Electronic Discovery Law

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

1
Axis Ins. Co. v. American Specialty Ins. & Risk Servs., Inc. (December 2021)
2
America West Bank Members v. State of Utah (D. Utah 2021)
3
Doe v. Wesleyan University (D. Conn. 2021)
4
O’Donnell/Salvatori Inc. v. Microsoft Corp. (W.D. Wash. 2021)
5
Collins v. ControlWorx, LLC (M.D. La. 2021)
6
Addi v. Corvias Management-Army, LLC (D. Md. 2021)
7
FTC v. Noland (D. Ariz. Aug. 30, 2021)
8
Novit v. Metropolitan School District of Warren Township (S.D. Ind. 2021)
9
Maxus Liquidating Trust v. YPF (Bankr. D. Del 2021)
10
Huntsman v. Southwest Airlines Co. (N.D. Cal. 2021)

Axis Ins. Co. v. American Specialty Ins. & Risk Servs., Inc. (December 2021)

Key Insight: The court affirmed the Magistrate’s order granting (in part) plaintiff’s motion to compel discovery to produce documents, to correct metadata issues and to pay expenses plaintiff incurred in pursuing the motion to compel. Defendant only objected to the Magistrate’s order on the fee request. The court adopted the magistrate judge’s order granting a provisional award of fees and costs. It found that the defendant’s opposition to the motion to compel discovery was not substantially justified under FRCP 37(a)(5)(A).

Nature of Case: Breach of Contract

Electronic Data Involved: ESI

Case Summary

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

Doe v. Wesleyan University (D. Conn. 2021)

Key Insight: Plaintiff was expelled from Wesleyan University after being accused of cheating on her exams. Defendant alleged that plaintiff accessed a computerized learning management system, “Moodle”, while taking her exams. Plaintiff claimed the Moodle logs upon which her expulsion was based were faulty. Plaintiff moved to compel discovery, including ESI relating to Moodle regarding the installation, implementation and administration of Moodle at the college. The court found plaintiff was entitled to explore discovery on how the Moodle system logs and registers time. The discovery was relevant to defendant’s affirmative defense that plaintiff cheated and determining the time zone settings of the Moodle log was relevant to Plaintiff’s contention that Moodle was accessed hours before Plaintiff was taking the exams in question.

Nature of Case: Negligence

Electronic Data Involved: Electronic Devices

Case Summary

O’Donnell/Salvatori Inc. v. Microsoft Corp. (W.D. Wash. 2021)

Key Insight: Plaintiff moved the court to compel defendant to produce all non-privileged documents hitting on the agreed ESI search terms, regardless of whether they were relevant to a claim or defense in the case. Defendant had conducted a relevance review and withheld emails, such as employees joining or leaving the team, technical issues, and buying a new boat. The court denied plaintiff’s motion, finding that although there is little case law on the issue, “the courts that have addressed it have almost uniformly found that a relevance review, and the withholding of irrelevant documents, is appropriate.” Thus, the court ultimately held that “a party’s agreement to run search terms does not waive its right to review the resulting documents for relevance so long as the review can be done in a reasonably timely manner.”

Nature of Case: Copyright Infringement

Electronic Data Involved: Email

Case Summary

Collins v. ControlWorx, LLC (M.D. La. 2021)

Key Insight:

Defendant filed a Motion to Compel Plaintiff to produce audio recordings, hard drives, social media posts. Defendants’ Motion was granted. At least a portion of the data that Plaintiff was obligated to produce had been destroyed and/or missing due to a flood. After Plaintiff informed it of us, Defendant agreed to provide Plaintiff with an extension of time to correct his deficient discovery responses. Contingent on time for Plaintiff to allow his deposition to be retaken.

In his Response to Defendant’s Motion, Plaintiff did not assert that he complied with his discovery obligations but rather than production of the information sought was unreasonably cumulative or duplicative. For approximately 18 requests for production, Plaintiff failed to provide a response or objection, and failed to timely supplement his responses.

The Court granted largely Defendant’s Motion to Compel, ordering Plaintiff to respond to its requests for production, and supplement his responses to interrogatories, but also limiting Plaintiff’s responses to documents that would not require disclosure of attorney-client privilege and/or information that was not overly broad. Moreover, the Court ordered Plaintiff to appear for an additional supplemental deposition and also state that electronically stored information relevant to the litigation was actually destroyed (due to flooding) and submit the damaged storage devises for expert inspection. The

respective parties were responsible for their own attorney’s fees and costs regarding the discovery issues.

Nature of Case: Employment Discrimination, Family and Medical Leave Act

Electronic Data Involved: Hard Drives, Audio Recordings, Social Media Posts

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

FTC v. Noland (D. Ariz. Aug. 30, 2021)

Key Insight: The day after learning about the FTC’s investigation, defendant Noland instructed his team to use encrypted communications platforms, Signal and ProtonMail, turn on the “auto-delete” function, and to stop using their previous work-related messaging platforms. During depositions, Noland and others failed to disclose the use of encrypted communications platforms and deleted the encrypted messaging apps from the phones so that no communications could be retrieved. The court granted the FTC’s request for an adverse inference based on defendants’ intentional spoliation of evidence under FRCP 37(e)(2), finding the most decisive factor in its analysis was the timing of installation of the apps – just one day after Noland learned the FTC was investigating him. There was a coordinated effort among Noland and his leadership team to deprive the FTC of the use of the encrypted messages in the litigation – by installing the app, using the “auto-delete” function, failing to disclose the use of the app, and deleting the app the day before the phones were to be examined – resulting in an “outrageous maneuver that raises a strong inference of bad faith.”

Nature of Case: FTC, Pyramid schemes

Electronic Data Involved: Encrypted messaging platforms

Case Summary

Novit v. Metropolitan School District of Warren Township (S.D. Ind. 2021)

Key Insight: Plaintiffs filed a motion for sanctions on spoliation related to the video footage from a school bus where plaintiffs’ child suffered injuries. Defendant permitted plaintiffs to view the video of the incident and also produced the footage to plaintiffs in discovery. Plaintiffs later asked for extended video coverage from the date of the incident. Defendant did not have additional video because the bus hard drive had either been looped over, wiped clean, or used for parts. The court noted, “a spoliation sanction is proper only when a party has a duty to preserve evidence because he knew, or should have known, that litigation was imminent, and the movant demonstrates that the evidence was destroyed in bad faith, with the intent to deprive another party of the information’s use in the litigation.” Thus, the court found no evidence to support a blanket accusation of spoliation when defendant preserved the relevant footage, acted reasonably by saving the relevant portion, and placing the bus hard drive back into operation.

Nature of Case: Personal injury, Civil rights

Electronic Data Involved: Video footage

Case Summary

Maxus Liquidating Trust v. YPF (Bankr. D. Del 2021)

Key Insight: The parties had cross motions requesting the production of purportedly (attorney-client) privileged documents at the end of discovery; the Defendants had been producing documents on a categorical basis. The Court had previously issued three discovery opinions that denied the assertions of privilege by Defendant(s). Defendants failed to rebut an argument by Plaintiff (opposing party) that the documents sought were confidential, accordingly, the Court order them to be produced.

In a final argument, Defendants advocated for the requested documents being produced on a document-by-document basis. The Court rejected this given Defendants previous agreement to produce the documents on a categorical basis; the Court granted the Plaintiff’s request for the production of documents.

Considering Defendants’ Motion, the Court implied that it was hypocritical for Defendants to be seeking privileged documents from Plaintiff that were similar to the same documents that they argued against producing to Plaintiff on the basis of privilege. Regardless, the Court ordered Plaintiff to produce some the purportedly privileged documents sought by Defendant. The documents that the Court stated that Plaintiff need not produce were documents not publicly available from an investigation and the tangentially related bankruptcy case concerning Plaintiff.

Nature of Case: Adversarial Bankruptcy

Electronic Data Involved: N/A

Case Summary

Huntsman v. Southwest Airlines Co. (N.D. Cal. 2021)

Key Insight: The parties sought clarification on the scope of plaintiff’s discovery seeking documents relating to Southwest’s practices for verifying military leave. Defendant objected to the discovery requests on the basis of relevance, scope and proportionality, but agreed to conduct a phased search of its custodians’ data for responsive documents. The court agreed with defendant that the requests as written were overbroad given that the certified class was focused on an alleged failure to pay for short-term leave and plaintiff was not entitled to all potential USERRA violations. “Southwest’s approach to using keyword searches and technology-assisted review in tandem does not offend the court’s expectation that the parties conduct a reasonable inquiry as required by the rules.”

Nature of Case: Class action under USERRA

Electronic Data Involved: Email

Case Summary

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