Electronic Discovery Law

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

1
Lake v. Charlotte County Board of County Commisioners (M.D. Fla. 2021)
2
Haywood v. Wexford Health Sources, Inc. (N.D. Ill. 2021)
3
AnywhereCommerce, Inc. v. Ingenico, Inc. (D. Mass. 2021)
4
In re: CCA Recordings 2255 Litigation v. United States of America (D. Kan. 2021)
5
FTC v. Vyera Pharms., LLC (S.D.N.Y. June 1, 2021)
6
Maurer v. Sysco Albany, LLC (N.D.N.Y. 2021)
7
Aviles v. S&P Global, Inc. (S.D.N.Y. 2021)
8
D’Agostin v. Fitness Int’l, LLC (D. Conn. May, 12, 2021)
9
Bursztein v. Best Buy (S.D.N.Y. 2021)
10
Boegh v. Harless (W.D. Ky. 2021)

Lake v. Charlotte County Board of County Commisioners (M.D. Fla. 2021)

Key Insight: Communications between a party and its hired legal consultant are work product if they are generated in anticipation of litigation. Work product containing mental impressions, conclusions, opinions, or legal theories concerning the litigation is rarely discoverable and enjoy “near absolute immunity.” Documents subpoenaed from the legal consultant still retain work product privilege.

Instead of providing privilege logs, the court allowed the legal consultants to categorically withhold or redact privileged communications so long as they provided a certification that none of withheld or redacted documents were distributed to or reviewed by any other third parties. In lieu of such certification, the legal consultants would have to produce a privilege log.

Nature of Case: Property, Eminent Domain

Electronic Data Involved: Email, Electronic Communications

Case Summary

AnywhereCommerce, Inc. v. Ingenico, Inc. (D. Mass. 2021)

Key Insight: The court granted reconsideration of plaintiffs’ motion to compel discovery of documents in the possession of a corporate defendant in France. In a prior order, the court found that the GDPR did not preclude the court from ordering defendants to produce evidence, but based the order on plaintiffs’ representation that much of the requested information was located in the U.S. and therefore in the possession of domestic defendants. Thus, the court bifurcated its analysis to exclude any documents in the possession of French defendants. On reconsideration, plaintiffs claimed the important and relevant documents were located in France. Applying the factors from Restatement (Third) of Foreign Relations Law § 442(1)(c), the court found they weighed in favor of disclosure, together with the entry of a protective order that would protect France’s interests under the GDPR.

Nature of Case: Breach of contract

Electronic Data Involved: ESI generally

Case Summary

FTC v. Vyera Pharms., LLC (S.D.N.Y. June 1, 2021)

Key Insight: Vyera’s company policy was to issue employees iPhones that were backed up through iCloud but one executive, Mithani, whose conduct was central to the government’s antitrust claims, had requested and received a Blackberry as his company phone, which had no systemic back up of text communications. Despite being under an obligation to preserve evidence, the executive confirmed deleting texts on his work and personal mobile phones before and after receiving a hold notice from Vyera, and wiped his work phone upon leaving the company. A forensic expert confirmed no data could be retrieved or restored from the Blackberry. The court concluded Vyera’s conduct constituted spoliation and warranted sanctions as plaintiffs were prejudiced by Vyera’s conduct and the former executive acted intentionally to deprive plaintiffs of discoverable information. The court declined to adopt an adverse inference sanction and instead adopted Vyera’s proposed sanction that it be precluded from calling the former employee to testify in its defense or introducing into evidence documents that he authored.

Nature of Case: Antitrust

Electronic Data Involved: Text messages

Case Summary

Maurer v. Sysco Albany, LLC (N.D.N.Y. 2021)

Key Insight: Plaintiff’s Motion to Compel Defendants to produce electronically stored information responsive to specific keyword searches as well as predictive coding. Defendants opposed the Motion on the basis that the information sought was overbroad, and not proportional or relevant to the litigation. Defendants proposed their own electronically stored information “search protocol”.

The Court partially granted Plaintiff’s Motion, allowing specific keyword searches and search methods requested by Plaintiff. Notably, the Court granted Plaintiff’s request to utilize predictive coding in the search for electronically stored information.

Nature of Case: Wrongful Termination, Disability Discrimination

Electronic Data Involved: Electronic Documents, Emails,

Case Summary

Aviles v. S&P Global, Inc. (S.D.N.Y. 2021)

Key Insight: Plaintiffs filed a Motion to Compel to allow them unfettered access to all information located on a server. Defendant objected, claiming that Plaintiffs had no legal right to the server, and information on the server was irrelevant, confidential and/or privileged. The Court found that the request (Motion to Compel) was overbroad and premature, and denied Plaintiffs’ Motion.

Nature of Case:Fraud, Shareholder Suit, Diversity Jurisdiction

Electronic Data Involved: Hard Drive, Server,

Case Summary

D’Agostin v. Fitness Int’l, LLC (D. Conn. May, 12, 2021)

Key Insight: The scope of discovery for Plaintiff is limited to requesting information regarding accidents involving falls in locker rooms with tile surfaces in Defendant’s facilities that occurred up to five years prior to the accident giving rise to litigation. Allowing Plaintiff to expand the scope to any tiled floor(s) within Defendant’s facilities would move discovery beyond the focal point of litigation.

Nature of Case: Premises Liability

Electronic Data Involved: N/A

Case Summary

Bursztein v. Best Buy (S.D.N.Y. 2021)

Key Insight:

Plaintiff moved to sanction Defendant for failure to comply with discovery obligations and spoliation of evidence in personal injury and premises liability litigation. The discovery requests that led to Plaintiff’s Motion were for video surveillance of, and facilities records and training manuals related to the “slip and fall” incident at issue in the litigation; the Defendant did not fully respond to the requests, and failed to preserve electronically stored information (ESI) relating to the incident.

The Court partially granted Plaintiff’s Motion for Sanctions, allowing Plaintiff to present evidence at trial regarding Plaintiff’s spoliation of the ESI, and awarding attorney’s fees and costs incurred in briefing the Motion. The Court found that the Defendant failed to preserve the surveillance footage as well as entries in its Facilities Request System. Moreover, the Defendant failed to produce the above mentioned facilities records and training manuals.

Nature of Case: Personal Injury, Premises Liability

Electronic Data Involved: Surveillance Video, Facilities Request System (Database)

Case Summary

Boegh v. Harless (W.D. Ky. 2021)

Key Insight: The pro se plaintiff was ordered to produce social media (Facebook) content relating to the events at issue in the amended complaint. Based on his public Facebook posts, plaintiff commented extensively on the case and identified evidence and witnesses. Plaintiff argued that defendants already had the information from the public posts, but the court found there is a strong indication plaintiff was withholding relevant and discoverable evidence that was private in his account.

Nature of Case: Civil rights – personal injury

Electronic Data Involved: Social media

Case Summary

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