Electronic Discovery Law

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

 

1
Court Finds Foreign Discovery “Marginally Relevant” and “Not Proportional,” Declines to Compel Search
2
Despite Intentional Spoliation, $25 Million Verdict Stands
3
Court Orders Two Permissive Adverse Inferences at Trial
4
Court Compels Cooperation Regarding Search Terms
5
Court Finds “Rather Broad” Request to be Proportional Upon Factor-by-Factor Analysis
6
No Sanctions for Deletion where Files were Recoverable or Duplicated Elsewhere
7
Court Shifts Costs to Discover Emails from Backup Tapes
8
Statements of Information Withheld Comply with Amended Rule 34, Motion to Compel Denied
9
Use of Predictive Coding was “Reasonable Inquiry,” Motion to Compel Additional Discovery Denied
10
A Responding Party Cannot be Forced to Use Technology Assisted Review (Predictive Coding)

Court Finds Foreign Discovery “Marginally Relevant” and “Not Proportional,” Declines to Compel Search

In re Bard IVC Filters Prod. Liab. Litig., —F.R.D.—, 2016 WL 4943393 (D. Ariz. Sept. 16, 2016)

In this case, the parties disagreed on the discoverability of communications between Defendants’ foreign subsidiaries and divisions and foreign regulators regarding the filters at issue in the case.  Following analysis of the effects of the December 1, 2015 amendments on Fed. R. Civ. P. 26(b)(1) and of the specific facts of the case, US District Court Judge David Campbell—Chair of the Committee on Rules of Practice and Procedure—determined that the at-issue communications were “only marginally relevant” and was persuaded that “the burden of [the] foreign discovery would be substantial.”  Thus, the court concluded that Defendants were not required to search their foreign entities for communications with foreign regulators.

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Despite Intentional Spoliation, $25 Million Verdict Stands

BMG Rights Mgmt. LLC v. Cox Commc’ns, Inc., —F. Supp. 3d—, 2016 WL 4224964 (E.D. Va. Aug. 8, 2016)

In this copyright infringement case, Plaintiff was found to have intentionally spoliated material evidence, resulting in sanctions. Specifically, Defendant was allowed to address the issue of spoliation in its opening statement and the jury was instructed that it may, but was not required to, consider “the absence” of earlier versions of source code relied upon by Plaintiff’s agent to identify and provide notice of infringement by Defendant’s customers.  Despite the sanctions, Plaintiff was awarded $25 million upon the jury’s determination that Defendant—a conduit internet service provider—was liable for willful contributory infringement of Plaintiff’s copyrighted musical works.  In a motion for a new trial, Defendant argued, among other things, that the sanctions were insufficient.  The district judge rejected that argument (and others), denied the motion, and entered final judgement in accordance with the verdict.

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Court Orders Two Permissive Adverse Inferences at Trial

First Fin. Sec., Inc. v. Freedom Equity Grp., LLC, No. 15-cv-1893-HRL, 2016 WL 5870218 (N.D. Cal. Oct. 7, 2016)

In this case, the court imposed two permissive adverse inference instructions against Defendant at trial.  The first adverse inference was ordered pursuant to FRCP 37(e)(2) for Defendant’s failure to preserve text messages.  The second was imposed pursuant to FRCP 37(b)(2) (authorizing the court to “remedy the violation of a discovery order with a ‘just’ sanction”), upon the court’s conclusion that Defendant’s failure to produce certain native-format data, despite being repeatedly ordered to do so, resulted in substantial prejudice to the Plaintiff.  In so concluding, the court rejected the argument that it was required to find bad faith, reasoning instead that it could impose such a sanction upon a determination of gross negligence.

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Court Compels Cooperation Regarding Search Terms

Pyle v. Selective Ins. Co. of Am., No. 2:16-cv-335, 2016 WL 5661749 (W.D. Pa. Sept. 30, 2016)

In this case, the court granted Defendant’s motion to compel Plaintiff’s cooperation regarding search terms intended to identify responsive emails requested by the plaintiff.  Notably, in response to Defendant’s motion, Plaintiff’s counsel argued that Defendant had “cited no authority to support its request, nor identified any burden that it face[d] in locating and producing the requested emails.”  Reasoning that Plaintiff’s argument “totally misses the mark” the court concluded that the parties must confer:

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Court Finds “Rather Broad” Request to be Proportional Upon Factor-by-Factor Analysis

First Niagara Risk Mgmt., Inc. v. Folino, —F.R.D.—, 2016 WL 4247654 (E.D. Pa. Aug. 11, 2016)

In this case, the court addressed the parties’ disagreement regarding a proper scope of discovery and Plaintiff’s related motion to compel the search of Defendant’s electronic devices, to be conducted by an independent e-Discovery vendor utilizing search terms proposed by the plaintiff.  Upon finding the requested information relevant and following consideration of each of the proportionality factors identified in recently amended Rule 26(b)(1), the court granted Plaintiff’s motion to compel.

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No Sanctions for Deletion where Files were Recoverable or Duplicated Elsewhere

Erhart v. Bofl Holding, Inc., No. 15-cv-02287-BAS(NLS), 2016 WL 5110453 (S.D. Cal. Sept. 21, 2016)

In this case, the court declined to impose spoliation sanctions for Plaintiff’s deletion of ESI from numerous electronic devices where the majority of the information at issue could be recovered or was duplicated in another location (including the defendant’s systems) and thus was not “destroyed,” and where the prejudice resulting from the few files that could not be recovered was minimal.

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Court Shifts Costs to Discover Emails from Backup Tapes

Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB, 2016 WL 4061575 (W.D. Wash. July 29, 2016)

In this case, Defendant successfully established that retrieving archived emails from disaster recovery backup tapes “would result in an undue burden and cost” pursuant to Fed. R. Civ. P. 26(b)(2)(B).  Although Plaintiff was unable to establish good cause to compel production, the court indicated that the archived emails were nonetheless “‘discoverable’ under Fed. R. Civ. P. 26(b)(1)” and ordered that “upon a request by Plaintiff, Defendant should facilitate access to the discovery” but that Plaintiff would bear the expense, payable in advance.

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Statements of Information Withheld Comply with Amended Rule 34, Motion to Compel Denied

Rowan v. Sunflower Elec. Power Corp., No. 15-cv-9227-JWL-TJJ, 2016 WL 3743102 (D. Kan. July 13, 2016)

In this case, the court addressed, among other things, the sufficiency of Defendant’s objections to Plaintiff’s Requests for Production and in particular its compliance with the new requirements of amended Fed. R. Civ. P. 34, effective as of December 1, 2015. Upon review of the objections and Defendant’s statements of information withheld (as expressed by Defendant’s identification of its search parameters), the court concluded that Defendant’s responses were sufficient and counseled Plaintiff to make additional inquiries in future discovery to the extent he desired additional information.

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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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