB/JS) (D.N.J. Mar. 18, 2015), 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.

Case Background

In this dispute between franchisees and the parent company, the plaintiffs had struggled to obtain relevant documents from the defendant regarding the possible take back of franchises, with the defendant producing documents “in dribs and drabs”. Even after months of discovery and numerous court conferences addressing discovery disputes, the defendant acknowledged that not all relevant, requested and non-privileged documents had been produced. Moreover, some of the key documents produced were not dated and did not list the author or recipients.

As a result, one plaintiff group identified 38 documents and two Excel spreadsheets for which they wanted metadata (including “the date of origination, author, custodian, date of each modification and author of each modification, and to the extent available, any data which established to whom the document had been electronically distributed”), while the other plaintiffs sought metadata for an additional 49 documents, two of which were duplicative of the first group of documents. The plaintiff groups filed motions to compel production of the metadata.

The defendant, in its opposition to plaintiffs’ motions and in support of its cross-motions, argued that “(1) the parties agreed at the outset of the case that documents need only be produced in PDF format without metadata; (2) 7-Eleven does not possess much of the requested metadata; (3) the metadata that is available is ‘extremely limited, minimally meaningful and potentially misleading’; and (4) it would be ‘unreasonably burdensome to require 7-Eleven to re-produce [its] . . . documents with metadata.’” (emphasis added) The defendant supported its opposition with statements from the Declaration of its IT director.

Judge’s Evaluation and Ruling

Citing Fed. R. Civ. P. 34(b)(2)(E), Judge Schneider noted that “A party requesting ESI may specify the form of production, which can include metadata”, but did also note that “[s]ome courts hold that a party must show a ‘particularized need’ for metadata.” With regard to that, Judge Schneider stated:

“To the extent it is necessary, plaintiffs have shown a particularized need for the requested metadata. Plaintiffs have demonstrated that many of the paper documents produced to date are missing source, date, and other key background information. This missing information is plainly relevant and discoverable. Further, the requested metadata is relevant to authenticating 7-Eleven’s documents, especially since the authors or creators of some important documents are unknown. It is not insignificant that plaintiffs only identified a relatively small number of documents for which they request metadata rather than asking for metadata for all documents.”

Judge Schneider also found that “None of 7-Eleven’s arguments are persuasive. It is true that the parties originally agreed not to request metadata. However, good cause exists to modify the agreement… Had plaintiffs known at the outset of the case the difficulties they would face in obtaining relevant information regarding 7-Eleven’s documents, it is unlikely they would have agreed to forego requesting metadata. The changed circumstances plaintiffs face justify modifying their earlier agreement not to request metadata… Further, plaintiffs are not requesting metadata for all of 7-Eleven’s documents. Plaintiffs only request metadata for a finite number of documents. The Court does not expect the cost to retrieve the requested metadata to be extensive or costly.”

As a result, he granted the plaintiffs’ motions to compel the production of metadata for the selected groups of documents, denying the defendant’s cross-motions to bar same.

So, what do you think? Was that the correct decision or should the judge have honored the initial agreement between the parties to not require 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.

Appeals Court Upholds “Death Penalty Order” Sanction That Leads to Multi-Million Dollar Judgment: eDiscovery Case Law

In Crews v. Avco Corp., No. 70756-6-I (Wash. Ct. App. Apr. 6, 2015), a Washington Court of Appeals upheld a “death penalty order” against the defendant for discovery violations, including the failure to produce relevant information, but remanded for amendment of the final judgment of over $17.28 million to reflect any offsets for settlements with other defendants.

Case Background

In this product liability case related to a faulty carburetor that was associated with a plane crash in which several people were killed, the defendant failed to satisfy the plaintiffs’ discovery demands from October 2010 into February 2013, often objecting to most, if not all, of the requests. During part of that time, the defendant relied in part upon its document retention policy and, after being held in contempt, the defendant submitted a declaration from counsel describing its efforts to comply with the court’s order to produce. While not providing the policy itself, counsel explained that “pursuant to company policy” certain categories of documents were “retained only for fixed periods of time” and stating that many of the documents supplied by another defendant were “beyond the various retention periods” in the policy. Ultimately, the plaintiffs’ filed a motion for default against the defendant.

On February 4, 2013, the first day of trial, the judge held oral argument on the plaintiffs’ motion for default, during which the defendant’s counsel finally produced a copy of the records management policy. After reviewing the policy, the judge found that it was unclear whether the policy extended to the documents requested by the plaintiffs and orally granted the plaintiffs’ motion to sanction the defendant. The next day, the judge entered a written order granting the plaintiffs’ motion. The order stated that there was substantial evidence that the defendant did not comply with the plaintiffs’ discovery requests and the court found that the withheld discovery tied directly to the plaintiffs’ burden of proof regarding the defendant’s violation of federal regulations and punitive damages.

The court found that the defendant’s “continued disregard and violation of the discovery and contempt orders is without reasonable excuse and is willful. [Avco] has and continues to substantially prejudice plaintiffs’ preparation for trial and presentation at trial, on issues of liability, causation, and punitive damages.” As a result, the court ruled that “All of each plaintiff’s allegations in their respective operative Complaints against [Avco] are deemed admitted, and all of [Avco’s] defenses, if any, are stricken.”

The jury considered compensatory damages and punitive damages in two separate phases of trial, returning a verdict for the plaintiff of $17,283,000; $6 million of which was in punitive damages. The defendant appealed on multiple grounds, arguing that the order violated due process and that the trial court abused its discretion in imposing the most severe sanctions possible when lesser sanctions would have sufficed and also challenged specific sanctions.

Appeals Court Analysis

Assessing the defendant’s objections, the appellate court described the requirements to justify harsh sanctions – that the discovery violations were willful or deliberate, that the opposing party was substantially prejudiced, and that the trial court explicitly considered lesser sanctions. Following considerable analysis, the appellate court found that the trial court did not abuse its discretion in its findings that the violation of the discovery order was willful, that the plaintiffs’ case was prejudiced and that lesser sanctions would not be adequate for a fair trial.

With regard to the records management policy, the appellate court, while observing that the policy was not part of the record, agreed that the “scope and operation of the policy is unclear and unsupported” and that the defendant “did not submit any other evidence, such as employee affidavits, about how the policy applied to the requested documents and their destruction”.

Though the appellate court essentially affirmed the sanctions imposed, it did remand the case for “amendment of the final judgment to reflect any offsets authorized pursuant to chapter 4.22 RCW.”

So, what do you think? Were the sanctions appropriate or should the court have considered lesser sanctions against the defendant? 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.

Denial of Motion for Spoliation Sanctions Leaves Plaintiff Less Than Glad: eDiscovery Case Law

In Gladue v. Saint Francis Medical Center, 1:13-CV-186-CEJ (E.D. Mo. Mar. 24, 2015), Missouri District Judge Carol E. Jackson denied the plaintiff’s motion for evidentiary and monetary sanctions due to spoliation of evidence, finding that the defendant did not have a duty to preserve emails deleted as part of routine IT operations, had diligently attempted to recover deleted emails and that the plaintiff failed to show that any of the unrecovered emails were relevant to her claims.

Case Background

In this employment case, the plaintiff’s employment was terminated in December 2011. As part of the defendant’s routine IT operations, the plaintiff’s email account was purged in March 2012. At that time, plaintiff had not filed either a lawsuit against the defendant or a charge of discrimination with the Equal Employment Opportunity Commission – the defendant was first contacted by the plaintiff’s then-attorney in June 2012 regarding the plaintiff’s employment discrimination claims.

On June 16, 2014, after this lawsuit was filed, the plaintiff submitted a request for production of all of her work emails and her calendar. Because her account had been purged, the defendant undertook several efforts to retrieve the emails, including conducting a search for all emails sent to or received from plaintiff in the accounts of every employee identified in the parties’ Fed. R. Civ. P. 26 disclosures. The defendant ultimately produced over 24,600 pages of emails and related documents to the plaintiff in two productions (nearly three months before the close of discovery), but acknowledged that there were no guarantees that every lost item was retrieved. The plaintiff filed a motion for evidentiary and monetary sanctions due to spoliation of evidence.

Judge’s Opinion

Finding that a “litigation hold was not required at the time plaintiff’s e-mails were deleted”, Judge Jackson ruled that the defendant “has shown that plaintiff’s e-mails were deleted as part of a routine maintenance procedure, rather than in bad faith. Moreover, defendant has diligently attempted to recover the missing documents.”

Judge Jackson also noted that the defendant produced documents to the plaintiff “nearly three months before the close of discovery and almost four months before the deadline for filing dispositive motions. Thus, as to the timing of the productions, no exceptional circumstances justify sanctions.” She also found that “plaintiff has failed to show that any of the unrecovered e-mails are relevant to her claims” and noted that “plaintiff is incorrect in her contention that defendant is at an advantage because it can use the undisclosed e-mails in this litigation” as “Fed. R. Civ. P. 37(c)(1) forbids defendant from using any document that has not been produced to plaintiff at summary judgment or trial.”

As a result, Judge Jackson ruled that “plaintiff is not prejudiced and no exceptional circumstances exist to justify sanctions” and denied her motion for sanctions.

So, what do you think? Did the plaintiff’s motion really ever stand a chance? 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.

How Blue Was My Valley? Not Blue Enough to Cite the Defendant for Discovery Violations: eDiscovery Case Law

In Malone v. Kantner Ingredients, 4:12CV3190 (D. Neb. Mar. 31, 2015), Nebraska Magistrate Judge Cheryl R. Zwart denied the plaintiffs’ motion to show cause, finding that the defendant “the plaintiffs have presented no evidence” that the defendant “destroyed, hid, or purposefully (or even recklessly) failed to produce responsive ESI” in the case.

Case Background

Over two years, the defendants had produced documents from various sources, including 140,000 electronic files located on a computer image of the data stored on the defendant’s file servers. Despite that, multiple conferences were held with the court regarding the parties’ discovery disputes and the plaintiffs filed five motions to compel additional documentation from the defendant.

In October of 2014, the plaintiffs claimed the defendants failed to produce all documents responsive to the plaintiffs’ discovery requests, particularly sent emails and invoices of transactions between Blue Valley Foods and the defendants. In an attempt to quell the plaintiffs’ ongoing distrust of the defendants’ discovery efforts, the defendants were ordered to locate their servers and determine if the server imaging performed by the defendants at the outset of the case was a full and complete imaging, as well as produce responsive invoices and sent mail from those servers.

In response to that order, the servers were received by defense counsel, who confirmed that the data image from the shared server data received by defense counsel at the outset of the case matched the data set and data amount on the servers. The servers were sent to the defendants’ forensic expert, who fully imaged them and provided a full copy of that imaging to the plaintiffs’ forensic expert. After receiving the server imaging, the plaintiffs’ forensic expert performed a word search of the data and located some documents containing the words “Blue Valley” that were not previously disclosed by the defendants in an electronic format. The plaintiffs presented evidence that some of those documents were responsive to production requests served by the plaintiffs, but they were not previously disclosed to the plaintiffs in an electronic format.

The plaintiffs moved for an order to show cause, alleging the defendants, their counsel, and counsel’s paralegal failed to comply with the order, “destroyed or tampered with evidence, and provided untruthful information to the court regarding the existence of discovery requested by the plaintiffs.”

Judge’s Opinion

Judge Zwart noted that, after receiving the actual servers, “the defendants did not repeat their search of the server data for responsive discovery…But the order required the defendants to determine if the server imaging performed by the defendants at the outset of the case was a full and complete imaging: It did not require the defendants to repeat their ESI review and production if the 2012 initial data imaging appeared to be full and complete.”

She continued: “By providing the full image of the servers to Plaintiffs’ expert, the defendants produced the emails, invoices, and associated metadata as required under the court’s order. While the plaintiffs incurred expense for forensic review of that data, the plaintiffs’ use of their own forensic expert was reasonable—and perhaps necessary—to bring some closure to the ongoing ESI discovery battle… The defendants allowed Plaintiffs to ‘see for themselves’ whether any additional documentation was on the Kantner servers. And the court is convinced this was the only means of convincing Plaintiffs that they had received everything. Had the parties discussed how to collect, review and produce ESI at the outset, perhaps the cost of two experts, and other discovery-related fees and costs, could have been avoided. But those discussions never occurred.”

With regard to the missed documents discovered by the plaintiff, Judge Zwart, referencing several sources for best practices for searching, indicated that “At most, the plaintiffs offered evidence of mistakes made during defense counsel’s 2012 manual review of the electronic files. Manual review is still considered by many as the ‘gold standard’ for electronic document review. But human error is common when attorneys are tasked with personally reviewing voluminous electronically stored information.” She also cited Reinsdorf v. Skechers (2013), which stated: “The discovery process relies upon the good faith and professional obligations of counsel to reasonably and diligently search for and produce responsive documents…However, while parties must impose a reasonable construction on discovery requests and conduct a reasonable search when responding to the requests, the Federal Rules do not demand perfection.”

Given that standard, Judge Zwart denied the plaintiffs’ motion to show cause.

This isn’t the first time we’ve covered rulings by Judge Zwart: click here, here, here and here to review previous rulings with eDiscovery impact that we’ve covered.

So, what do you think? Was that the right call or should the defendants have been held to a higher standard? 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. eDiscoveryDaily 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.

Free Trojans with Your Document Production: eDiscovery Trends

By “trojans”, I mean “malware”, not the other type of “trojans”… 🙂

An Arkansas lawyer representing three Fort Smith police officers in a whistleblower case is seeking sanctions after his computer expert found malware on an external hard drive supplied in response to a discovery request, according to a story by the Northwest Arkansas Democrat Gazette.

According to the story, Attorney Matthew Campbell in North Little Rock has been representing three current and former Fort Smith police officers in the lawsuit since January 2014. He requested emails from the Fort Smith Police Department, and Sebastian County Circuit Judge James O. Cox ordered on May 9, 2014, that they be provided to Campbell as part of discovery in the case. The documents were produced in June 2014. It’s how they were produced that aroused Campbell’s suspicion.

Douglas Carson, the attorney representing Fort Smith and its Police Department, sent Campbell a computer hard drive with the production by Federal Express. According to the story, Campbell said the defendants normally had provided him with requested documents via email, the U.S. Postal Service or through a cloud-based Internet storage service.

So, Campbell decided to have his information technology expert, Geoff Mueller of Austin, Texas, check out the drive first. Guess what he found? Four “Trojans,” one of which was a duplicate.

A “trojan” or “trojan horse” appears to be a legitimate program which unleashes the malware when you are tricked into running it. They can be quite tricky as I reported a few years ago when it happened to me.

“One would have kept my Internet active even if I tried to turn it off, one would have stolen any passwords that I entered in, and the other would have allowed the installation of other malicious software,” Campbell said. “It’s not like these are my only clients, either. I’ve got all my client files in my computer. I don’t know what they were looking for, but just the fact that they would do it is pretty scary.”

In an affidavit filed with the motion Friday, Mueller stated: “Upon informing Mr. Campbell of the presence of these Trojans, he provided me with information that the Fort Smith Police Department claimed to be running a secure system with real-time virus and malware protection. In my experience, if the FSPD system is actually as described, these Trojans would not exist on the system.”

Mueller said the placement of the Trojans in a subfolder named “D:Bales Court Order,” and not in the root directory, “means the Trojans were not already on the external hard drive that was sent to Mr. Campbell and were more likely placed in that folder intentionally with the goal of taking command of Mr. Campbell’s computer while also stealing passwords to his account.”

In addition to the malware found on the drive, Campbell’s motion for sanctions alleges that entire email accounts were deleted, that emails which could have been recovered were purged from the system, and that emails which were previously provided in response to Freedom of Information Act (FOIA) requests had improper deletions. Campbell also states in the motion that the police department’s IT specialist attended a convention ten days after the court granted Campbell’s motion to compel evidence last May. According to Campbell, the expert took classes on secure data deletion, whistleblower investigation and monitoring employee activity, but did not take classes offered on eDiscovery and preservation of evidence.

Campbell is asking for a default judgment for his clients and that the defendants be held in criminal contempt of court, among other sanctions.

So, what do you think? Do you check data produced to you for the presence of malware? 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 Rules on Dispute about Search Terms and Organization of Produced Documents: eDiscovery Case Law

In Lutzeier v. Citigroup Inc., 4:14-cv-00183-RLW (E.D. Mo. Feb. 2, 2015), Missouri District Judge Ronnie I. White ruled on two motions to compel discovery by the plaintiff, addressing (among other things) disagreement on search terms to be used by the defendant and lack of organization and labeling of the defendant’s production to date.

Case Summary

In this employment termination dispute, the plaintiff filed a motion to compel defendant’s discovery in several areas, including asking the Court to order the defendants to add five categories of search terms, as follows:

(1) “Executive training” and/or “leadership development training program”;

(2) “PEP” and/or “program expenditure proposal” and/or “internal control”,

(3) “OCC,” “office of comptroller of currency,” “FRB,” “federal reserve board,” and/or “consent order”;

(4) “Insufficient assurance”; and

(5) “Whistleblower,” “retaliate,” “retaliation,” “SOX,” “Sarbanes Oxley,” and/or “Dodd Frank.”

The defendants claimed that the new categories of search terms were “so common and generic that they will return a significant volume of irrelevant documents that it is not sufficient to justify the additional burden”, maintaining that using the search protocol for “Fred,” “Lutzeier,” “LOIS,” “COSMOS,” and “Champney” would produce all of the relevant documents. The defendants also claimed that adding these additional search terms would produce an additional 555,909 documents and, therefore, the burden “greatly outweighs the likelihood that these searches will yield additional documents not already captured by Defendants’ search protocol.”

In the plaintiff’s second motion to compel, he complained that the defendants had produced in excess of 46,217 documents without providing any indication as to which documents are responsive to which of Plaintiff’s 58 requests for production. The defendants acknowledged that they did not organize and label their production, but argued that the ESI agreement dictates the method of production and further claimed that, even if Rule 34(b)(2)(E) controls, they had complied with its requirements as the document production was fully searchable, “which negates any need to organize the production”.

Judge’s Ruling

Judge White agreed that “the majority of the search terms suggested by Plaintiff are too generic and are likely to produce a large number of documents that are irrelevant to this case” and found that “the current search criteria adequately ensures that the proper documents that are relevant to Plaintiff’s causes of action are produced”. As a result, he denied the plaintiff’s request to additional search criteria, except for the phrase “consent order” because “there appears to be some confusion as to whether other consent orders exist that are relevant to this case”.

As for organization of the production, Judge White ruled that the method of the defendants’ production “complies with both the ESI agreement and with Rule 34″. Both parties relied on Venture Corp. Ltd. v. Barrett in their arguments, and Judge White held that the defendants “have complied with the requirements outlined there”, finding “that Defendants’ production is in a reasonably usable form or forms and/or the production is searchable, sortable and paired with relevant metadata.”

So, what do you think? What information should courts require to be able to rule on the relevance of search terms? 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. eDiscoveryDaily 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

You Don’t Get a Second Chance to Make a First Document Production Request: eDiscovery Case Law

In Allison v. Clos-ette Too, LLC, No. 14 CV 1618 (LAK)(JCF) (S.D.N.Y. Jan. 9, 2015), 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.

Case Summary

In this employment dispute, the plaintiff originally requested ESI from the defendants in July 2014, without specifying a format. The defendants responded to the plaintiff’s demands later that month, and supplemented their response on various dates and the plaintiff did not object to the format of these productions. However, when the defendants requested that all ESI be produced in native format, the plaintiff was inspired to make a reciprocal request regarding the documents previously produced by the defendants. Following an oral discussion and request by plaintiff’s counsel that the defendants reproduce the earlier production in native format, the defendants declined to do so and the plaintiff filed the instant motion to compel.

Judge Francis dealt with the plaintiff’s request swiftly, as follows:

“Under Rule 34 of the Federal Rules of Civil Procedure, a party may specify the form in which electronically stored information is to be produced. Fed. R. Civ. P. 34(b)(1)(C). “If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii). The plaintiff did not originally object to the format of the defendants’ productions…She does not appear to contest that it is “reasonably usable,” nor does she even allege that native format documents would be more useful to her. As “[a] party need not produce the same electronically stored information in more than one form,” Fed. R. Civ. P. 34(b)(2)(E)(3), the plaintiff’s motion to compel is denied.”

So, what do you think? Should the plaintiff have been entitled to a second production? 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. eDiscoveryDaily 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. eDiscoveryDaily 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 Awards Attorney Fees to Defendant After Delayed Production by Plaintiff: eDiscovery Case Law

In Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp., 1:14-cv-00151 (USDC W.D. Mich. Nov. 7, 2014), Michigan Magistrate Judge Phillip J. Green awarded some (but not all) of the attorney fees requested by the defendant after the plaintiff “made repeated promises to produce the subject documents”, but “failed to do so for nearly three months after the deadline for responding to Westport’s Rule 34 request” and “compliance was obtained only after Westport filed its motion to compel”.

Case Summary

In the reinsurance dispute described by the judge as a “document-intensive case”, the parties filed a Joint Status Report on May 7, 2014 in which they agreed “to make available” by May 28, certain identified documents without the need of a formal request for production. The deadline for voluntary production was extended at the plaintiff’s request to June 4 and the defendant completed its voluntary production of documents on that date. However, the plaintiff failed to do so.

The defendant sent the plaintiff inquiries as to the status of its production on June 10, 12 and 16. After receiving no response, on June 17, the defendant served a Rule 34 request for a production of documents, including those identified by the plaintiff for voluntary disclosure. The Rule 34 request incorporated the parties’ previous agreement to produce electronic documents in single page TIFF format with DII load file or native format within their original file structure. The defendant sent a reminder to the plaintiff on July 11 of their agreement to voluntarily produce the documents identified in the Joint Status Report and “specifically asked MMMIC’s counsel to advise if that understanding was incorrect”, which the plaintiff apparently never did.

The parties agreed to give the plaintiff an additional 14 days to produce responsive documents and, on August 1, the plaintiff responded to the Rule 34 request, indicating that “many documents [were] ready for production,” but also requested a protective order to prevent dissemination of the documents to persons not involved in the case. On August 6, the parties filed a joint proposed protective order regarding the handling of “Discovery Material”, but reminders from the defendant to the plaintiff to produce documents on August 6, 11 and 14 received no reply from the plaintiff, so on August 25, the defendant filed a motion to compel. After further back and forth, the parties agreed to an order on October 2, which noted that the production would be made no later than October 10. On October 13, the plaintiff finally produced 66,000 pages of documents in electronic format on three CDs.

Judge’s Decision

Judge Green stated that “MMMIC made repeated promises to produce the subject documents, beginning with the May 7, 2014, Joint Status Report, but it failed to do so for nearly three months after the deadline for responding to Westport’s Rule 34 request, and more than four months after the deadline for voluntary production set by the Court in the Case Management Order. Even then, compliance was obtained only after Westport filed its motion to compel, and on the eve of the scheduled hearing.

That constitutes a sufficient basis for awarding reasonable attorney’s fees and expenses to Westport.”

The defendant sought $10,399.75 in attorney’s fees and expenses under Rule 37(a)(5)(A), but Judge Green, after a detailed review of the hours expended (and factoring in a 7.5% discount), awarded $3,180.72.

So, what do you think? Should the fees have been awarded for the plaintiff’s late production? 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. eDiscoveryDaily 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiffs Not Sanctioned for Late Production, Citing Their $29,000 Expense to Hire Experts to Assist: eDiscovery Case Law

In Federico et al. v. Lincoln Military Housing LLC, et al., 2:12-cv-80 (E.D. VA, Dec. 31, 2014), Virginia Magistrate Judge Douglas E. Miller, concluding that the defendants had not established that the plaintiffs had acted in bad faith when failing to meet production deadlines, declined to impose “any further sanction against Plaintiffs beyond the $29,000 expense associated with their expert’s production of the Facebook records”, except for a portion of the reasonable attorney’s fees associated with the original motion to compel.

Case Summary

In this class action for personal injury and property damage allegedly arising from mold in military housing, there had been numerous discovery disputes, including several motions for sanctions and reciprocal requests for costs and fees related to the parties’ alleged non-compliance. On June 4, 2014, the Court held the first hearing on discovery disputes, which came on the plaintiffs’ motions for Protective Orders seeking relief from the defendants’ requests for production, and certain subpoenas, during which the Court admonished the assembled plaintiffs present at the hearing to turn over related material to their attorney and permit counsel to determine whether it was relevant. The Court also advised the plaintiffs that there could be consequences if materials were not provided as required by the Rules.

After the plaintiffs’ supplemental productions were still considered incomplete by the defendant, the plaintiffs’ counsel stated they had engaged an outside vendor to provide estimates (which were then estimated to be $22,450, eventually rising to $29,000) and design a search protocol for electronic media. On July 10, the plaintiffs requested an emergency hearing to extend the July 17 production deadline, which the Court declined to do, advising plaintiffs’ counsel that if the plaintiffs were unable to produce any more responsive documents, they were required to advise the Court and defendants of the nature of any search they had performed. After the plaintiffs failed to meet the production deadline, the defendants filed a motion for sanctions to dismiss the plaintiffs’ claims for failure to comply.

In subsequent oral argument regarding the defendants’ motion, the plaintiffs indicated that they had engaged their IT consultant, who was present and described the ongoing process for searching and processing relevant records, primarily from social media. As a result, the Court deferred any ruling until after the consultant’s production. In September, Plaintiffs produced the results of their consultant’s search, including over 5,000 records from social media, and contended that any material omitted resulted from their clients’ inexperience in managing electronic production and not from bad faith or intentional destruction of evidence.

Judge’s Decision

Judge Miller used the Fourth Circuit’s four-part test to help decide whether to impose sanctions, as follows: (1) whether the non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions would have been effective. With regard to the bad faith factor, Judge Miller stated:

“Defendants have failed to establish that any Plaintiff deliberately destroyed evidence known to be relevant, or otherwise acted in bad faith. While Plaintiffs’ delayed production should not have required Court action, they did eventually produce a nearly complete record of email and social medial posts and these materials were available to Defendants prior to most of the depositions. In addition, the limited relevance of the voluminous material produced suggests that any gaps in production were not likely intentional and do not prejudice Lincoln’s defense.”

As a result, Judge Miller ruled that the Court “declines to impose any further sanction against Plaintiffs beyond the $29,000 expense associated with their expert’s production of the Facebook records, but will award a portion of the reasonable attorney’s fees associated with the original motion to compel.”

So, what do you think? Should the plaintiffs have been sanctioned for their late production or was the judge’s ruling appropriate, considering the plaintiffs’ challenges and expense and efforts to comply? 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. eDiscoveryDaily 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.