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Proportionality

Court Grants Defendant’s Request for $18.5 Million in Attorney Fees and Costs: eDiscovery Case Law

In Procaps S.A. v. Patheon Inc., 12-24356-CIV-GOODMAN, 2014 U.S. Dist. (S.D. Fla. Aug. 17, 2017), Florida District Judge Jonathan Goodman, in a very lengthy ruling, granted the defendant’s supplemental motion for attorney’s fees and non-taxable costs in the full amount requested of $18,494.846.

Case Background

In this case regarding an antitrust lawsuit filed by the plaintiff in which the defendant eventually won on summary judgment, the defendant filed a motion for costs and a motion for attorney’s fees and non-taxable costs.  The Court eventually entered an order on the defendant’s bill of taxable costs, awarding it a judgment of $173,480.80 in taxable costs.  After the plaintiff appealed, the Eleventh Circuit Court of Appeals affirmed the Court’s summary judgment ruling.  In doing so, the Eleventh Circuit explained that “at bottom, this is essentially a breach of contract case — and so Procaps’s failure to support an antitrust theory is not all that surprising.”

The defendant then filed, under seal, (after extensive briefing, a multi-hour hearing and motion practice on other legal issues) a Supplemental Motion for Attorney’s Fees and non-taxable costs, explaining that the revised total amount sought is $18,494,846.  In the defendant’s Supplemental Motion, while the defendant noted that it used higher hourly rates for fees incurred in 2016 and 2017 because its hourly rates increased over time, those rates still represented the 47.25% reduction off its primary law firm’s standard rates ordered by the Court.

Both parties agreed that the non-exhaustive list of discretionary factors that are considered when evaluating a Florida Deceptive and Unfair Trade Practices Act (FDUTPA) fee application was found in the case Humane Society of Broward County, Inc. v. Florida Humane Society, 951 So. 2d 966, 971-72 (Fla. 4th DCA 2007), which stated the factors as:

(1) the scope and history of the litigation; (2) the opposing party’s ability to satisfy the award; (3) whether an award would deter others from acting in similar circumstances; (4) the merits of the respective positions, including the degree of [Procaps’] culpability or bad faith; (5) whether the claim brought was not in subjective bad faith but was frivolous, unreasonable, or groundless; (6) whether the defense raised a defense mainly to frustrate or stall; and (7) whether the claim brought was to resolve a significant legal question under FDUTPA law.

Judge’s Ruling

Judge Goodman, in considering the first factor, noted that “Nothing was easy in this case. Nothing. Basically, the parties fought about anything and everything.”  He also observed that “Procaps largely based its FDUTPA claim on its antitrust claim theory and sought both damages and attorney’s fees under this count…It continued to press despite the Court’s warning that it might be liable for all of Patheon’s fees under FDUTPA.”  Judge Goodman, noting that “in December 2015, Patheon explained that Procaps’ market value was $238.9 million”, also ruled that the plaintiff “does have the ability to pay an $18.5 million judgment.”

Considering the plaintiff’s culpability or bad faith, Judge Goodman spent a lot of time on this issue, including time discussing alleged prior misconduct by the plaintiff’s lead counsel in another case.  While he stated that “the Court is not going to consider the Surgery Centers case and similarly will not specifically consider the 16 bad faith factors (from this case) and the alleged appellate-level misconduct asserted by Patheon”, he also stated that the “facts underlying the 16 bad faith factors are, for the most part, true or substantially true (sic). They happened. The Court knows that they happened (or substantially happened) because of its involvement in this case for the past four-and-a-half years.”

Ultimately, Judge Goodman determined that all the factors necessary to grant the fee request were present and stated that “the Court notes that even Procaps admits that the antitrust theory inherent in its FDUTPA claim was dependent on the success it had with the federal Sherman Act antitrust claim. Therefore, those federal claims concerned allegations of deceptive and unfair trade practices, which means that Patheon, as the prevailing party, is entitled to fees and costs for the entire action.”  As a result, Judge Goodman, determining that the defendant’s method for calculating the fees was proper, granted the defendant’s supplemental motion for attorney’s fees and non-taxable costs in the full amount requested of $18,494.846.

We’ve covered this case three other times previously – here are the three links to those previous rulings.

So, what do you think?  Is that a reasonable award, given all of the plaintiff’s alleged misconduct over the course of the case?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

Court Grants Most of Plaintiff’s Cost Recovery Request, Including All eDiscovery Costs: eDiscovery Case Week

eDiscovery Case Week continues.  We’ll cover four cases this week and, yesterday, we covered our Wednesday webcast Key eDiscovery Case Law Review for First Half of 2017 (click here to check out the replay of that) as well.  Here’s the next case.  Just as there are five “Sharknado” movies (sadly), there will be five case law related posts this week.

In Ariel Inv., LLC v. Ariel Capital Advisors LLC, No. 15 C 3717 (N.D. Ill., July 17, 2017), Illinois District Judge Matthew F. Kennelly granted the prevailing plaintiff’s request to tax most requested costs in the amount of $99,378.32, including the entire amount ($85,666.51) requested for reimbursement for eDiscovery costs.

Case Background

In this case where the plaintiff sued the defendant alleging trademark infringement, unfair competition, and cybersquatting in violation of the Lanham Act, the Court granted summary judgment for the defendant on the cybersquatting claim before trial, but the plaintiff prevailed in a bench trial on its remaining Lanham Act and state law claims.  The Court entered a permanent injunction barring the defendant from continuing to use the term “Ariel” in connection with its business.

After the ruling, the plaintiff submitted a request to cover “nearly $110,000 in costs” under Federal Rule of Civil Procedure 54(d).  The defendant contended that no costs should be awarded because the plaintiff only partially prevailed, whereas the plaintiff argued that it was the prevailing party because it was awarded substantial relief.

Judge’s Ruling

With regard to the defendant’s claim that no costs should be awarded because the plaintiff only partially prevailed, Judge Kennelly ruled: “The prevailing party for purposes of Rule 54(d) is the party that prevails with regard to a substantial part of the litigation…There is no question that Ariel Investments prevailed with regard to a substantial part of the litigation. Indeed, it was the prevailing party on all of its claims other than the cybersquatting claim.”

With that issue decided, Judge Kennelly considered reimbursement requests related to costs for depositions, court transcripts, exemplification and other costs, including eDiscovery costs totaling $85,666.51.  Judge Kennelly noted that the “Seventh Circuit has not addressed in detail the recoverability of e-discovery expenses” and that “[t]his Court and others in the district have previously followed the reasoning of the Third Circuit” in cases like Race Tires of America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) (covered by us here), which ruled against several eDiscovery related costs as not constituting “making copies”.

Nonetheless, Judge Kennelly stated: “Ariel Investments has sufficiently shown that the costs it requests are recoverable. Specifically, Ariel Investments has established, by way of an affidavit offered in response to Ariel Capital’s challenge to the content of the e-discovery vendor invoices, that the charges for which it seeks reimbursement all involved expenses for ‘the process by which documents in a variety of native forms . . . are copied and converted’ to a readable format…Ariel Capital cannot reasonably object to otherwise recoverable costs that it required Ariel Investments to incur.”

As a result, Judge Kennelly granted the plaintiff’s request to tax the entire amount ($85,666.51) requested for reimbursement for eDiscovery costs and total costs in the amount of $99,378.32.

So, what do you think?  Why do some courts award reimbursement of eDiscovery costs while others don’t?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

Court Rules that Plaintiff’s Request for Data from Defendant is “Extraordinarily Burdensome”: eDiscovery Case Week

Why is a picture of a shark on this post?  Because it’s Shark Week on the Discovery Channel (not electronic discovery of course, but the generic kind of discovery).  To celebrate Shark Week in eDiscovery terms, we’ve decided to make this week eDiscovery Case Week on the eDiscovery Daily blog.  We’ll cover four cases in the next five days (catching up on a couple from earlier this year) and will cover our Wednesday webcast Key eDiscovery Case Law Review for First Half of 2017 (click here to sign up for that) as well.  Here’s the first case.

In Solo v. United Parcel Services Co., No. 14-12719 (E.D. Mich. Jan. 10, 2017), Michigan Magistrate Judge R. Steven Whalen agreed that the defendant showed that the level of data requested by the plaintiff “would be extraordinarily burdensome” and ordered the parties to discuss the defendant’s proposed methodology and “meet, confer, and agree on a mutually acceptable sampling methodology” if the plaintiff did not agree to the defendant’s approach.

Case Background

In this class action suit, the plaintiffs alleged that the defendant consistently overcharged for delivery charges that had a declared value of $300 or more.  In an interrogatory, the plaintiffs requested the defendant to provide detailed information for packages with a declared value of $300 or more over the alleged overcharging period, which could extend as far back as 2008 from the end date of December 29, 2013.

In response, the defendant contended that providing the package-specific information requested would be excessively burdensome in terms of both time, manpower, and costs and indicated that the “package level detail” requested by Plaintiffs is only maintained in a “live” format (easily accessible electronically) for a limited time period and is then archived on backup tapes.  To bolster its claim that the request was burdensome, the defendant estimated that it would take at least six months just to restore the archived tapes as described above, at a cost of $120,000 in labor, requiring its employees to take on responsibilities outside of their regular duties and that cost estimate did not include the time and expense of analyzing the data once extracted in order to answer the interrogatory.

Instead, the defendant provided an estimate of the number of packages with declared value over $300 that were shipped during the period June 30, 2013 to December 29, 2013 – this time period was chosen because its contract terms state that a customer must give notice of a billing dispute within 180 days, or the issue is waived.

Judge’s Ruling

In evaluating the defendant’s response to the plaintiff’s request, Judge Whalen stated: “I am persuaded that UPS has carried its burden of showing that producing package-specific information going as far back as 2008 would be extraordinarily burdensome, particularly at this stage of the proceedings. Given the scope of UPS’s business operations and the exigencies of its proprietary billing system, there is a valid business reason for maintaining ‘live’ data for a limited period of time and storing older data on backup tapes.”  Judge Whalen also agreed with the defendant that if it prevailed on the 180 day limit issue, “the most likely period that will be found relevant will be the six-month time frame from June 30, 2013 to December 29, 2013.”

With that in mind, Judge Whalen stated: “The estimate that UPS produced for the six-month period encompassing the latter half of 2013 was based on a method that extrapolated “live” data from a more recent period. At the time this motion was filed, Plaintiffs were not privy to UPS’s methodology, given that it involved disclosure of proprietary information. However, now that a protective order has been entered [Doc. #74], UPS will disclose its methodology under the “attorneys’ eyes only” provision. It may be that Plaintiff is satisfied that UPS’s methodology is sufficient. If not, the parties will meet, confer, and agree on a mutually acceptable sampling methodology.”

So, what do you think?  Did the defendant provide enough basis to show the plaintiff’s request to be extraordinarily burdensome?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

Cloud Data is Within Defendant’s Possession, Custody and Control, Court Rules: eDiscovery Case Law

This case is a few months old, but is one of the cases we will cover in next week’s webcast Key eDiscovery Case Law Review for First Half of 2017 (click here to sign up)…

In Williams v. Angie’s List, No. 1:16-00878-WTL-MJD (S.D. Ind. April 10, 2017), Indiana Magistrate Judge Mark J. Dinsmore found that the plaintiffs “have met their burden of demonstrating” that the defendant has a legal right to obtain background data in Salesforce and that “Plaintiffs request for production properly seeks documents within Angie’s List’s ‘possession, custody, or control’ under Rule 34(a).”  He also denied the defendant’s request for cost shifting.

Case Background

In this case where 48 current and former employees of Defendant claimed they were entitled to “substantial compensation” for hours worked without pay, those plaintiff claimed that the defendant instructed them to underreport their overtime hours on their computerized time records.  Because the plaintiffs frequently worked from home, they sought production of “background data” automatically recorded while they were working in the defendant’s sales platform, Salesforce, in an effort to “close the gaps” allegedly left by the other records.

The defendant argued that the plaintiffs’ request for the Salesforce records falls outside of Rule 34(a)(1) because the records are outside of the defendant’s “possession, custody, or control” because Salesforce is a third-party provider of services and the defendant has no greater rights to the background data than any other person. The defendant also cited a $15,000 invoice it had received from Salesforce for the background data it had already provided to the plaintiffs.  The plaintiffs, in reply, argued that the defendant’s argument is belied by their conduct in producing a year’s worth of background data.  The defendant also argued if the Court grants the Motion, it should apportion some or all of the costs of production to the plaintiffs.

Judge’s Ruling

In making his ruling, Judge Dinsmore observed that “evidence before the Court demonstrates that Angie’s List and Salesforce have a longstanding contractual relationship and that the background data is recorded ‘for’ Angie’s List as part of the ordinary course of their business relationship. Even while end users such as Angie’s List ‘ordinarily’ do not access such data, the evidence clearly demonstrates that they are able to do so upon asking. In fact, the most compelling fact before the Court is that Angie’s List, despite dragging its feet and protesting vociferously, were actually able to retrieve and produce one year’s of the background data, collected for Angie’s List as part of its use of Salesforce’s sales platform, to Plaintiffs in discovery. The fact that Angie’s List has already produced one-third of the requested data, coupled with the evidence demonstrating the relationship between Angie’s List and Salesforce, compels the conclusion that Angie’s List has a ‘legal right to obtain’ the discovery sought.”

As a result, Judge Dinsmore concluded that “Plaintiffs request for production properly seeks documents within Angie’s List’s “possession, custody, or control” under Rule 34(a).”  After acknowledging the Court’s authority to “proportion the costs of e-discovery in cases of undue cost or burden”, Judge Dinsmore considered eight proportionality related factors to rule against cost shifting of some of the production costs to the plaintiffs.

So, what do you think?  Should the plaintiffs have been required to split the costs?  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.

If You’re a Small Firm, Learn Here Why There Has Never Been a Better Time to Embrace eDiscovery: eDiscovery Trends

Until recently, state of the art eDiscovery technology was only available to the largest law firms and corporations. Smaller firms and organizations were essentially priced out of the market and couldn’t afford the solutions that could be used by the “big boys” to manage their discovery workloads. Times have changed – thanks to cloud-based, software-as-a-service (“SaaS”) automated solutions that have made full-featured eDiscovery solutions affordable for even small and solo firms.  What do you need to do to take advantage of that?

On Wednesday, June 28 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast How SaaS Automation Has Revolutionized eDiscovery for Solo and Small Firms.  This one-hour webcast will discuss how SaaS automation technology has revolutionized eDiscovery for solo and small firms today and why there has never been a better time for those firms to embrace eDiscovery.  Examples of topics being discussed include:

  • How Automation and the Cloud is Affecting All Industries, including eDiscovery
  • Drivers for the eDiscovery Automation Revolution
  • The Impact of Automation and the Cloud on the Lawyer Job Market
  • The Evolution of eDiscovery Technology
  • Whip Me, Beat Me, Call Me EDna: Two Challenges, Seven Years Apart
  • Key Components of a SaaS eDiscovery Automation Solution
  • Cost Alternatives for SaaS eDiscovery Automation Solutions
  • Can Automation Really Disrupt the eDiscovery Industry?

I’ll be presenting the webcast, along with Karen DeSouza, Director of Review Services at CloudNine and we will discuss why there has never been a better time for those firms to embrace eDiscovery.  To register for the webcast, click here.

Also, my colleague Julia Romero Peter will be in Denver on Tuesday, June 20 for the Denver leg of The Master’s Conference.  The conference will be held at the NATIV Hotel Denver at 1612 Wazee St, Denver, CO 80202.  If you’re going to be in Denver that day (or close enough to come in for it), you can register here for the full day event (or attend for just half a day, if that’s all your schedule permits).  Julia will be moderating a panel discussion on Data, Discovery, and Decisions: Extending Discovery From Collection To Creation, at 11:15am on that day, with a group of knowledgeable panelists.  If you’re in Denver, feel free to check it out!

So, what do you think?  Are you a small firm struggling to get control of eDiscovery, at a price your firm can afford?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Texas Supreme Court Denies Request for Mandamus Relief without Prejudice Over Native File Production: eDiscovery Case Law

In the case In Re State Farm Lloyds, Relator, Nos. 15-0903, 15-0905 (Tex. Sup. Ct. May 26, 2017), the Texas Supreme Court, in an opinion delivered by Justice Eva M. Guzman, denied the petitions for writ of mandamus without prejudice, “affording the relator an opportunity to reurge its discovery objections” (regarding the requesting party’s request for a native file production) to the trial court in light of its opinion.

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, with format of production being among the primary issues as the requesting party (the homeowners) requested native file production from the producing party (State Farm) in this case.  The trial court held an evidentiary hearing on the discovery issues, after which it granted the motion to compel native production of the ESI.  The court of appeals denied mandamus relief (we covered that ruling here), which led to State Farm’s appeal to the Texas Supreme Court.

Court Opinion

In the opinion delivered by Justice Guzman, the Court noted that “Under our discovery rules, neither party may dictate the form of electronic discovery. The requesting party must specify the desired form of production, but all discovery is subject to the proportionality overlay embedded in our discovery rules and inherent in the reasonableness standard to which our electronic-discovery rule is tethered.”

State Farm’s position was that it processes more than 35,000 new claims each day and, in the ordinary course of business, information related to those claims is routinely converted into static format and uploaded to its Enterprise Claims System (ECS), “the system of record” for claims handling at State Farm.  Its expert contended that ESI in “static format is easier to Bates number for discovery; allows efficient management of documents as exhibits at depositions, hearings, and trials; enables redaction, which is not possible with most native forms of ESI; and avoids intentional or unintentional alteration of the information, which may be difficult to detect or propagate further disputes about data integrity”.  The expert claimed that production in native form “would require State Farm to engineer a new process that includes determining upstream sources of the data, validating the upstream sources, determining whether native files of the information still exist, and developing an extraction method for the native versions.”  The expert did not quantify the time or expense involved, but claimed that “[t]hese additional steps would be an extraordinary and burdensome undertaking for State Farm” and are unnecessary because State Farm’s proffered production form is “reasonably usable.”

In asserting that searchable static format is not a “reasonably usable form,” the homeowners supported their proposed electronic discovery protocol with expert testimony that static images have less utility compared to native format, which would allow them to see formulas in Excel spreadsheets, search and sort the information by data fields, analyze the relationship of data, and see information in color that may not translate as accurately to stored or printed static images. Referring to static-form production as “the electronic equivalent of a print out,” the homeowner’s expert explained that useful metadata would not be viewable in static form, including tracked changes and commenting in Word documents; animations, other dynamic information, and speaker notes in static printouts of PowerPoint documents; and threading information in emails that would allow construction of a reasonable timeline related to State Farm’s processing of the homeowners’ claims.  Summarizing the homeowners’ position, the expert explained, “[W]e’re not imposing any additional duties, we’re only asking that they not be allowed to dumb down, to downgrade the data for production.”

The Court’s opinion noted that “Whether production of metadata-accessible forms is required on demand engages the interplay between the discovery limits in Rule 192.4 and production of electronic discovery under Rule 196.4” and also stated that “When a reasonably usable form is readily available in the ordinary course of business, the trial court must assess whether any enhanced burden or expense associated with a requested form is justified when weighed against the proportional needs of the case.” 

The Court also discussed the following seven factors when considering proportionality of the request: 1. Likely benefit of the requested discovery, 2. The needs of the case, 3. The amount in controversy, 4. The parties’ resources, 5. Importance of the issues at stake in the litigation, 6. The importance of the proposed discovery in resolving the litigation and 7. Any other articulable factor bearing on proportionality.  The Court also considered parity with Rule 34 of the Federal Rules of Civil Procedure and noted that “Rule 34’s plain language does not permit either party to unilaterally dictate the form of production for ESI.”

The Court concluded by stating:

“Today, we elucidate the guiding principles informing the exercise of discretion over electronic-discovery disputes, emphasizing that proportionality is the polestar. In doing so, we further a guiding tenet of the Texas Rules of Civil Procedure: that litigants achieve a ‘just, fair, equitable and impartial adjudication . . . with as great expedition and dispatch and at the least expense . . . as may be practicable.’ Because the trial court and the parties lacked the benefit of our views on the matter, neither granting nor denying mandamus relief on the merits is appropriate. Accordingly, we deny the request for mandamus relief without prejudice to allow the relator to seek reconsideration by the trial court in light of this opinion.”

So, what do you think?  Do you agree with State Farm’s arguments that producing native format ESI would be “extraordinary and burdensome” and that its proposed production form is “reasonably usable.”?  Please share any comments you might have or if you’d like to know more about a particular topic.

One footnote (literally): This opinion actually cited one of our blog posts in the footnotes, when discussing the relevance of metadata to the request – this post regarding how metadata played a key role in a $10.8 million whistleblower lawsuit verdict.

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.

The Internet is Even Busier That it Was Last Year: eDiscovery Trends

About this time last year, I published (or re-published, if you will) a terrific infographic that illustrated what happens within the internet in a typical minute in 2016.  Since I will be part of a panel discussion at The Master’s Conference in San Francisco next Tuesday and the topic will be big data and data discovery, I thought it would be good to take a fresh look at what happens in a 2017 internet minute!

This updated graphic, created by Lori Lewis, illustrates what happens within the internet in a typical minute in 2017.  There are several different categories tracked in this graphic than the one we referenced last year, so it’s interesting to see what’s tracked this year.  For the categories that are the same, they are all (not surprisingly) up, compared to last year – some more than others.  More data to manage within organizations and during litigations, investigations and audits than ever!  Here is the graphic again, full sized:

They say a picture says a thousand words, so consider my blog post complete for today!  :o)

So, what do you think?  How have the challenges of Big Data affected your organization?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Requesting 72 Spelling Variations on Five Search Terms Spells Trouble for Plaintiffs: eDiscovery Case Law

In Diesel Power Source et. al. v. Crazy Carl’s Turbos et. al., No. 14-826 (D. Utah, Feb. 23, 2017), Utah Magistrate Judge Brooke C. Wells denied the plaintiff’s Motion for Sanctions for the failure of the defendant to produce ESI, finding that the plaintiff had failed to sufficiently narrow its search terms by introducing 72 spelling variations on the five terms it proposed.  Judge Wells also denied the defendants’ Motion for Order to Show Cause and for Sanctions, finding that the defendants had failed to provide any “certification that the parties made reasonable efforts to reach agreement on the disputed matters.”

Case Background

In this case regarding defamatory comments and photographs allegedly posted on the internet by the defendants about the plaintiffs (who were business competitors), Judge Wells led off her order by stating: “To state that the parties in this matter are not cooperating with each other is an understatement.”  Throughout the case, each of the parties had taken turns filing motions for sanctions and each of the parties had complained to the court about the other side failing to provide requested discovery, causing Judge Wells to note that the case “has sat stuck in the quagmire of discovery despair” since it was filed in November 2014.

The plaintiffs sought sanctions against the defendants for their alleged failure to comply with a May 2016 court order compelling them to produce certain items. Following a hearing held in December 2016, it became apparent that some items were still outstanding. The court took the Motion for Sanctions under advisement before finding in January 2017 that the email search terms submitted by the plaintiffs were “overly generic and result in an undue burden placed upon Defendants”. The court ordered the plaintiffs to provide “five detailed search terms that must be more detailed than those previously submitted”.

Following the court’s order, the plaintiff provided the defendants with five search terms, but also provided 72 “spelling variations” on these search terms for a total of 77 search terms.  Due to the number of search terms, the defendants filed a Motion for Order to Show Cause and for Sanctions, again asserting that the plaintiff was on a fishing expedition and also arguing that the plaintiff had failed to comply with the court’s May 2016 order, asking for sanctions citing to the Ehrenhaus factors.  In response, the plaintiff argued it is easy to search using the 72 “spelling variations” if quotations are used.

Judge’s Ruling

In considering the motions, Judge Wells stated: “After considering all that has happened during discovery the court finds both parties to be at fault. First, the court finds Plaintiff has failed to sufficiently narrow its search terms. Previously the court found Plaintiff’s search terms to be overly generic placing an undue burden upon Defendants. Now, Plaintiff has taken the court’s instruction to provide five search terms to an extreme by supplementing it with 72 additional ‘spelling variations.’ Such an expansion is not within the spirit and intent of the court’s prior orders, its comments during hearings or within the principles of proportionality found in the discovery rules.”  As a result, Judge Wells ruled that “Plaintiff is permitted to use the five search terms it has provided along with three listed spelling variations, three for each of the five search terms, for a total of twenty terms.”

As for the defendants’ motion, Judge Wells stated that “Defendants Motion for Order to Show Cause and for Sanctions not only misstates the record before the court, it also fails to comply with the Short Form Discovery Rules as set forth by Judge Nuffer and as set forth in Local Rule 37-1. Defendants have failed to provide any ‘certification that the parties made reasonable efforts to reach agreement on the disputed matters’ and that provides an additional basis to deny Defendants motion.”  Judge Wells also noted that “[m]uch of Defendants motion is an attempt to draw the court’s attention away from Defendants own malfeasance. There is no excuse for Defendants failure to provide the federal tax returns and bank statements.”

Judge Wells also issued a warning to “both parties that going forward there needs to be a renewed spirit of cooperation otherwise the court will use its inherent powers to sanction the attorneys in this case for the continued stonewalling that has been a reoccurring theme in this litigation.”

So, what do you think?  Should courts rule on limiting spelling variations 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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

Court Defines Narrowed Scope for Requests for Social Media Data: eDiscovery Case Law

In Scott v. United States Postal Service, No. 15-712-BAJ-EWD (M.D. La. Dec. 27, 2016), Louisiana Magistrate Judge Erin Wilder-Doomes granted the defendant’s Motion to Compel Discovery in part, ordering the plaintiff to provide complete responses to the defendant’s interrogatory and request for production, but only after she limited the scope of both requests, determining them to be “overly broad”.

Case Background

In this personal injury case stemming from an automobile accident involving a vehicle driven by a United States Postal Service worker while that worker was on the job, the defendant requested via Interrogatory for the plaintiff to “Identify any and all social media (including but not limited to Facebook, Instagram, Twitter)” she had used since June 6, 2014 (the date of the accident).  The defendant also requested (via Request for Production) for the plaintiff to “Produce all postings related to any type of physical or athletic activities from June 6, 2014, to present on all social media websites, including, but not limited to Facebook, Instagram and Twitter.”

In her written discovery responses, Plaintiff objected to each of these requests by asserting that “the information requested is inclement, immaterial and not reasonably calculated to lead to the discovery of admissible evidence.”

The defendant sent a letter to the plaintiff in July 2016, explaining that it had a good faith basis for believing that the plaintiff had posted photographs and other information on social media about her activities since the accident, which involve physical activity (including one photograph on Facebook account showing the plaintiff and her fiancé in ski attire on a snow covered mountain), and that such information is relevant to the case.

After efforts to confer were unable to resolve the dispute, the defendant filed its Motion to Compel in September 2016.  In response, the plaintiff argued that the defendant’s request for all of her social media photos was overly broad because it would require the production of a significant amount of irrelevant information.  In its Reply Memorandum, the defendant maintained that the plaintiff had waived her objections to the discovery requests at issue and that the defendant was entitled to the information and documents requested because they are relevant to the plaintiff’s personal injury claims.

Judge’s Ruling

Noting that “Plaintiff does not address Defendant’s argument that her failure to timely voice adequate objections to the discovery requests constitutes a waiver of any objection she may have to the discovery requests”, Judge Wilder-Doomes found that the “boilerplate” language used by the plaintiff in objecting “does not suffice to assert a valid objection to the discovery requests” and found that the plaintiff had waived her objections to the discovery requests.

Despite that ruling, Judge Wilder-Doomes found the discovery requests to be “overbroad” and decided to “limit the requests in accordance with Fed. R. Civ. P. 26(b)(1)”.  With regard to the Interrogatory, Judge Wilder-Doomes limited the request to “identifying all social media accounts that Plaintiff has used since the underlying accident on June 6, 2014, her usernames, whether she has accessed the accounts since the accident, and the last time she accessed the accounts”.

With regard to the Request for Production, she limited the request to “all of Plaintiff’s social media postings, including photographs, since the June 6, 2014 accident that: (1) refer or relate to the physical injuries Plaintiff alleges she sustained as a result of the accident and any treatment she received therefor; or (2) reflect physical capabilities that are inconsistent with the injuries that Plaintiff allegedly suffered as a result of the accident.”

So, what do you think?  Should courts limit the scope of discovery requests?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

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

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

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

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

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

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

So, what do you think?  Should law firms bill full associate rates for document review?  Please share any comments you might have or if you’d like to know more about a particular topic.

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