Electronic Discovery Law

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

1
America West Bank Members v. State of Utah (D. Utah 2021)
2
Addi v. Corvias Management-Army, LLC (D. Md. 2021)
3
Axis Insurance Company v. American Specialty Insurance & Risk Services, Inc. (N.D. Ind. 2021)
4
Allen v. PPE Casino Resorts Maryland, LLC (D. Md. 2021)
5
AnywhereCommerce, Inc. v. Ingenico, Inc. (D. Mass. 2021)
6
Aviles v. S&P Global, Inc. (S.D.N.Y. 2021)
7
Boegh v. Harless (W.D. Ky. 2021)
8
Brown v. SSA Atlantic (S.D. Ga. 2021)
9
Benebone LLC v. Pet Qwerks, Inc. (C.D. Cal. Feb. 18, 2021)
10
Balderas v. Ill. Cent. R.R. Co. (N.D. Ill. Jan. 8, 2021)

America West Bank Members v. State of Utah (D. Utah 2021)

Key Insight: Plaintiff filed a motion to compel after learning through the discovery process that defendants purged or lost emails and documents. Plaintiff sought “discovery on discovery” to discern the identities of individuals whose emails would have been responsive if those emails were still available, the identification of documents or categories of documents no longer available, and an explanation as to why other responsive documents were not produced. The court granted plaintiff’s request but found it “strictly limited to the purged former employee email accounts.” No additional depositions were permitted and plaintiff’s fourteen interrogatories on this topic were “neither reasonable nor proportional” to the limited nature of the discovery needed.

Nature of Case: Civil rights

Electronic Data Involved: Email and documents

Case Summary

Addi v. Corvias Management-Army, LLC (D. Md. 2021)

Key Insight: Work-product privilege protects documents prepared in anticipation by a party, its attorneys, or its consultants and agents. A consulting expert’s analysis and reports is protected work product. However, a consulting expert becomes a fact witness when it also acts a scheduler, inspector, or remediator. No protection would apply to those activities. The capacity in which the third party was acting will determine whether documents are work product. Raw data is not protected. However, the decision that certain subsets or compilations of data are relevant in advising the client or preparing the defense is protected. Opinions regarding such information to assist in advising or preparing the defense are also protected.

Nature of Case: Class Action, Tort

Electronic Data Involved: Raw Data, Report Logs, Electronic Documents Generally

Case Summary

Allen v. PPE Casino Resorts Maryland, LLC (D. Md. 2021)

Key Insight: Plaintiffs sought a protective order to prevent defendant from obtaining ESI from five different social media platforms they were active on. The court found that while a plaintiff’s social media postings could be relevant to a claim for “garden variety” emotional distress damages, some caution was necessary, such that a “deeper dive” into social media postings may be justified only in cases involving “severe and specific emotional distress” allegations. Since plaintiff alleged “garden variety” emotional distress stemming from defendant’s allegedly wrongful conduct, the discovery must be narrowed as follows: “specific references to serious, non-transient emotional distress in connection with the incidents described in their Complaint,” i.e., diagnosable conditions, visits to professionals for treatment of distress, treatment regimens and conversations regarding same; time frame limited from date contained in complaint of onset of difficulties to the date of filing of complaint; production limited to information found in a typical download of data from plaintiffs’ own accounts and plaintiffs “need not engage in extraordinary efforts in obtaining responsive information.”

Nature of Case: Employment discrimination

Electronic Data Involved: Social media posts

Case Summary

AnywhereCommerce, Inc. v. Ingenico, Inc. (D. Mass. 2021)

Key Insight: The court granted reconsideration of plaintiffs’ motion to compel discovery of documents in the possession of a corporate defendant in France. In a prior order, the court found that the GDPR did not preclude the court from ordering defendants to produce evidence, but based the order on plaintiffs’ representation that much of the requested information was located in the U.S. and therefore in the possession of domestic defendants. Thus, the court bifurcated its analysis to exclude any documents in the possession of French defendants. On reconsideration, plaintiffs claimed the important and relevant documents were located in France. Applying the factors from Restatement (Third) of Foreign Relations Law § 442(1)(c), the court found they weighed in favor of disclosure, together with the entry of a protective order that would protect France’s interests under the GDPR.

Nature of Case: Breach of contract

Electronic Data Involved: ESI generally

Case Summary

Aviles v. S&P Global, Inc. (S.D.N.Y. 2021)

Key Insight: Plaintiffs filed a Motion to Compel to allow them unfettered access to all information located on a server. Defendant objected, claiming that Plaintiffs had no legal right to the server, and information on the server was irrelevant, confidential and/or privileged. The Court found that the request (Motion to Compel) was overbroad and premature, and denied Plaintiffs’ Motion.

Nature of Case:Fraud, Shareholder Suit, Diversity Jurisdiction

Electronic Data Involved: Hard Drive, Server,

Case Summary

Boegh v. Harless (W.D. Ky. 2021)

Key Insight: The pro se plaintiff was ordered to produce social media (Facebook) content relating to the events at issue in the amended complaint. Based on his public Facebook posts, plaintiff commented extensively on the case and identified evidence and witnesses. Plaintiff argued that defendants already had the information from the public posts, but the court found there is a strong indication plaintiff was withholding relevant and discoverable evidence that was private in his account.

Nature of Case: Civil rights – personal injury

Electronic Data Involved: Social media

Case Summary

Brown v. SSA Atlantic (S.D. Ga. 2021)

Key Insight: Defendant filed a motion to compel and for sanctions regarding plaintiff’s failure to identify and produce Facebook account information. Plaintiff had deleted or deactivated and failed to disclose the existence of his multiple Facebook accounts. The court found that the ESI was not “spoliated” since plaintiff only deactivated, not deleted, his Facebook accounts. However, the court found plaintiff’s conduct “troubling” and ordered plaintiff to produce account data for each Facebook account he maintains or maintained, whether deactivated or not, and if defendant finds that substantive information was lost or destroyed, it could renew its motion for spoliation sanctions.

Nature of Case: Personal injury

Electronic Data Involved: Facebook

Case Summary

Benebone LLC v. Pet Qwerks, Inc. (C.D. Cal. Feb. 18, 2021)

Key Insight: Court granted defendants’ motion to compel plaintiff to produce Slack messages used as part of its internal business communications. Despite the potentially 30,000 Slack messages to review, the court found compelling the testimony from defendants’ forensic expert who stated there are a number of tools and software vendors that have streamlined review and production of Slack messages. Further, searches could be limited to certain Slack channels, users and custodians to very streamline the volume of messages for review. Thus, “requiring review and production of Slack messages by Benebone is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional to the needs of this case – if the requests and searches are appropriately limited and focused.”

Nature of Case: Intellectual property

Electronic Data Involved: Slack messages

Case Summary

Balderas v. Ill. Cent. R.R. Co. (N.D. Ill. Jan. 8, 2021)

Key Insight:

Further discovery must be based on more than mere speculation or suspicion that additional documents exist. The moving party must make a case showing “it can be reasonably deduced that other documents exist[.]”

The Court was unable to reach a ruling regarding Plaintiff’s requested search terms due to insufficient information. While Defendants did reject the terms and did not provide alternatives, plaintiff did not say what the requested terms were or why they were rejected.

With regards to specific discovery requests, Defendants were ordered to search for and produce responsive documents. The Court noted “boilerplate” objections without further explanation are equivalent to making no objection at all and individual authorization to access electronic communications is not required when the individuals are parties to the case. Additionally, emails and texts messages party’s employee are a compelling form of evidence that can be particularly significant in litigation.

Nature of Case: Civil Rights, Employment Discrimination

Electronic Data Involved: Personnel Records, Business Records, Electronic Communications, Email, Texts, Voicemails, Instant Messages, Electronic Documents Generally

Case Summary

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