Electronic Discovery Law

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

 

1
Court Rejects Propriety of Non-Responsive Redactions, Compels Production
2
Court Compels Production for Plaintiffs’ Quick Peek Over Defendant’s Objection
3
Citing Failure to Cooperate, Court Orders Use of Specific Keyword Search Terms
4
Court Compels Search of Additional Custodians, Notes Defendant’s Failure to Provide “Even a Rough Estimate” of the Alleged Burden
5
The Expert Institute: Best Legal Blog Nominee – Vote Now!
6
Court Imposes Adverse Inference for Failure to Preserve Non-Party’s Text Messages within Defendants’ “Control”
7
Court: Production of Hard Copy Versions of Documents Also Kept As ESI Does Not “Run Afoul” of Rule 34
8
Supervision Trumps Speculation: Court Denies Motion to Compel Additional Search
9
“Reckless” Production, Inadequate Clawback Agreement Result in Waiver of Privilege
10
Court Compels Production of Documents Withheld as Nonresponsive, Orders Requesting Party to Bear Costs of Re-Review

Court Rejects Propriety of Non-Responsive Redactions, Compels Production

IDC Fin. Pub., Inc. v. Bonddesk Grp., LLC, No. 15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)

In this case, the court granted Plaintiff’s motion to compel production of over 600 documents previously produced with extensive non-responsive redactions applied. Defendants argued that the redactions were necessary to protect confidential business information that was not relevant to the underlying dispute and cited In re Takata Airbag Prods. Liab. Litig., 14-24009-CV-MORENO, 2016 WL 1460143 (S.D. Fla. Feb. 24, 2016), in support of their position. In Takata, the court allowed certain non-responsive redactions “because of its concern that the documents contained competitively sensitive materials that may have been exposed to the public, despite protective orders.” In the present case, the court cited Burris v. Versa Prods., Inc., No. 07-3938 (JRT/JJK), 2013 WL 608742 (D. Minn. Feb. 19, 2013) for the propositions that non-responsive redactions are not explicitly supported by the federal rules and that allowing such redactions has the potential for abuse, where parties would be incentivized to “hide as much as they dare.” The court further reasoned that Defendants did not assert any privilege or provide a “compelling reason” for their “extensive” redactions and that they failed to explain why the existing protective order did not provide adequate protection. Thus, the court concluded that it “[did] not see a compelling reason to alter the traditionally broad discovery allowed by the rules by letting the defendants unilaterally redact large portions of their responsive documents on relevance grounds” and granted Plaintiff’s motion to compel.

A copy of the court’s brief order is available here.

Court Compels Production for Plaintiffs’ Quick Peek Over Defendant’s Objection

Fairholme Funds, Inc. v. United States, No. 13-456C, 2017 WL 4768385 (Fed. Cl. Oct. 23, 2017)

In this case the court granted Plaintiffs’ motion to compel a “quick peek” at approximately 1500 documents withheld as privileged pursuant to the bank authorization and deliberative process privileges despite Defendant’s strong objection.  In making its order, the court noted the parties’ agreement that the clawback provision in their existing protective order would be governed by Rule 502(d), precluding waiver, and also reasoned, among other things, that the quick peek would expedite resolution of the dispute and avoid the need for in camera review, which Plaintiffs would inevitably request if their motion was denied.

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Citing Failure to Cooperate, Court Orders Use of Specific Keyword Search Terms

United States v. New Mexico State Univ., No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017)

In this pay discrimination case, the Court addressed Defendants’ motion for a protective order precluding further searching for responsive documents. Citing defense counsel’s failure to “adequately confer” before performing the initial searches, “which resulted in searches that were inadequate to reveal all responsive documents,” the Court concluded that “which searches will be conducted is left to the Court” and went on to order Defendants to conduct additional searches with specific terms, many of which were proposed by the plaintiff.

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Court Compels Search of Additional Custodians, Notes Defendant’s Failure to Provide “Even a Rough Estimate” of the Alleged Burden

Mann v. City of Chicago, Nos. 15 CV 9197, 13 CV 4531, 2017 WL 3970592 (N.D. Ill. Sept. 8, 2017)

Plaintiffs sued the City of Chicago and the Chicago police alleging that they had been wrongfully arrested, detained and prosecuted and that they were abused at “off the books” detention centers without access to counsel. Although the parties agreed on search terms and the majority of custodians, they “reached an impasse” as to which custodians in the Mayor’s Office should be searched, including the Mayor himself.  Because the court found the information sought would be relevant and because Defendant did not establish the alleged burden of the request—failing to provide even an estimate—the court granted in part Plaintiffs’ motion to compel, including their request to add the Mayor.  In so deciding, the court also noted several proportionality factors, including the importance of the issues at stake and the plaintiffs’ lack of access to the requested information.

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The Expert Institute: Best Legal Blog Nominee – Vote Now!

We are pleased to announce that the Electronic Discovery Law blog has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the AmLaw category.  Thanks to those who nominated us and to all of our readers and subscribers (sign up today!) for their ongoing interest in our blog. Voting is now open and runs through 12:00 AM on November 3rd. If you have appreciated our blog over the years, we would appreciate your vote!  CLICK HERE to cast your vote for the Electronic Discovery Law blog.

Court Imposes Adverse Inference for Failure to Preserve Non-Party’s Text Messages within Defendants’ “Control”

Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS), 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017)

In this case, the court imposed an adverse inference against certain defendants for their failure to preserve text messages in the possession of a non-party, where the court found that the defendants had control of the non-party’s text messages, citing the non-party’s close working relationship with the defendants, his prior participation in the litigation (e.g., by providing documents, etc.), and his financial interest in the at-issue film (and thus the outcome of the litigation).

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Court: Production of Hard Copy Versions of Documents Also Kept As ESI Does Not “Run Afoul” of Rule 34

Ortega v. Mgmt. & Training Corp., NO. 16-cv-0665 MV/SMV, 2017 WL 3588818 (D.N.M. Jan. 1, 2017)

In this case, Plaintiff sought to compel native/electronic production of documents previously produced in hard copy. Defendant claimed that the documents in question were “ordinarily kept by Defendant both electronically and in hard copy” and produced only the hard copy format.  The court found that Defendant’s production did not “run afoul of Rule 34.”

Rule 34 does not require the producing party to produce documents in multiple formats. Fed. R. Civ. P. 34(b)(2)(E)(iii). Nor does Rule 34 require the producing party to produce electronically stored documents in the form in which they are ordinarily maintained. Fed. R. Civ. P. 34(b) advisory committee’s note to 2006 amendment. Rather, the producing party is required only to produce such documents in a “reasonably usable form”; it cannot convert electronically stored information “to a different form that makes it more difficult or burdensome for the requesting party” to use the documents. Id. Defendant’s production of hard copy versions of documents kept both electronically and in hard copy does not run afoul of Rule 34.

In footnote, the court “encourage[d]” the defendant to produce the documents electronically, “to the extent it [could] do so without incurring significant expense.”

A copy of the court’s brief order is available here.

Supervision Trumps Speculation: Court Denies Motion to Compel Additional Search

Mirmina v. Genpact LLC, No. 3:16CV00614, 2017 WL 3189027 (D. Conn. July 27, 2017)

In this case, Plaintiff sought to compel Defendant to conduct an additional search for ESI.  Plaintiff asserted that he was “concerned” that responsive communications were withheld from production and argued “in essence, that defendant’s search for ESI was insufficient because counsel relied upon an employee directly involved in the underlying claims of the suit to search her own emails for responsive documents.” Defendant opposed the motion and argued that Plaintiff’s concerns were “unfounded because the search for responsive records was coordinated and overseen by counsel.”  In support of that position, Defendant’s in-house counsel provided an affidavit outlining the approach:

In-house counsel: (1) issued a timely and detailed litigation hold to potential custodians of ESI, directing the preservation of any records and documents that might pertain to plaintiff’s claims; (2) gave instructions to the ESI custodians regarding searches and specific search parameters; (3) explained the importance of a thorough search to the ESI custodians; and (4) provided guidance when questions arose during the search. See id. In-house counsel affirms that he forwarded the results of the searches to outside counsel, who in turn conducted a review for processing and production. See id. Counsel for defendant has represented that a comprehensive search was conducted for all documents subject to production under the Initial Discovery Protocols, and all responsive documents have been disclosed.

In light of these representations, the Court was “satisfied that proper steps were taken and that counsel ha[d] appropriately assumed responsibility for ensuring that a comprehensive search was conducted.” The Court further reasoned that Plaintiff’s concerns appeared to be “based on nothing but speculation” and concluded that “[w]ithout any evidence to support plaintiff’s contention that defendant has ‘deliberately or by neglect, withheld communications[,]’ the Court [would] not require defendant to conduct an additional search for ESI.”

A full copy of the Court’s brief opinion is available here.

“Reckless” Production, Inadequate Clawback Agreement Result in Waiver of Privilege

Irth Sols. LLC v. Windstream Commc’ns LLC, No. 2:16-CV-219, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017)

In this case, despite the existence of a clawback agreement (not an order) indicating that “[i]nadvertent production of privileged documents does not operate as a waiver of that privilege,” the court found that privilege was waived by the inadvertent but “completely reckless” production of privileged materials … twice. In so concluding, the court rejected the notion that a clawback agreement always protects against waiver, regardless of its terms, and instead indicated its support for courts that have precluded protection from a clawback agreement when the disclosure was “completely reckless” and for a framework that allows a court to rely on Fed. R. Evid. 502(b) when a clawback agreement fails to provide sufficiently concrete terms.

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Court Compels Production of Documents Withheld as Nonresponsive, Orders Requesting Party to Bear Costs of Re-Review

Nachurs Alpine Sols. Corp. v. Banks, No. 15-CV-4015-LTS, 2017 WL 2918979 (N.D. Iowa July 7, 2017)

In this case, Defendants identified a number of potentially responsive documents by conducting a search with court-approved terms. Upon review of those documents, many were withheld from production as nonresponsive.  When Plaintiff sought to compel production of additional documents it suspected were relevant, the court granted the request, but shifted the burden of reviewing the withheld documents to Plaintiff, including cost.

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