Electronic Discovery Law

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

 

1
Deflategate Reinflated: Second Circuit Reinstates Brady Suspension for Participating in Deflation Scheme and Obstructing Investigation
2
Finding Application of Recently-Amended Rule 37(e) “Neither Unjust Nor Impractical,” Court Imposes Adverse Inference
3
Update: CAT3 Dismissed, Along with Motion for Sanctions
4
UPCOMING EVENT: RULES AMENDMENTS ROADSHOW
5
Relevance “Not Good Enough” Says Court Granting Motion for Protective Order
6
No Sanctions for Failure to Halt Automatic Deletion of Text Messages
7
Court Conducts Separate Analyses for Loss of Tangible Things and ESI, Declines to Impose Sanctions
8
Court Approves Proposal to Redact or Withhold Irrelevant Information from Responsive Documents and Document Families
9
For the First Time, English Court Approves Use of Predictive Coding
10
Court Declines to Compel Production of All Documents Identified by Agreed-Upon Search Terms

Deflategate Reinflated: Second Circuit Reinstates Brady Suspension for Participating in Deflation Scheme and Obstructing Investigation

Nat’l Football League Mgmt. Council v. Nat’l Football League Players Assoc., — F.3d —, 2016 WL 1619883 (2d Cir. Apr. 25, 2016)

On April 25, 2016, the Second Circuit reinstated (reinflated?) the four-game suspension previously imposed upon New England Patriots quarterback, Tom Brady, for his participation in what has come to be known as “Deflategate,” including the destruction of his cellular phone and its contents.

Background

On January 18, 2015, it was discovered that the footballs used by the New England Patriots in the AFC Championship Game against the Indianapolis Colts were underinflated, i.e., “inflated below the allowed minimum pressure of 12.5 pounds per square inch.” The initial investigation into the incident conducted by Theodore V. Wells, Jr., Esq.—an attorney retained by the NFL—concluded it was “more probable than not” that Brady was “at least generally aware” of the scheme to deflate footballs and indicated that “the investigation had been impaired” by Brady’s refusal to produce requested information, including text messages and emails.  This “awareness and knowledge of the scheme” and Brady’s “failure to cooperate” were cited by the NFL Executive Vice President in his letter notifying Brady of the suspension.  Brady, through the National Football League Players Association (“the Players Association”), appealed.

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Finding Application of Recently-Amended Rule 37(e) “Neither Unjust Nor Impractical,” Court Imposes Adverse Inference

Brown Jordan Int’l, Inc. v. Carmicle, Nos. 0:14-CV-60629, 0:14-CV-61415, 2016 WL 815827 (S.D. Fla. Mar. 2, 2016)

In this case, the court heard argument regarding Defendant’s alleged spoliation in October, 2015—before amendments to the Rules of Civil Procedure went into effect—and deferred ruling on the motion until the end of trial.  The amendments became effective “shortly after trial concluded.”  Upon determining that “applying the new version of Rule 37(e) would be neither unjust nor impractical,” the court found that Defendant failed to take reasonable steps to preserve the information at-issue, despite a duty to do so; that the lost information could not be restored or replaced through additional discovery; and that Defendant acted with the intent to deprive Plaintiffs of the information’s use in the litigation.  Accordingly, the court presumed that the lost information was unfavorable to the defendant.  The court also noted that the sanction would be appropriate under prior standards, specifically pursuant to the court’s inherent authority to sanction a party’s bad faith litigation conduct.

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Update: CAT3 Dismissed, Along with Motion for Sanctions

CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (S.D.N.Y. Apr. 4, 2016)

On April 4, the parties in this case stipulated to dismissal, with prejudice, of all remaining claims in the case and Defendants have withdrawn their motion for sanctions and acknowledged that, in light of “various evidence” provided by Plaintiffs, “neither Plaintiffs nor any of their owners or agents engaged in any discovery misconduct or wrongdoing . . . .”

A copy of the Joint Stipulation is available here.

Click here to read the original case summary addressing the application of recently-amended Fed. R. Civ. P. 37(e).

UPCOMING EVENT: RULES AMENDMENTS ROADSHOW

Hello “Proportionality,” Goodbye “Reasonably Calculated”: Reinventing Case Management and Discovery Under the 2015 Civil Rules Amendments

Presented by: the ABA Section of Litigation & Duke Law

Join us in Seattle on April 29, 2016

The most significant changes to discovery and case management practices in more than a decade, the 2015 Amendments to Federal Rules of Civil Procedure 16, 26, 34 and 37, took effect on December 1, 2015. The American Bar Association Section of Litigation and the Duke Law Center for Judicial Studies are jointly presenting this unprecedented, 18-city series of dialogues, led by national thought leaders and including local judges, magistrates, and top practitioners in each city. The goal: to further the understanding of the case-management techniques that will help courts and litigants realize the Amendments’ full potential to make discovery more targeted, less expensive, and more effective in achieving justice.

Based on local requests, this popular program has been expanded from the original 13-city tour to 18. Each three-hour program features leaders from the Rules amendment process, who walk the audience through the Amendments and their implications for civil litigation. Spirited panel discussions among local District Court Judges, Magistrate Judges, and leading litigators then explore the Amendments’ practical discovery implications and best practices for case management under the amended Rules. Each program’s attendees discuss application of the new rules to a variety of hypothetical cases and leave with a toolbox of techniques for putting the Amendments into practice.

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Relevance “Not Good Enough” Says Court Granting Motion for Protective Order

Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., No. 1:14-cv-01734-WTL-DML, 2016 WL 1162553 (S.D. Ind. Mar. 24, 2016)

In this case, the court granted Plaintiff’s motion for a protective order and ordered that Defendant was prohibited from obtaining the discovery sought from Plaintiff’s shareholder by the at-issue subpoenas. In reaching its conclusion, the court undertook analysis of recently-amended Fed. R. Civ. P. 26(b)(1), highlighting the principle of proportionality, and ultimately concluded that Defendant’s subpoenas constituted “discovery run amok” and “fail[ed] the proportionality test under Rule 26(b).”

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No Sanctions for Failure to Halt Automatic Deletion of Text Messages

Living Color Enters., Inc. v. New Era Aquaculture, Ltd., No. 14-cv-62216-MARRA/MATHEWMAN, 2016 WL 1105297 (S.D. Fla. Mar. 22, 2016)

In this case, text messages were deleted when Defendant failed to turn off the automatic delete function on his cellular phone. Because “the great majority” of the messages were produced from another source—and thus not lost—however, and where the court determined there was no prejudice or evidence of Defendant’s “intent to deprive” or bad faith, Plaintiff’s Motion for Sanctions was denied.

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Court Conducts Separate Analyses for Loss of Tangible Things and ESI, Declines to Impose Sanctions

Best Payphones, Inc. v. City of New York, Nos. 1-CV-3924 (JG) (VMS), 1-CV-8506 (JG) (VMS), 3-CV-0192 (JG) (VMS); 2016 WL 792396 (E.D.N.Y. Feb. 26, 2016)

In this case, the court addressed Defendants’ motion for sanctions for Plaintiff’s failure to preserve hard copy documents and electronically stored information and therefore conducted simultaneous but separate analyses of the alleged spoliation under the common law (tangible items/hard copy) and recently-amended Fed. R. Civ. P. 37(e) (ESI). Ultimately, the court determined that Plaintiff was negligent in its failure to preserve relevant information but that the lack of prejudice precluded imposition of the serious sanctions requested.  Instead, Plaintiff was ordered to pay Defendants’ attorneys’ fees and costs related to the motion.

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Court Approves Proposal to Redact or Withhold Irrelevant Information from Responsive Documents and Document Families

In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016)

In this opinion, the District Court considered Defendants’ proposal to redact or withhold certain irrelevant information from responsive documents and document families. In approving the proposal, the court cited Chief Justice John Roberts’ recent comments that recently amended Federal Rule of Civil Procedure 26 “crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” Reasoning that such comments “highlight” that “a party is not entitled to receive every piece of relevant information,” the court concluded that “it [was] only logical” that “a party is similarly not entitled to received every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld.”

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For the First Time, English Court Approves Use of Predictive Coding

Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (Ch)

On February 2, 2016 an English court approved the use of predictive coding for the first time. Thereafter, it issued an opinion explaining the reasons for approval, relying in part upon the well-known Da Silva Moore case, which was the first to approve the use of predictive coding in American litigation.

Following extensive discussion of the issue, including acknowledging the parties’ agreement to utilize predictive coding in this case, the court laid out the factors it considered in favor of approving the use of predictive coding, noting “there were no factors of any weight pointing in the opposite direction”:

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Court Declines to Compel Production of All Documents Identified by Agreed-Upon Search Terms

Gardner v. Continental Cas. Co., 3:13 CV 1918 (JBA), 2016 WL 155002 (D. Conn. Jan. 1, 2016)

Plaintiffs sought to compel production of all 38,000 documents hit by agreed-upon search terms.  Following review for relevance and privilege, Defendant produced only 2,214 pages “of which 274 pages consisted of copies of the complaints, with exhibits, filed in this lawsuit.” The court declined to compel the production of all search hits, but acknowledged concerns regarding Defendant’s production based on documents produced by a third party.  Accordingly, the court ordered the parties to confer regarding variations of “sampling and iterative refinement” or “a quick peek protocol” of the documents hit by search terms and also indicated willingness to consider appointment of a Special Master to conduct a review of the documents at the expense of the parties.

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