Electronic Discovery Law

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

1
iMessages Are No Longer Immutable: The Ability to Edit and Unsend iMessages Provided by Apple iOS 16 Spurs New E-Discovery Questions
2
Substance Use Disorder Patient Records: Important Limitations on Disclosure in Litigation or Otherwise
3
Chinese Data Security, Data Protection, and Cybersecurity Law: A Recent Enforcement Action Resulting in Large Fines Highlight Risks
4
New Risks of the Evolving Workforce
5
Calhoun v. Google LLC (N.D. Cal. 2022)
6
Edwards v. McDermott Int’l, Inc. (S.D. Tex. 2022)
7
Jordan Khan Music Co. v. Taglioli (E.D. Tex. 2022)
8
In re Actos End Payor Antitrust Litig. (S.D.N.Y. 2022)
9
Europe v. Equinox Holdings, Inc. (S.D.N.Y. 2022)
10
Famulare v. Gannett Co., Inc. (D.N.J. 2022)

iMessages Are No Longer Immutable: The Ability to Edit and Unsend iMessages Provided by Apple iOS 16 Spurs New E-Discovery Questions

On September 16th, Apple released iOS 16, which now allows users to edit or unsend iMessages. A sender can edit an iMessage up to five times within fifteen minutes after the message is sent. A sender can also unsend an iMessage within two minutes after the message is sent. Recipients of such messages receive an alert that the iMessage was unsent or edited, but do not see the specific changes.

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Substance Use Disorder Patient Records: Important Limitations on Disclosure in Litigation or Otherwise

Under 42 U.S.C. 290dd-2, federal law requires “records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance use disorder education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States” to be maintained confidentially and disclosed only as provided under this law.  Accordingly, such substance abuse treatment programs and related third-party payers and administration entities should be aware of the restrictions on disclosure and use of patient records relating to certain substance use disorders under this statute and 42 C.F.R. Part 2.  Violations of this regulation may be subject to criminal penalty.  Significantly, this regulation does not compel disclosure of such records even if they fall into permissible circumstances, but rather indicates circumstances in which these records may be disclosed.  Patient consent and/or a court order authorizing disclosure of patient information otherwise prohibited by this regulation is necessary in order to provide this information in response to a subpoena or other legal requirement.

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Chinese Data Security, Data Protection, and Cybersecurity Law: A Recent Enforcement Action Resulting in Large Fines Highlight Risks

Electronic discovery for US litigation and legal proceedings often implicates data outside the US.  As data privacy and protection laws evolved around the globe, it’s critical to understand the limitations obstacles that may arise when collecting, processing, reviewing, and producing such data. China’s Data Security Law (“DSL”) and Personal Information Protection Law (“PIPL”), both enacted in 2021, have received heightened attention following China’s imposition of fines totaling roughly $1.2 billion in light of violations of these laws and its Cybersecurity Law (“CSL,” enacted in 2017) by Didi, China’s largest ride-sharing service provider.  China’s DSL and PIPL are particularly noteworthy of their potential application to data processing and transfer actions that may occur both during the ordinary course of business and in response to litigation in other jurisdictions, such as the United States.

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New Risks of the Evolving Workforce

K&L Gates recently hosted a series of webinars covering potential legal and regulatory implications businesses must consider as a result of the now common hybrid work setting. The cross-practice series focused on compliance issues from a Tax, Data Protection, Privacy, and Security, e-Discovery Analysis and Technology, and Labor, Employment, and Workplace Safety perspective.

Webinar recordings and associated materials are available on the K&L Gates HUB.

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Calhoun v. Google LLC (N.D. Cal. 2022)

Key Insight: This matter relates to the court’s order to compel and order to show cause as to why Google should not be sanctioned for interfering with the production of third-party Ernst & Young (E&Y) documents ordered by the court. Plaintiff subpoenaed E&Y for documents relating to the valuation of certain user information. Google moved for a protective order and the court granted in part and denied in part the motion, narrowly tailoring the allowed requests. E&Y then identified 6,322 responsive documents and Google reviewed and deselected 6,232 documents on the basis of relevance, resulting in E&Y’s production of 90 documents. Google maintains it was justified in working with E&Y to cull irrelevant documents from the final production. The court noted: “Googles proffered ‘justification,’ primarily that the documents reflect highly confidential financial information not relevant to the claims in suit, was heard and rejected by this Court twice.” The court ordered Google to pay plaintiff’s fees and costs for having to bring the motion to compel.

Nature of Case: Data Privacy Class Action

Electronic Data Involved: Financial documents

Case Summary

Edwards v. McDermott Int’l, Inc. (S.D. Tex. 2022)

Key Insight: The court was required to balance the proportionality factors to determine whether plaintiff’s proposed search terms that would require defendants to review 1.3 million documents were proportional to the needs of the case or if defendants’ proposal to review half as many documents was more proportional. In applying the proportionality factors, the court found it a “close call” but granted the motion in plaintiff’s favor, ordering defendants to apply plaintiff’s proposed search terms and to begin review of the documents and produce them on a rolling basis.

Nature of Case: Securities Fraud

Electronic Data Involved: Email

Case Summary

Jordan Khan Music Co. v. Taglioli (E.D. Tex. 2022)

Key Insight: Plaintiffs moved to compel the forensic examination of defendants’ devices and data storage for imaging and inspection, along with their licenses for all software used for their businesses. Plaintiffs claimed the discovery was relevant to their RICO claim, alleging continued criminal copyright infringement of unlicensed software as a predicate act. Defendants claimed forensic examination would be vastly disproportionate to the issue. The court agreed with defendants and denied plaintiffs’ motion to compel, finding the forensic examination would allow plaintiffs to become privy to information beyond the scope of audio software and they could engage in the discovery process in a less invasive but still worthwhile manner. Accordingly, the court ordered that defendant revise their boilerplate objections and respond to plaintiffs discovery requests to identify computers, storage mediums and software used in Defendants’ business within a specific time frame.

Nature of Case: Trademark Infringement

Electronic Data Involved: Electronic Devices, Computers, Software

Case Summary

In re Actos End Payor Antitrust Litig. (S.D.N.Y. 2022)

Key Insight: On plaintiff’s motion to compel, the magistrate judge ruled that defendant Takeda was to produce “all responsive ESI to Plaintiffs, including earlier-in-time emails.” In its production, Takeda had used email threading by which a party reviews and produced the most-inclusive email in a thread. The Discovery Protocol did not permit that approach. The magistrate emphasized the need for parties to have early discussions regarding ESI to avoid later misunderstandings and disputes. Takeda’s exclusion of lesser included emails from production resulted in the exclusion of metadata associated with the earlier chain emails. The magistrate declined to impose email threading on plaintiffs and recognized that while requiring Takeda to produce earlier-in-time emails would cause additional burden, such burden is not undue since Takeda agreed to the Discovery Protocol and likely has already reviewed many of the emails at issue.

Nature of Case: Antitrust

Electronic Data Involved: Email

Case Summary

Europe v. Equinox Holdings, Inc. (S.D.N.Y. 2022)

Key Insight: Plaintiff brought a motion for sanctions alleging defendants failed to preserve a key piece of evidence (the September 2019 managers’ schedule from the month when she was terminated) in her employment discrimination suit. The court concluded that defendants should have taken steps to preserve the schedule in December 2019 when plaintiff notified defendants that she intended to initiate litigation, and they failed to do so. The court noted that the harshest sanction of adverse inference was not appropriate because it did not appear by clear and convincing evidence that the failure to preserve the evidence was done in order to gain an advantage in the litigation. The court ordered that plaintiff could present to the jury that the September 2019 schedule was lost and defendants could not compare her lateness to other employees in September 2019 or argue that her co-workers’ lateness in September 2019 was less than hers.

Nature of Case: Employment Discrimination

Electronic Data Involved: Business Documents

Case Summary

Famulare v. Gannett Co., Inc. (D.N.J. 2022)

Key Insight: The discovery dispute involved whether defendants are obligated to produce screenshots of certain computer generated reports from defendants’ computer program known as Salesforce. Salesforce maintains and memorializes various performance metrics of individual account executives. Plaintiff generated and printed some of her own performance metrics and seeks in discovery the same reports for certain other defendant employees for purposes of comparison. Defendants assert that the reports are not free-standing, fixed reports but are screenshots of the Salesforce dashboard and they cannot generate reports but can only provide her with the underlying historical data in Excel, which they already provided. The court affirmed the magistrate judge’s opinion, ruling that whether Salesforce is incapable of generating and printing the reports as they maintain it is would need to be determined by a Rule 30(b)(6) deposition. The functionality of the Salesforce data is the core issue in the motion and the court reiterated the magistrate’s sentiments that until the deposition is completed, the nature of the Salesforce program and its capabilities are unknown.

Nature of Case: Employment Discrimination

Electronic Data Involved: Screenshots

Case Summary

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