Electronic Discovery Law

Legal issues, news and best practices relating to the discovery of electronically stored information.

 

1
Use of Predictive Coding was “Reasonable Inquiry,” Motion to Compel Additional Discovery Denied
2
A Responding Party Cannot be Forced to Use Technology Assisted Review (Predictive Coding)
3
Reliance on Caselaw Analyzing Prior Version of Rule 26 “Inexplicable” and “Inexcusable,” Sanctions Imposed
4
Second Circuit: Warrant may not Compel Production of Emails from Ireland
5
“A litigant cannot keep its own system secret and then refuse to gather the information itself.”
6
Contents of Personal Computers and Email Accounts Within Scope of Discovery, Search Ordered by Court
7
Court Orders Native Production Absent Explanation of Allegedly Burdensome Cost and Upon Showing of Good Cause
8
“Just as a plaintiff may not take discovery regarding unpled claims, so a defendant is precluded from seeking discovery concerning unpled defenses.”
9
Plaintiff’s “Lackadaisical attitude towards document preservation” Results in Prejudice to Defendant, Sanctions
10
Once Again, UK Court Approves Use of Predictive Coding

Use of Predictive Coding was “Reasonable Inquiry,” Motion to Compel Additional Discovery Denied

Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, No. 2685-11, 8393-12, 2016 WL 4204067 (T.C. July 13, 2016)

In September 2014, the court approved Petitioners’ use of predictive coding to identify potentially responsive and privileged data contained on two backup tapes, despite Respondent’s objection that the technology was “unproven.” (Read a summary of that opinion here.)  At that time, the court indicated that Respondent could move to compel additional discovery in the event he believed that Petitioners’ response was insufficient.   Accordingly, after Petitioners denied Respondent’s request for production of additional documents containing certain specified search hits, Respondent moved to compel.  Concluding that Petitioners’ reliance on predictive coding satisfied the requirement for a “reasonable inquiry,” the court denied the motion.

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A Responding Party Cannot be Forced to Use Technology Assisted Review (Predictive Coding)

Hyles v. New York City, 10 Civ. 3119 (AT)(AJP) (S.D.N.Y. Aug. 1, 2016)

In this case, the court addressed the question of whether the City could be “forced” to use technology assisted review (predictive coding) to identify discoverable information when the City itself preferred to use keyword searching. “The short answer [was] a decisive ‘NO.’”

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Reliance on Caselaw Analyzing Prior Version of Rule 26 “Inexplicable” and “Inexcusable,” Sanctions Imposed

Fulton v. Livingston Fin., LLC, No. C15-0574JLR, 2016 WL 3976558 (W.D. Wash. July 25, 2016)

In this opinion, the court imposed sanctions for counsel’s misrepresentations of law and fact, including his citation to caselaw analyzing outdated standards under Fed. R. Civ. P. 26(b)(1), which was substantially affected by the December 2015 amendments. Calling counsel’s reliance on caselaw applying outdated standards “inexplicable” and “inexcusable” where the “December 1, 2015 amendments to Federal Rule of Civil Procedure 26(b)(1) ‘dramatically changed’ what information is discoverable,” the court ultimately imposed monetary sanctions (payment of Plaintiff’s fees and costs for defending the at-issue motion) and ordered counsel to supply “senior members” of his firm with the “offending brief” with the explanation that “the court is entering sanctions . . . for quoting provisions of the civil rules that are badly out of date, and also making direct misrepresentations to the court.”  Declining to also require the attorney to report the sanction on future pro hac vice applications, the court did order that if a federal court threatened or imposed sanctions on the attorney at any time in the next five years, the attorney must “immediately disclose to that court the sanctions imposed by this court by providing that court with a copy of this order and the offending briefing.”

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Second Circuit: Warrant may not Compel Production of Emails from Ireland

In re a Warrant to Search a Certain E-mail Account Controlled & Maintained by Microsoft Corp., No. 14-2985 (2d Cir. July 14, 2016)

In this case, Microsoft Corporation appealed orders from the United States District Court for the Southern District of New York denying its motion to quash a warrant issued under § 2703 of the Stored Communications Act and holding Microsoft in contempt for “refusing to execute the Warrant on the government’s behalf.”  The warrant directed Microsoft to “seize and produce the contents of an e-mail account that it maintains for a customer who uses the company’s electronic communications services.” Although Microsoft produced the relevant customer’s non-content information which was stored in the United States, it refused to access and import data that was stored and maintained in Ireland.

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“A litigant cannot keep its own system secret and then refuse to gather the information itself.”

Labrier v. State Farm Fire & Cas. Co., No. 2:15-cv-04093-NKL, 2016 WL 2689513 (W.D. Mo. May 9, 2016)

Upon Defendant’s refusal to provide Plaintiff with a list of data fields from two proprietary databases or to allow remote access, the Special Master ordered Defendant to respond to written interrogatories meant to provide the information sought by Plaintiff regarding putative class members and damages.  Addressing Defendant’s objection that the discovery (i.e., responding to written interrogatories) was not proportional to the case, the District Court determined that the Special Master had not abused his discretion, reasoning in part that “[a] litigant cannot keep its own system secret and then refuse to gather the information itself.”

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Contents of Personal Computers and Email Accounts Within Scope of Discovery, Search Ordered by Court

Sunderland v. Suffolk Cty., No. CV 13-4838 (JFB)(AKT), 2016 WL 3264169 (E.D.N.Y. June 14, 2016)

In this civil rights action, the parties agreed upon search terms to identify responsive material but did not agree regarding the propriety of searching the Individual Defendants’ personal computers and email accounts. Concluding that responsive information located in the Individual Defendants’ personal repositories was within the scope of discovery, the court granted Plaintiff’s motion to compel the requested searches.

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Court Orders Native Production Absent Explanation of Allegedly Burdensome Cost and Upon Showing of Good Cause

Mitchell v. Reliable Sec., LLC, No. 1:15-cv-03814-AJB, 2016 WL 3093040 (N.D. Ga. May 23, 2016)

Addressing the parties’ dispute over the proper format of production—specifically, whether ESI should be produced in native format or PDF—the Court found Defendant failed to make an adequate showing that production of native files was cost prohibitive and that, in any event, Plaintiff had shown good cause, and ordered production of ESI in native format.

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“Just as a plaintiff may not take discovery regarding unpled claims, so a defendant is precluded from seeking discovery concerning unpled defenses.”

Lifeguard Licensing Corp. v. Kozak, No. 15 Civ. 8459 (LGS)(JCF), 2016 WL 3144049 (S.D.N.Y. May 23, 2016)

In this intellectual property dispute, the court denied Defendants’ motion to compel Plaintiffs’ production of “discoverable information relevant to the defendants’ likely defenses and counterclaims” citing Defendants’ decision to move for dismissal without filing an answer to the Complaint and reasoning, among other things, that the “plain language” of Fed. R. Civ. P. 26(b)(1)—recently amended “so that discovery now extends only as far as information relevant to claims or defenses”—“does not provide for discovery of ‘likely,’ ‘anticipated,’ or ‘potential’ claims or defenses.”

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Plaintiff’s “Lackadaisical attitude towards document preservation” Results in Prejudice to Defendant, Sanctions

Mathew Enter., Inc. v. Chrysler Grp. LLC, No. 13-cv-04236-BLF, 2016 WL 2957133 (N.D. Cal. May 23, 2016)

The rules governing parties’ duties to preserve data do not demand perfection. Only when a party should have preserved electronically stored information “in the anticipation or conduct of litigation” and when that party “failed to take reasonable steps to preserve it” may a court order corrective measures. The standard is an attainable one.

Applying newly-amended Rule 37(e) (which “now provides a genuine safe harbor for those parties that take ‘reasonable steps’ to preserve their [ESI]”) the court concluded that Defendant was prejudiced by Plaintiff’s failure to preserve customer communications and imposed curative measures.

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Once Again, UK Court Approves Use of Predictive Coding

It seems that predictive coding may be catching on in the UK. Not long ago, the English High Court approved the use of predictive coding for the first time in Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (Ch). In that case, the parties agreed to the use of predictive coding software and merely sought approval from the court.  Now, The Lawyer (registration required) reports that the High Court has once again weighed in on the issue, this time to approve the use of predictive coding despite the apparent objection of at least one party. This is the first time such an order has been granted.  While the details of the order and underlying disagreement have yet to be revealed, the result bodes well for parties seeking to rely on such technology in future.

Stay tuned to this space for more information as it becomes available.

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