Electronic Discovery Law

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

 

1
Court Compels Production of Documents Withheld as Nonresponsive, Orders Requesting Party to Bear Costs of Re-Review
2
“No Harm, No Foul”: Court Denies Motion for Spoliation Sanctions Pursuant to Rule 37(e)
3
The ABA Journal’s Web 100 – Nominate Your Favorites!
4
Lack of “Meaningful” Communication with Opposing Counsel, Client Results in “Overly Complex” and Burdensome Agreement; Partial Costs Shifted
5
Mandatory Initial Discovery Pilot Project Underway in AZ and IL Federal Courts
6
NY County Addresses Technological Competence
7
No Sanctions for Unintentional, Automatic Deletion of Web History and Related Information
8
TX Supreme Court Addresses Format of Production, Applies Proportionality
9
“Discovery can be burdensome even as it is inexpensive.”
10
“Applying TAR to the universe of electronic material before any keyword search reduces [it] is the preferred method.”

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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“No Harm, No Foul”: Court Denies Motion for Spoliation Sanctions Pursuant to Rule 37(e)

Snider v. Danfoss, LLC, 15 CV 4748, 2017 WL 2973464 (N.D. Ill. July 12, 2017)

In this case, the court addressed Plaintiff’s request for sanctions for Defendant’s failure to preserve emails and, concluding the information did “not appear to be relevant” and that Plaintiff was not prejudiced, denied Plaintiff’s motion for sanctions:

Federal Rule of Civil Procedure 37(e) incorporates the long-standing legal principle embodied in the phrase used on basketball courts everyday across the country: “No harm; no foul.” Under the particular facts of this case, Defendant’s admitted and erroneous destruction of electronically stored information (ESI), which does not appear to be relevant, has not prejudiced Plaintiff. Accordingly, sanctions are not warranted under Rule 37(e).

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The ABA Journal’s Web 100 – Nominate Your Favorites!

Dear Readers,

It is our pleasure to provide you with regular summaries of important and interesting e-Discovery opinions and other e-Discovery resources. We hope you enjoy them.  If you do, please consider nominating us for the ABA Journal’s Web 100 – a celebration of the “best of the legal industry on the web.”  Nominations are due no later than 11:50 p.m. CT on Sunday, July 30, 2017 and can be made by filling out the nomination form, available here.

Thanks for your interest in our blog!

Sincerely,

The K&L Gates Electronic Discovery Law Blog Team

Lack of “Meaningful” Communication with Opposing Counsel, Client Results in “Overly Complex” and Burdensome Agreement; Partial Costs Shifted

Bailey v. Brookdale Univ. Hosp. Med. Ctr., No. C 16-2195(ADS)(AKT), 2017 WL 2616957 (E.D.N.Y. June 16, 2017)

In this single-plaintiff employment litigation, Plaintiff claimed that the cost of production, equaling approximately $2,000-$3,000, was unduly burdensome in light of his personal financial situation, despite the existence of an ESI agreement between the parties, “so-ordered” by the court. Ultimately, the court concluded that although the data was not inaccessible, cost-shifting was appropriate because it appeared that the agreement proposed by the defendants was of a type “typically utilized in a more complex litigation involving multiple parties and corporate entities” and, more notably, because it appeared that Plaintiff’s counsel had not engaged in a “meaningful meet-and-confer session with opposing counsel concerning t[he] Agreement” or thoroughly reviewed the Agreement prior to signing it.  In addition to failing to properly confer with opposing counsel, the court concluded that “Plaintiff’s counsel did not engage in meaningful discussions with his client regarding the terms of the proposed agreement and what costs might be incurred . . . .”  Thus, absent any indication that Defendants would consider an alternative and less expensive form of production, the court ordered 40% of production costs shifted to Defendants and indicated that “fairness dictate[d]” that Plaintiff’s remaining costs “should be borne by Plaintiff’s counsel rather than Plaintiff himself.”

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Mandatory Initial Discovery Pilot Project Underway in AZ and IL Federal Courts

A three-year pilot project studying “whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery will reduce the cost and delay of civil litigation” is now underway in the District of Arizona and the Northern District of Illinois.  All civil cases in these jurisdictions, except those exempted by the program’s Standing Order, will be subject to the provisions of the program.

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NY County Addresses Technological Competence

Formal Opinion 749

In February, the NY County Lawyers Association Professional Ethics Committee issued Formal Opinion 749, addressing “[a] lawyer’s ethical duty of technological competence with respect to the duty to protect a client’s confidential information from cybersecurity risk and handling e-discovery when representing clients in a litigation or government investigation.” The committee summarized its detailed analysis as follows:

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No Sanctions for Unintentional, Automatic Deletion of Web History and Related Information

Eshelman v. Puma Biotech., Inc., No. 7:16-CV-18-D, 2017 WL 2483800 (E.D.N.C. June 7, 2017)

In this case, the court denied Plaintiff’s motion for an order permitting a jury instruction regarding Defendant’s failure to preserve web browser history and related information for persons responsible for the preparation of an allegedly defamatory presentation where Plaintiff failed to establish that the lost information could not be restored or replaced through additional discovery or that the failure to preserve was prejudicial or intentional.

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TX Supreme Court Addresses Format of Production, Applies Proportionality

In re State Farm Lloyds, Nos. 15-0903, 15-0905, 2017 WL 2323099 (Tex. Mar. 26, 2017)

Today, we elucidate the guiding principles informing the exercise of discretion over electronic-discovery disputes, emphasizing that proportionality is the polestar. In doing so, we further a guiding tenet of the Texas Rules of Civil Procedure: that litigants achieve a “just, fair, equitable and impartial adjudication . . . with as great expedition and dispatch and at the least expense . . . as may be practicable.”

In this dispute over the format of production, the Supreme Court of Texas took its opportunity to “(1) clarify that neither the requesting party nor the producing party has a unilateral right to specify the format of discovery under Rule 196.4 and (2) provide guidance regarding the application of Rule 192.4’s proportionality factors in the electronic-discovery context.” In so doing, the court denied the request for mandamus relief without prejudice “to allow the relator to seek reconsideration by the trial court in light of [the] opinion.”  The court summarized its conclusions as follows:

Under our discovery rules, neither party may dictate the form of electronic discovery. The requesting party must specify the desired form of production, but all discovery is subject to the proportionality overlay embedded in our discovery rules and inherent in the reasonableness standard to which our electronic-discovery rule is tethered. The taproot of this discovery dispute is whether production in native format is reasonable given the circumstances of this case. Reasonableness and its bedfellow, proportionality, require a case-by-case balancing of jurisprudential considerations, which is informed by factors the discovery rules identify as limiting the scope of discovery and geared toward the ultimate objective of “obtain[ing] a just, fair, equitable and impartial adjudication” for the litigants “with as great expedition and dispatch at the least expense … as may be practicable.” (Citations omitted.)

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“Discovery can be burdensome even as it is inexpensive.”

Gordon v. T.G.R. Logistics, Inc., No. 16-cv-00238-NDF, 2017 WL 1947537 (D. Wy. May 10, 2017)

In this personal injury case, Defendant requested production of Plaintiff’s entire “Facebook account history” for her two accounts (and later limited the relevant timeframe of the request to information from three years prior to the accident through the present). In response, Plaintiff produced information that referenced the at-issue auto accident or her injuries and also provided information identified by a set of keywords set forth by Defendant.  She objected to further production based on a lack of relevance, undue burden, and invasion of privacy.  The court granted Defendant’s subsequent motion to compel, but imposed significant limits on the scope of production.

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“Applying TAR to the universe of electronic material before any keyword search reduces [it] is the preferred method.”

FCA USA LLC v. Cummins, LLC, No. 16-12883 (E.D. Mich. Mar. 28, 2017)

In this case, the court was asked to rule on the parties’ dispute regarding “whether the universe of electronic material subject to TAR review should first be culled by the use of search terms.” The court, although expressly reluctant to get involved, concluded that it should not:

Be that as it may, having reviewed the letters and proposed orders together with some technical in-house assistance including a read of The Sedona Conference TAR Case Law Primer, 18 Sedona Con. J. __ (forthcoming 2017), the Court is satisfied that FCA has the better postion [sic]. Applying TAR to the universe of electronic material before any keyword search reduces the universe of electronic material is the preferred method. The TAR results can then be culled by the use of search terms or other methods.

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

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