kgates – Page 6 – Electronic Discovery Law

Once Again, UK Court Approves Use of Predictive Coding

May 23 2016

It seems that predictive coding may be catching on in the UK. Not long ago, the English High Court approved the use of predictive coding for the first time in Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (Ch). In that case, the parties agreed to the use of predictive coding software and merely sought approval from the court. Now, The Lawyer (registration required) reports that the High Court has once again weighed in on the issue, this time to approve the use of predictive coding despite the apparent objection of at least one party. This is the first time such an order has been granted. While the details of the order and underlying disagreement have yet to be revealed, the result bodes well for parties seeking to rely on such technology in future.

Stay tuned to this space for more information as it becomes available.

Citing Restoration and Production of Deleted Emails, Court Denies Sanctions

May 17 2016

FiTeq Inc. v. Venture Corp., No. 13-cv-01946-BLF, 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016)

In this case, the court denied Plaintiff’s motion to “instruct jurors that they may presume Venture carried out or allowed the destruction of relevant evidence favorable to FiTeq” despite an executive’s deletion of potentially relevant emails where the messages were eventually recovered and produced and where Plaintiff failed to prove that other responsive documents existed or to establish that the ESI was not restored or replaced.

Court Orders Production of “Download Your Info” Report from Facebook

May 11 2016

Rhone v. Schneider Nat’l Carriers, Inc., No. 4:15-cv-01096-NCC, 2016 WL 1594453 (E.D. Mo. Apr. 21, 2016)

In this personal injury case, the court ordered Plaintiff to produce a “Download Your Info” report from Facebook, spanning from the date of the at-issue incident (June 2, 2014) through the present. Per Facebook’s Help Center (last accessed May 10, 2016) a report contains 70 categories of information, including: About Me, Chat (history), Friends, Followers, Logins, Logouts, Messages, Photos, Photos Metadata, Posts by You, Posts by Others, Post to Others, Removed Friends, Searches, Shares, Status Updates, and Videos.

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

May 03 2016

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.

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

Apr 13 2016

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.

Update: CAT3 Dismissed, Along with Motion for Sanctions

Apr 08 2016

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

Apr 05 2016

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.

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

Apr 05 2016

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).”

No Sanctions for Failure to Halt Automatic Deletion of Text Messages

Mar 30 2016

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.

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

Mar 16 2016

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.

Author - kgates