June 2020 – Electronic Discovery Law

Densen v. The Corporation of the President of the Church of Jesus Christ of Latter- Day Saints (D. Utah 2020)

Jun 29 2020

Key Insight: A forensic imaging of Plaintiff’s electronic devices and cloud based accounts was warranted because Plaintiff lost relevant evidence during the discovery process and continually made misrepresentations regarding this evidence and how it was stored. The forensic imaging would preserve any evidence and possible recover evidence that has been loss. This would not be an invasion of privacy as Plaintiff’s privacy can be adequately protected. A third party service provider can image the devices and collect the data. Counsel would not have access to any of the data until after the court approves a review plan, which would implement additional safeguards to ensure there is no access to irrelevant or private information.

Nature of Case: Sexual Assault, Fraud

Electronic Data Involved: Audio Recording, Cloud Based Account Data, Electronic Device Data

Case Summary

Denson v. Corp. of the President of the Church of Jesus Christ of Latter-Day Saints (D. Utah, 2020)

Jun 29 2020

Key Insight: Plaintiff’s explanation regarding loss of evidence had changed and court ruled that defendant was entitled to have a third party collect and preserve the evidence. Plaintiff offered passwords to accounts, but court was concerned about possible destruction given Plaintiff’s changing explanation regarding social media accounts and recording.

Nature of Case: Sexual Assault

Electronic Data Involved: Electronic Devices and Cloud Based Accounts; Recording of conversation

Keywords: invasion of privacy, loss of evidence

View Case Opinion

EEOC v. George Washington Univ. (D.D.C. June 26, 2020)

Jun 26 2020

Key Insight: Under FRE 502(d), inadvertent disclosures do not result in a waiver of privilege. While this rule can be utilized to reduce costs of pre-production privilege review, a party cannot be forced to engage in a discovery process that would likely result in the production of privileged documents.

Nature of Case: Employment Discrimination, Equal Pay, Title VII

Electronic Data Involved: Email

Case Summary

US EEOC v The George Washington University (D.D.C. 2020)

Jun 26 2020

Key Insight: Defendant was ordered to produce non-privileged emails responsive to RFP’s. Linear reivew proposed by Defendant wasn’t necessary and other paths existed. Concerns that potential production of privileged information was not enough to justify withholding. Defendant claimed a document by document review was needed, but court believed claw back provisions would be sufficient.

Nature of Case: employment discrimination

Electronic Data Involved: Email

Keywords: review process, 502, privilege

View Case Opinion

Lawson v. Spirit Aerosystems, Inc. (D. Kan. June 18, 2020)

Jun 18 2020

Key Insight: Cost shifting of the TAR costs to Plaintiff was warranted based on an analysis of the proportionality factors. Plaintiff was warned to narrow his discovery multiple times, continued to demand overbroad criteria for TAR, was aware of the potential costs of TAR, and was aware the discovery he sought led to largely non-responsive documents. Moreover, Defendant produced responsive documents by conducting its own search and production of documents outside of the TAR process.

Nature of Case: Breach of Contract, Non-Compete

Electronic Data Involved: Electronic Documents Generally

Case Summary

Lawson v. Spirit Aerosystems (Kansas, 2020)

Jun 18 2020

Key Insight: When plaintiff was allowed to dictate defendant’s electronic discovery process, cost shifting to plaintiff is appropriate when electronic discovery performed was not proportionate to the case

Nature of Case: Employment non-compete agreement

Electronic Data Involved: Electronic records

Keywords: Cost shifting, technology assisted review, TAR, aerospace

View Case Opinion

Optronic Techs., Inc. v. Ningbo Sunny Elec. Co. (N.D. Cal. June 1, 2020)

Jun 01 2020

Key Insight: Sanctions were warranted because counsel failed to adequately supervise Defendant’s discovery responses. While counsel is not required to personally conduct or directly supervise a client’s discovery collection and review process, they must make a reasonable effort to ensure the client produces all response documents. It is not sufficient to only provide guidance on how to search for documents without following up on whether the guidance was followed and what steps were actually taken.

Nature of Case: Antitrust

Electronic Data Involved: Electronic Documents

Case Summary

Optronic Techs., Inc. v. Ningbo Sunny Elec. Co. (N.D. Cal., 2020)

Jun 01 2020

Key Insight: Counsel must be involved with discovery to certify process followed. Counsel’s lack of involvement warranted sanctions in this case.

Nature of Case: Antitrust

Electronic Data Involved: Various ESI

Keywords: sanctions, certification

View Case Opinion

Archive - June 2020