Close
Enter your
text here

Proportionality

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

2016 eDiscovery Case Law Year in Review, Part 2

As we noted yesterday, eDiscovery Daily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to admissibility and proportionality.  Today, let’s take a look back at cases related to cooperation, disputes about discovery, eDiscovery cost reimbursement, form of production disputes, privilege disputes and (once again) the ubiquitous Apple v. Samsung case.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

But first, if you want to learn more about what every attorney should know about eDiscovery in 2017, click here.

COOPERATION

Why can’t we all just get along?  There were several instances where parties couldn’t agree and had to kick issues up to the court for resolution, here are four such cases:

Withheld Evidence Leads to New Trial, Resignation of Senior City Attorney: In Colyer v. City of Chicago, Illinois District Judge Edmond E. Chang granted in part the plaintiff’s post trial motion, denying the plaintiffs’ request for a directed verdict, but granting their request for a new trial after it was discovered that the defendants’ attorney had “intentionally” withheld the recording of a police dispatcher’s description of a possible suspect that was key in determining whether Chicago police officers acted with excessive force in killing a suspect in a traffic stop.  The plaintiffs also were awarded their attorneys’ fees and costs expended on preparing for the first trial, conducting the trial itself, and conducting the post-trial discovery and briefing.

Dispute Over Adequacy of Defendant’s Production Leads to Court Ordered Meet and Confer: In Gardner et. al. v. Continental Casualty Company, Connecticut Magistrate Judge Joan Glazer Margolis, granting the plaintiff’s motion to compel in part, ordered the parties to meet and confer regarding “’sampling and iterative confinement’ or ‘quick peek protocol’ of the 38,000 documents ‘hit’ by the agreed upon search terms and notify the court in writing “about their progress, or lack thereof, on or before February 12, 2016.”

Plaintiff Must Cooperate on Search Terms, Says Court: In Pyle v. Selective Insurance Company of America, Pennsylvania Senior District Judge Terrence F. McVerry granted the defendant’s Motion to Compel Plaintiff to Provide ESI Search Terms “insofar as it seeks to compel Plaintiff to confer and come to an agreement on the search terms Defendant will use to cull through the additional email archives that Defendant has identified as having been retrieved.”

Court Orders Defendant to Produce Additional ESI Responsive to 78 “Unopposed” Search Terms: In Venturdyne, Ltd. d/b/a Scientific Dust Collectors v. Carbonyx, Inc., d/b/a Carbonyx Carbon Technologies, et. al., Indiana District Judge John E. Martin ordered the defendant to produce additional ESI to the plaintiff to be retrieved via 78 “unopposed” search terms that neither party objected to during negotiation over the plaintiff’s original list of 126 search terms.

DISPUTES ABOUT DISCOVERY

Here’s one case from this past year that was a general dispute about discovery:

Plaintiff’s Failure to Demonstrate Allegations Leads to Summary Judgment for Defendant: In Malibu Media, LLC v. Doe, in a case of dueling summary judgment motions, Illinois Magistrate Judge Geraldine Soat Brown denied the plaintiff’s motion for summary judgment, but granted the defendant’s summary motion in its entirety, concluding that the plaintiff had not presented sufficient evidence to prove its allegations of illegally downloading movies.

EDISCOVERY COST SHARING AND REIMBURSEMENT

This year, the two cases we covered related to eDiscovery cost reimbursement were split – sort of.  In the case where the request for eDiscovery cost reimbursement was upheld, the decision was made after the defendants conceded much of the storage and hosting costs they had claimed, leaving less costs to uphold.

Court Denies Request for Cost Reimbursement for Hosted eDiscovery Database: In Associated Electric & Gas Insurance Services, et. al. v. BendTec, Inc., Minnesota District Judge Michael J. Davis found that the decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp. to deny certain eDiscovery costs to be persuasive and ruled that “the costs of creating and maintaining an electronic platform for e-discovery are not recoverable under § 1920(4)”, denying the prevailing defendant’s request for reimbursement of over $123,000 in costs to maintain their ESI database.

Appeals Court Upholds Defendant’s Request for eDiscovery Cost Reimbursement: In Deere & Co. v. Duroc, LLC et. al., after the defendants conceded much of the storage and hosting costs they had claimed, the Federal Circuit Court of Appeals affirmed the district court ruling to uphold cost taxation requested by the defendants, including eDiscovery costs.

PRODUCTION FORMAT DISPUTES

We had three cases this year involving production format disputes, including one that led to sanctions for the defendant for failing to produce native format data (among other violations):

Court Denies Plaintiff’s Request for Native ESI Format, Approves Request for Index: In Stormo v. City of Sioux Falls, et. al., South Dakota District Judge Karen E. Schreier, ruling on several motions, denied the plaintiff’s motion to compel with regard to requiring the defendants to provide electronically stored information in its native format and metadata for these documents, but granted it with regard to providing an index explaining information about the documents.

Court Orders Defendant to Re-Produce Selected Documents in Native Format: In Spring v. Board of Trustees of Cape Fear Community College et. al., North Carolina Magistrate Judge James E. Gates, in ruling on several discovery disputes between the parties, granted the plaintiff’s motion to compel in part, ordering the plaintiff to identify documents to be re-produced in native format and for the defendant to re-produce those documents or move for appropriate relief after conferring with plaintiff if it deemed the number of documents identified to be unjustifiably large.

Defendant Sanctioned for Failing to Preserve Text Messages and Failing to Produce Native Format Data: In First Financial Security, Inc. v. Freedom Equity Group, LLC, California Magistrate Judge Howard R. Lloyd issued permissive adverse inference instruction sanctions against the defendant for deleting relevant text messages “with the intent to deprive” the plaintiff of the use of those text messages and for failing to produce native-format data that it was repeatedly ordered to produce.  Judge Lloyd declined to sanction the defendant for spoliation of phone records or employment applications.

PRIVILEGE DISPUTES

As usual, there were cases where there were disputes regarding privilege designations and privilege logs.  Here are three cases:

Plaintiff Granted Documents Withheld Due to Privilege, But Denied Expanded Search of Emails: In Moore v. Lowe’s Home Ctrs., Washington District Judge Robert J. Bryan ruled in favor of the plaintiff that documents and communications dated before the defendant anticipated litigation were not privileged work product and should be produced, but he ruled against the plaintiff in her request have the defendant perform additional searches on email to identify additional relevant documents.

Court Denies Defendant’s Motion for Production of Documents for In Camera Review: In Portland Pipe Line Corp. et. al. v. City of South Portland et. al., Maine Magistrate Judge John H. Rich, III denied the defendants’ motion to compel the production of documents withheld or redacted on claims of attorney-client privilege by the plaintiff, finding that the plaintiffs “undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor” and then undertaking a “painstaking manual review to verify the privileged status of every ESI document marked as privileged”.

Finding Categorical Privilege Log to Be Inadequate, Court Orders Plaintiff to Provide a Metadata Log: In Companion Property and Casualty Insurance Company v. U.S. Bank N.A., South Carolina District Judge J. Michelle Childs determined that the plaintiff’s categorical Privilege Log was inadequate and ordered the plaintiff to provide to the defendant a metadata log for all documents withheld or redacted, affidavit(s) from the person(s) with knowledge regarding the privileged third party and common interest parties and a list of anticipated litigation(s) for the documents withheld on the basis of work product protection.

APPLE V. SAMSUNG

The case that never dies.  Just when Apple finally thought it was going to get a great big check, the Supreme Court told the federal appeals court to try again when determining an award for patent infringement:

Supreme Court Gives Samsung an Early Christmas Present – For Now: As reported by Greg Stohr of Bloomberg Law (Supreme Court Orders New Look at Apple’s Award From Samsung), the Supreme Court, in a unanimous opinion (8-0) told a federal appeals court to take another look at a $399 million award won by Apple from Samsung for copying the design of the iPhone.

Tomorrow, we will cover cases related to social media discovery, technology assisted review and the first part of the cases relating to sanctions and spoliation (yes, there were that many).  Stay tuned!

Want to take a look at cases we covered the previous five years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

2016 eDiscovery Case Law Year in Review, Part 1

It’s that time again!  Time for our annual review of eDiscovery case law!  Once again, we had plenty of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI) and even a few landmark cases regarding technology assisted review.  So, as we have done for the last five years, let’s take a look back at 2016!

Last year, eDiscoveryDaily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  We’ve had over 500 lifetime case law posts, covering over 380 unique cases since our inception back in 2010.  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot).  Perhaps you missed some of these?  Now is your chance to catch up!

ADMISSIBILITY AND PROPORTIONALITY

This year, there were more disputes than ever about data being produced and not being produced and whether the costs to do so are overly burdensome.  Here are sixteen cases related to admissibility of ESI and the proportionality for preserving and producing that ESI:

Motion to Compel Denied for Employees’ Personal Emails, Granted for Third Party Hosted Data: In Matthew Enterprise, Inc. v. Chrysler Group, LLC, California Magistrate Judge Paul S. Grewal denied the defendant’s motion to compel production from personal email accounts of the plaintiff’s employees because the plaintiff did not have legal control of the emails.  However, he granted the defendant’s motion to compel production from the plaintiff’s customer communications database operated by a third party vendor, noting that the plaintiff did have control of that data, having already produced data from this source.

Citing Proportionality Concerns, Court Grants Plaintiff’s Motion for Protective Order: In Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., Indiana Magistrate Judge Debra McVicker Lynch, citing proportionality concerns, granted the plaintiff’s motion for a protective order and ordered that the defendant was prohibited from obtaining the discovery sought by the defendant’s subpoenas from a major shareholder of the plaintiff.

Merely Stating That ESI Request Is Not Relevant Or Proportional Is Not Sufficient, Court Rules: In Digital Ally, Inc. v. Utility Associates, Inc., Kansas Magistrate Judge Gwynne E. Birzer granted the plaintiff’s motion to compel discovery, overruling the defendant’s objections that the request was neither relevant nor proportional to the issues in this case, because the defendant “has not expounded on its objections to relevance or proportionality under Fed. R. Civ. P. 26(b)(1)”.

Plaintiffs Ordered to Produce a Copy of Access Database for Forensic Analysis: In Thorne Research, Inc. et. al. v. Atlantic Pro-Nutrients, Inc., Utah Magistrate Judge Paul M. Warner determined that, because the parties had competing affidavits regarding whether a Microsoft Access database created by the plaintiffs’ co-inventor stores metadata and that metadata (if present) was clearly relevant, the defendant should be allowed the opportunity to conduct a forensic analysis as to whether or not the metadata exists in the native format of the Access database.

Court Limits Scope of Search Terms Requested by Plaintiff: In AVM Technologies, LLC v. Intel Corp., Delaware Magistrate Judge Mary Pat Thynge granted in part the plaintiff’s request for the defendant to perform a database search of four terms and their synonyms, but limited the scope of that search to one specific defendant database, not the variety of sources requested by the plaintiff to be searched.

Defendant Ordered to Issue Litigation Hold, Respond to Discovery Requests: In Bruner v. American Honda Motor Co., Alabama Magistrate Judge Katherine P. Nelson granted the plaintiffs’ motion to compel response to discovery requests for email, to perform additional searches, and to implement a litigation hold on the email accounts for relevant individuals to the case.

Court Orders Non Party to Preserve Some, But Not All, Information Requested by Plaintiff: In Swetlic Chiropractic & Rehabilitation Center, Inc. v. Foot Levelers, Inc., et. al., Ohio Magistrate Judge Elizabeth A. Preston Deavers ruled that the plaintiff had satisfied its burden to demonstrate a real danger that relevant evidence in a non-party’s possession would be destroyed absent a court order and ordered WestFax, the non-party, “to preserve any transmission report or other documents and ESI that identify fax numbers that received Defendants’ advertising faxes.”  However, noting that the requested scope of the preservation order “appears overly broad”, she permitted WestFax to file objections to the Order within 14 days if unable to extrajudicially resolve any such objection with the plaintiff.

Court Determines Granting Defendant’s Motion to Request Overseas Documents is ‘Futile’: In Al-Ameri et. al. v. Johns Hopkins Hospital, Maryland Magistrate Judge Stephanie A. Gallagher denied the defendant’s motion to compel on the basis that compelling the discovery sought would be futile.

Court Settles Dispute Between Parties on Number of Custodians to Search and Produce: In Family Wireless #1, LLC et. al. v. Automotive Technologies, Inc., Connecticut Magistrate Judge Sarah A. L. Merriam partially granted the plaintiff’s motion to compel the defendant to search and produce ESI from additional custodians, finding that “three of the six proposed custodians’ files are likely to include information relevant to this matter, and defendant has not met its burden of showing that inclusion of these three individuals would be unduly burdensome”.

Court Rejects Plaintiff’s Request for Fee Reimbursement in Responding to Motion: In Gade v. State Farm Mutual Automobile Insurance Co., Vermont Chief District Judge Christina Reiss denied the plaintiff’s motion for an order requiring the defendant to pay expenses and fees that she incurred in opposing the defendant’s motion to compel production of an Excel spreadsheet from the plaintiff’s expert.

Court Grants Discovery on Individual Defendants’ Personal Computers and Email: In Sunderland v. Suffolk County et. al., New York Magistrate Judge A. Kathleen Tomlinson, determining that the plaintiff’s request for individual defendants to search for and produce certain documents from their personal computers and email accounts was not “unduly intrusive or burdensome” because the request was limited in time frame and the parties had agreed to search terms, granted the plaintiff’s motion to compel.

Court Rules Government’s Use of Stingray to Locate Suspect Was Unwarranted: In United States v. Lambis, New York District Judge William H. Pauley, III granted the defendant’s motion to suppress evidence obtained by law enforcement agents in connection with a search of his apartment because the apartment was located via the use of a “Stingray” cell-site simulator to identify the location of the defendant’s phone without a warrant.

Court Rejects Discovery for Additional Time Period, But Grants Additional Discovery on Termination Plan: In Blodgett et. al. v. Siemens Industry, Inc., New York Magistrate Judge A. Kathleen Tomlinson denied the plaintiff’s motion to compel the defendant to respond to the first two requests in its third request for production, but granted the motion regarding the plaintiff’s third request for ESI regarding a division-wide reduction-in-force plan.

Defendant Not Required to Produce All Documents Responsive to Search Terms: In Bancpass, Inc. v. Highway Toll Administration, LLC, Texas Magistrate Judge Andrew W. Austin (no relation) denied the plaintiff’s Motion to Enforce Discovery Agreements with regard to the plaintiff’s request for the defendant to produce all non-privileged documents responsive to search terms agreed to over email.

If Plaintiff Wants Discovery on Defendant’s Backup Tapes, Court Rules He Must Pay for Them: In Elkharwily v. Franciscan Health Sys., Washington District Judge Robert J. Bryan, finding that the defendant had met its burden to show that retrieving electronically stored information on backup tapes “would result in an undue burden and cost to Defendant”, that the plaintiff “has not met his burden to show good cause” to overcome the defendant’s undue burden and cost argument, and that “the archived emails are ‘discoverable’ under Fed. R. Civ. P. 26(b)(1)”, ordered the defendant to “facilitate access to the discovery”, but “only at Plaintiff’s expense, payable in advance”.

Court Orders Forensic Examination of Key Custodian Computers: In Davis v. Crescent Electric Company et. al., South Dakota District Judge Lawrence L. Piersol ruled that a non-disclosure agreement would sufficiently protect any and all confidential and/or privileged information of the defendant that may be uncovered during the forensic examination for key custodians and that the information being requested by the plaintiff was relevant and not overly broad.

We’re just getting started!  Tomorrow, we will cover cases related to cooperation, disputes about discovery, eDiscovery cost reimbursement, form of production disputes and the ubiquitous Apple v. Samsung case.  Stay tuned!

Want to take a look at cases we covered the previous five years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Florida Judges Say State Needs More eDiscovery Mediators: eDiscovery Trends

You’d think I lived in Florida as much as we’ve covered it lately, both good and not so good.  This story, for the first state to require technology CLE for attorneys, could be true in many other states as well.

In the Daily Business Review article Judges Zero In on E-Discovery as Promising Niche for Neutrals, written by Samantha Joseph (subscription required, but it’s free), a panel of state judges said there’s a big untapped opportunity for neutrals to specialize in electronic discovery.

Over 3,300 certified circuit court mediators practice in Florida, according to data from the state Supreme Court. But few specialize in eDiscovery, which was the focus of amendments to the Federal Rules of Civil Procedure last year as courts mapped out litigants’ obligations to preserve electronically stored information (ESI).

“This would be a very good area for our mediators to become educated on,” said Palm Beach Circuit Judge Lisa Small.

Small joined Magistrate Judge Sarah Willis and Circuit Judges Meenu Sasser, Daliah Weiss and Jessica Ticktin (all with the 15th Judicial Circuit of Florida) for a panel discussion Friday, moderated by David Steinfeld, Palm Beach Gardens attorney and founder of Everything e-Discovery LLC.

“Every single case is an e-discovery case now,” Sasser said. “That’s how we live our lives. Everyone is communicating through Facebook, emails, texts.”

Sasser, a finalist for a vacancy in the Fourth District Court of Appeal and the first sitting state court judge in Florida to implement a standing order on ESI, created a meet-and-confer obligation among litigants “to discuss in detail” their clients’ computer systems, software and other factors that could impact eDiscovery, delay cases and add thousands to court costs.  Sasser said administrative judges across the state contacted her to discuss the order, with plans to implement similar policies.

The judges on the panel all agreed on the idea of appointing a special magistrate to handle detailed, complex and time-consuming ESI issues, much like at the height of the housing crisis when some magistrates focused solely on foreclosures to help clear crowded dockets.  The judges said skilled neutrals would help them manage uniform calendar work – about 80-90 percent of which include discovery disputes, primarily involving electronic files and would potentially save litigants in complex litigation thousands of dollars.

So, if you’re a certified court mediator in Florida looking for an opportunity for more work, eDiscovery education could be the ticket.  Now you know on what you can spend (at least) those three required hours of technology CLE!

So, what do you think?  Does your state need more experienced eDiscovery mediators?  Maybe you could change your history!  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

Plaintiff Must Cooperate on Search Terms, Says Court: eDiscovery Case Law

In Pyle v. Selective Insurance Company of America, No. 2:16-cv-335 (W.D. Pa. Sept. 30, 2016), Pennsylvania Senior District Judge Terrence F. McVerry granted the defendant’s Motion to Compel Plaintiff to Provide ESI Search Terms “insofar as it seeks to compel Plaintiff to confer and come to an agreement on the search terms Defendant will use to cull through the additional email archives that Defendant has identified as having been retrieved.”

Case Background

In this case, plaintiff’s counsel served the defendant with a Request for Production of Documents in July 2016, which sought “all emails, correspondence, memorandum, and/or other documents” from various defendant employees relating to the plaintiff’s employment, particularly her receipt of disability benefits and the termination of her employment. The defendant responded by providing some relevant documents and also advised Plaintiff that “[i]n addition to the documents produced, additional email archives for various Selective employees have been retrieved”,  requesting that “Plaintiff agree with Defendant on appropriate electronic search terms to be used to located [sic] any relevant documents therein.”  After plaintiff’s counsel refused, defendant’s counsel e-mailed plaintiff’s counsel again in early September asking for a “suggested list of search terms . . . so that we can agree on a common set of terms so that the electronic records [Selective] has gathered can be searched for relevance.”  Plaintiff’s counsel responded by saying that the requests “are not requests for access to the email accounts of the individuals referenced in these requests that would necessitate our providing search terms and/or a protocol for the review of these accounts.”

Not satisfied with that response, the defendant filed a motion seeking an order compelling the plaintiff to provide ESI search terms or else relieving Defendant of the obligation to produce any ESI.  The plaintiff objected, arguing that the defendant cited no authority to support its request, nor identified any burden that it faces in locating and producing the requested emails.

Judge’s Ruling

In response to the plaintiff’s argument, Judge McVerry’s stated:

“Plaintiff’s argument totally misses the mark; in fact, it borders on being incomprehensible. Far from being baseless, Defendant’s request is entirely consistent with both the letter and spirit of the Federal Rules of Civil Procedure regarding the discovery of electronically stored information and this Court’s Local Rules. It is well settled by now that ‘electronic discovery should be a party-driven process.’…The Federal Rules expressly require counsel to meet and confer on ‘any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced[.]’ Fed. R. Civ. P. 26(f)(3)(C). ‘Among the items about which the court expects counsel to `reach practical agreement’ without the court having to micro-manage e-discovery are `search terms, date ranges, key players and the like.’’…Indeed, this principle is incorporated into this Court’s Local Rules, which direct counsel to ‘meet and confer, and attempt to agree, on the discovery of ESI, including . . . an ESI search protocol, including methods to filter data, such as application of search terms or date ranges.’”

As a result, Judge McVerry granted the defendant’s motion “insofar as it seeks to compel Plaintiff to confer and come to an agreement on the search terms Defendant will use to cull through the additional email archives that Defendant has identified as having been retrieved.”  Judge McVerry denied the defendant’s Motion to Compel Production of Medical Records and Executed HIPAA Authorizations as “premature” since the 30 day time period for the plaintiff to respond had not yet elapsed.

So, what do you think?  Should receiving parties be required to negotiate search terms with producing parties?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

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

In Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB (W.D. Wash. July 29, 2016), Washington District Judge Robert J. Bryan, finding that the defendant had met its burden to show that retrieving electronically stored information on backup tapes “would result in an undue burden and cost to Defendant”, that the plaintiff “has not met his burden to show good cause” to overcome the defendant’s undue burden and cost argument, and that “the archived emails are ‘discoverable’ under Fed. R. Civ. P. 26(b)(1)”, ordered the defendant to “facilitate access to the discovery”, but “only at Plaintiff’s expense, payable in advance”.

Case Background

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

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

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

Judge’s Ruling

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

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

So, what do you think?  Should the defendant have been required to bear the cost of restoring the backup tapes for discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Appeals Court Upholds Defendant’s Request for eDiscovery Cost Reimbursement: eDiscovery Case Law

In Deere & Co. v. Duroc, LLC et. al., No. 2014-1697 (Fed. Cir., May 26, 2016), after the defendants conceded much of the storage and hosting costs they had claimed, the Federal Circuit Court of Appeals affirmed the district court ruling to uphold cost taxation requested by the defendants, including eDiscovery costs.

Case Background

In this case where the plaintiff sued the defendants for patent infringement, the court granted summary judgment in favor of the defendants and ordered the Clerk of Court to enter judgment for both Defendants, with costs to be assessed against the plaintiff.  The defendants submitted their bills of costs, and the Clerk’s assessment was reviewed and affirmed by the district court, which stated that it had “carefully studied the parties’ submissions and held a telephonic hearing solely to address these costs issues”.

The plaintiff appealed the summary judgment of non-infringement, which was vacated on appeal and remanded for trial.  After trial, the jury found that the plaintiff’s patent was not infringed, and the district court entered judgment in favor of the defendants, who again submitted their bills of taxable costs.  The plaintiff objected to various requested costs as excessive, beyond the authority of the district court to tax, or lacking the required documentation.  The district court reviewed the assessments and upheld most of the costs, approving the taxation as “supported by 28 U.S.C. § 1920, legal authorities cited in the Defendants’ briefs, and in view of the length and complexity of the fourteen-day long patent trial.”

The plaintiff appealed, challenging the assessment of costs in three areas: (1) costs related to document copying, (2) costs related to eDiscovery, and (3) costs related to trial exemplifications.  With regard to eDiscovery, various aspects of the eDiscovery process were governed by a negotiated ESI Agreement that required various eDiscovery actions to be undertaken. The ESI Agreement required that all documents be produced electronically in a database format, product numbered, searchable, with OCR and metadata extracted and identified, and produced on suitable storage media.

Appellate Court’s Ruling

With regard to the eDiscovery costs, the defendants conceded much of the storage and hosting costs they had claimed on appeal, leaving the appellate court to address only the issue of whether e-discovery costs are taxable as a matter of law.  The appeals court noted that “The district court held that when the costs of complying with the agreement are within the obligations of the Agreement and reasonably incurred in complying with the Agreement, they are recoverable” and those costs “are within the scope of § 1920”.  As a result, the appeals court concluded that the district court acted within its discretion and upheld the remaining eDiscovery costs claimed, as well as the other costs related to document copying and trial exemplifications.

So, what do you think?  Will ESI agreements make it easier to recover eDiscovery 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.

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

In Sunderland v. Suffolk County et. al., No. 13-4838 (E.D.N.Y., June 14, 2016), New York Magistrate Judge A. Kathleen Tomlinson, determining that the plaintiff’s request for individual defendants to search for and produce certain documents from their personal computers and email accounts was not “unduly intrusive or burdensome” because the request was limited in time frame and the parties had agreed to search terms, granted the plaintiff’s motion to compel.

Case Background

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

Judge’s Ruling

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

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

So, what do you think?  Was the plaintiff entitled to discovery from the individuals’ computers and email accounts?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Rejects Plaintiff’s Request for Fee Reimbursement in Responding to Motion: eDiscovery Case Law

In Gade v. State Farm Mutual Automobile Insurance Co., No. 14-00048 (D. Vermont, June 6, 2016), Vermont Chief District Judge Christina Reiss denied the plaintiff’s motion for an order requiring the defendant to pay expenses and fees that she incurred in opposing the defendant’s motion to compel production of an Excel spreadsheet from the plaintiff’s expert.

Case Background

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

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

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

Judge’s Ruling

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

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

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

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

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

Court Limits Scope of Search Terms Requested by Plaintiff: eDiscovery Case Law

In AVM Technologies, LLC v. Intel Corp., No. 15-00033 (D. Delaware, May 3, 2016), Delaware Magistrate Judge Mary Pat Thynge granted in part the plaintiff’s request for the defendant to perform a database search of four terms and their synonyms, but limited the scope of that search to one specific defendant database, not the variety of sources requested by the plaintiff to be searched.

Case Background

In this patent infringement case where the plaintiff sued the defendant in connection with four of the defendant’s processors that the plaintiff alleged infringed upon its patent, a telephonic hearing was held in January 2016 to address a number of discovery issues.  One issue that they could not resolve was the plaintiff’s request for a database search by the defendant of the following terms: charge sharing, power race, contention and short circuits and their synonyms, which was opposed by the defendant.

Because the defendant indicated that circuits in its earlier products are the same as the circuits accused, the plaintiff argued it should not be limited to documents on which the defendant intended to rely, even though the plaintiff admitted its request would require a search from 1995 to the present and would include products that predate the patent-in-suit and are not accused of infringement.  The defendant indicated that it would take a “massive effort” required to complete the plaintiff’s requested search, indicating that it does not maintain a single or central document repository or index of its many different document repositories, does not have a single “standard” set of processor design documents nor a comprehensive text-searchable database for prior products.  However, the defendant did offer to search one database that “contains only the highest level documents relevant to a product”, indicating that it was transferring potentially searchable contents of this database to a search capable platform to perform the keyword searches requested and was working to complete this process shortly.

Judge’s Ruling

Judge Thynge stated that “Nothing in AVM’s arguments suggest why the production by Intel to date is inadequate, such as how or what in that production indicates that Intel has culled or selected documents that only or primarily support its position on liability.  AVM’s contention that it is only requesting that Intel conduct a text search of the locations most likely to have relevant information is unpersuasive and does not address the significant concerns identified by Intel”, indicating that the plaintiff’s request “ignores the required balancing considerations under proportionality for discovery”.  Judge Thynge also indicated that she did not “find the four identified terms narrow as suggested by AVM and likely will result in numerous irrelevant documents.”

As a result, because the defendant offered to search one database for the four terms and synonyms, Judge Thynge ordered the defendant to “perform what is reasonably necessary to enable keyword searches” of that database for the four terms “and additional, limited synonyms for these terms of up to 12 total, as agreed to by the parties. If the parties cannot agree on the synonyms, they are to advise the court.”

So, what do you think?  Was the court correct to limit the scope of the plaintiff’s searches?  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.

The Number of Files in Each Gigabyte Can Vary Widely: eDiscovery Best Practices

Now and then, I am asked by clients how many documents (files) are typically contained in one gigabyte (GB) of data.  When trying to estimate the costs for review, having a good estimate of the number of files is important to provide a good estimate for review costs.  However, because the number of files per GB can vary widely, estimating review costs accurately can be a challenge.

About four years ago, I conducted a little (unscientific) experiment to show how the number of pages in each GB can vary widely, depending on the file formats that comprise that GB.  Since we now tend to think more about files per GB than pages, I have taken a fresh look using the updated estimate below.

Each GB of data is rarely just one type of file.  Many emails include attachments, which can be in any of a number of different file formats.  Collections of files from hard drives may include Word, Excel, PowerPoint, Adobe PDF and other file formats.  Even files within the same application can vary, depending on the version in which they are stored.  For example, newer versions of Office files (e.g., .docx, .xlsx) incorporate zip compression of the text, so the data sizes tend to be smaller than their older counterparts.  So, estimating file counts with any degree of precision can be somewhat difficult.

To illustrate this, I decided to put the content from yesterday’s case law blog post into several different file formats to illustrate how much the size can vary, even when the content is essentially the same.  Here are the results – rounded to the nearest kilobyte (KB):

  • Text File Format (TXT): Created by performing a “Save As” on the web page for the blog post to text – 4 KB, it would take 262,144 text files at 4 KB each to equal 1 GB;
  • HyperText Markup Language (HTML): Created by performing a “Save As” on the web page for the blog post to HTML – 57 KB, it would take 18,396 HTML files at 57 KB each to equal 1 GB;
  • Microsoft Excel 97-2003 Format (XLS): Created by copying the contents of the blog post and pasting it into a blank Excel XLS workbook – 325 KB, it would take 3,226 XLS files at 325 KB each to equal 1 GB;
  • Microsoft Excel 2010 Format (XLSX): Created by copying the contents of the blog post and pasting it into a blank Excel XLSX workbook – 296 KB, it would take 3,542 XLSX files at 296 KB each to equal 1 GB;
  • Microsoft Word 97-2003 Format (DOC): Created by copying the contents of the blog post and pasting it into a blank Word DOC document – 312 KB, it would take 3,361 DOC files at 312 KB each to equal 1 GB;
  • Microsoft Word 2010 Format (DOCX): Created by copying the contents of the blog post and pasting it into a blank Word DOCX document – 299 KB, it would take 3,507 DOCX files at 299 KB each to equal 1 GB;
  • Microsoft Outlook 2010 Message Format (MSG): Created by copying the contents of the blog post and pasting it into a blank Outlook message, then sending that message to myself, then saving the message out to my hard drive – 328 KB, it would take 3,197 MSG files at 328 KB each to equal 1
  • Adobe PDF Format (PDF): Created by printing the blog post to PDF file using the CutePDF printer driver – 1,550 KB, it would take 677 PDF files at 1,550 KB each to equal 1

The HTML and PDF examples weren’t exactly an “apples to apples” comparison to the other formats – they included other content from the web page as well.  Nonetheless, the examples above hopefully illustrate that, to estimate the number of files in a collection with any degree of accuracy, it’s not only important to understand the size of the data collection, but also the makeup of the collection as well.  Performing an Early Data Assessment on your data beforehand can provide those file counts you need to more accurately estimate your review costs.

So, what do you think?  Was the 2016 example useful, highly flawed or both?  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.