Electronic Discovery Law – Page 7 – Legal issues, news and best practices relating to the discovery of electronically stored information.

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

Aug 10 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

Manning v. Safelite Fulfillment, Inc. (D.N.J. 2021)

Aug 08 2021

Key Insight: Defendants filed a motion for spoliation sanctions under FRCP 37(e) based on plaintiff’s deletion of certain Facebook messages and emails. Plaintiff claimed he deleted the messages to free up memory on his mobile phone. The court adopted the magistrate judge’s report and recommendations, finding plaintiff’s failure to preserve certain ESI caused prejudice to defendants warranting relief, but did not conclude that plaintiff did so with an intent to deprive defendants the use of the information in litigation. Plaintiff had an obligation to preserve the ESI; he deleted certain messages after he filed his lawsuit; and took no affirmative measures to preserve the ESI despite a duty to do so. The court allowed the introduction of a jury question on the destruction of some of the ESI evidence but reserved ruling on harsher sanctions.

Nature of Case: Employment discrimination

Electronic Data Involved: Facebook, Email

Case Summary

Hinrichs v. Allstate Insurance Co. (W.D. Wash. July 20, 2021)

Jul 20 2021

Key Insight: Defendant sought discovery of plaintiff’s social media, e-mails and text messages, and recommended an e-discovery vendor to search and collect the ESI, at defendant’s expense. The court granted the motion, finding the requests are not overly broad since plaintiff placed her lifestyle and activities prior to the accident directly at issue by claiming that her prior activities far exceed what she can do now. There is no burden to plaintiff since defendant has offered to hire an e-discovery vendor to access and retrieve the data. Any privacy issues can be addressed pursuant to a stipulated protective order.

Nature of Case: Personal injury – insurance bad faith

Electronic Data Involved: Social Media, Email, Text Messages

Case Summary

Axis Insurance Company v. American Specialty Insurance & Risk Services, Inc. (N.D. Ind. 2021)

Key Insight:

Plaintiff’s Motion to Compel sought missing documents and communications from, and the correction of metadata “issues” from Defendant and its parent company (via third party subpoena), and sought an award of attorney’s fees and costs. The Court partially granted the Motion, requiring Defendant to produce responsive communications and documents in its possession, and to conduct a search for such documents and communications, and provide an affidavit detailing the steps it took to search for said items.

The Court granted Plaintiff’s Motion to Compel insofar as it sought the metadata of documents responsive to its initial requests for production. Regarding the third party subpoena to Defendant’s parent company, the Court found that the office of the parent company subject to the subpoena was outside of the Court’s jurisdiction and consequently, denied Plaintiff’s Motion insofar as it sought to enforce the subpoena. Finally, Court awarded Plaintiff fees and costs regarding the missing documents, but not the “issues” with metadata.

Nature of Case: Breach of Contract

Electronic Data Involved: Emails, Metadata, PDFs

Case Summary

Doe v. Purdue University (N.D. Ind. July 2, 2021)

Jul 07 2021

Key Insight: Defendants filed a motion for spoliation of evidence and sanctions after plaintiff failed to provide Snapchat data consistent with the parties’ joint stipulation and prior court orders, and deleted certain Snapchat files that were subject to the stipulation and orders. Plaintiff admitted he had deleted some files from his “memories” folder in Snapchat, but claimed they were irrelevant, and he did so to free up memory on his phone. The court found plaintiff was under a duty to preserve the Snapchat data and he breached that duty when he destroyed the data. Without the deleted files and believing plaintiff’s claim that he deleted the files to free up space and memory on his phone, the court could not find that plaintiff did so with the purpose of hiding adverse information and declined to dismiss plaintiff’s complaint. The court imposed monetary sanctions and ordered plaintiff to pay defendants’ attorney’s fees and costs associated with litigating the motion, and allowed defendants to introduce a limited jury instruction regarding the destruction of ESI.

Nature of Case: Civil Rights

Electronic Data Involved: Snapchat data

Case Summary

Federal Trade Commission v. American Screening, LLC (E.D. Mo. 2021)

Jul 07 2021

Key Insight: Plaintiff filed a Motion to Compel Defendants to produce internal emails in litigation over false advertising and the FTC Act; Defendants had previously objected to Plaintiff’s discovery requests without disclosing if responsive materials were withheld on the basis of their objections. Defendants responded that use of 58 search terms provided by Plaintiff yielded over 7,000,000 results, and that Plaintiff’s request(s) were overbroad, irrelevant, vague, ambiguous and burdensome. The Court rejects these assertions, granting Plaintiff’s Motion and holding that Defendants must search for and produce the information sought by Plaintiff.

Nature of Case: Antitrust, False Advertising, Consumer Protection

Electronic Data Involved: Email

Case Summary

Krishnan v. Cambia Health Solutions, Inc. (W.D. Wash. 2021)

Jun 23 2021

Key Insight: Defendant cannot be compelled to produce text messages from employees’ personal cell phones because they did not have possession, custody, or control of the devices. An employer has possession, custody, or control of a cell phone when the employer issued the cell phone, the cell phone is used for business purposes, and the employer has a legal right to obtain communications from the cell phone.

An email does not become privileged simply by including counsel as a recipient to an email. If the email was not sent with the purpose of obtaining legal advice, it is not privileged.

An independent forensic examination of electronic devices for electronic communications is appropriate when a party intentionally delays or withholds relevant and discoverable communications.

Nature of Case: Wrongful Termination, Employment Law

Electronic Data Involved: Text Messages, Email

Case Summary

Cody v. City of St. Louis (E.D. Mo. 2021)

Jun 16 2021

Key Insight: After changing counsel, plaintiff sought an order compelling the defendant to reproduce prior ESI productions and to produce all future ESI productions in either native format or accompanied by metadata identifying the custodians, recipient, and date of the document. In denying plaintiff’s motion to compel, the court noted the parties “could and should have reached agreement on the format of ESI production in the nearly three years the case was pending” and plaintiff never requested a specific format previously, and also produced ESI to defendant in non-native format without metadata. Nothing in Rule 34(b) nor the Advisory Committee Notes indicates whether metadata must be produced to be considered reasonably usable. Thus, “absent a specific request to the contrary or special circumstances not at issue here, courts regularly find that searchable PDF documents constitute a reasonably usable form.”

Nature of Case: Civil Rights

Electronic Data Involved: PDF Documents

Case Summary

Allen v. PPE Casino Resorts Maryland, LLC (D. Md. 2021)

Jun 14 2021

Key Insight: Plaintiffs sought a protective order to prevent defendant from obtaining ESI from five different social media platforms they were active on. The court found that while a plaintiff’s social media postings could be relevant to a claim for “garden variety” emotional distress damages, some caution was necessary, such that a “deeper dive” into social media postings may be justified only in cases involving “severe and specific emotional distress” allegations. Since plaintiff alleged “garden variety” emotional distress stemming from defendant’s allegedly wrongful conduct, the discovery must be narrowed as follows: “specific references to serious, non-transient emotional distress in connection with the incidents described in their Complaint,” i.e., diagnosable conditions, visits to professionals for treatment of distress, treatment regimens and conversations regarding same; time frame limited from date contained in complaint of onset of difficulties to the date of filing of complaint; production limited to information found in a typical download of data from plaintiffs’ own accounts and plaintiffs “need not engage in extraordinary efforts in obtaining responsive information.”

Nature of Case: Employment discrimination

Electronic Data Involved: Social media posts

Case Summary

Oro BRC4, LLC v. Silvertree Apartments, Nos. 2:19-cv-4907, 2:19-cv-5087 (S.D. Ohio, June 10, 2021).

Key Insight: Plaintiff sought a motion for spoliation sanctions based on defendant’s failure to prepare its Rule 30(b)(6) deponent to testify on topics related to ESI preservation and collection, and for spoliation sanctions related to the failure to preserve ESI. The court granted sanctions for defendant’s failure to prepare its 30(b)(6) designee, finding: “The production of an unprepared witness is tantamount to a failure to appear, and warrants the imposition of sanctions.” Defendant offered its head of IT as the corporate designee. He received the deposition notice less than 72 hours before the deposition, spent about 6 hours preparing to testify (approximately 10 minutes per topic), did not review any documents other than his own emails, and did not speak or communicate with other employees to gather information on the topics he was supposed to testify about. The court ordered a second 30(b)(6) deposition, required defendant to pay the reasonable costs and expenses associated with attending the second deposition and fees for plaintiff’s ESI consultant to attend, and awarded fees associated with having to bring the motion to compel. On the issue of failure to preserve ESI evidence, the court concluded it was premature to address this issue until the second 30(b)(6) deposition, which would cover topics relating to defendant’s litigation hold efforts.

Nature of Case: Breach of contract

Electronic Data Involved: ESI business documents and electronic devices

Case Summary