Electronic Discovery Law – Page 9 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Hall v. Marriott Int’l, Inc. (S.D. Cal. 2021)

May 12 2021

Key Insight: This is a putative consumer class action alleging that defendant engaged in false and deceptive advertising in the way it represents the prices for its hotel rooms, services, and amenities. The court granted plaintiff’s motion to compel, finding that the revenue data sought by plaintiffs was relevant to damages—in how damages will be ascertained and how a damages model will be provided. Additionally, discovery regarding the fees charged (including: destination, amenity, resort, destination amenity fee, wi-fi, parking, and other fees) were relevant to understand the nature of the fees and the relationship to defendant’s revenues and determine the scope of the case for settlement discussions. The court also ordered defendant to obtain the requested revenue data from franchised hotels if it has a right to access the financial data through an audit or other contractual provision with the franchisee. Policies and procedures and consumer complaints relating to the charging of fees were also ordered to be produced.

Nature of Case: Consumer Class Action

Electronic Data Involved: Financial Data

Case Summary

In re Rail Freight Fuel Surcharge Antitrust Litig. (D.D.C. May 12, 2021)

May 12 2021

Key Insight: District court rejected, in part, plaintiffs’ request for new discovery of rail-freight transaction data from defendants, the four largest railroads operating in the Unites States. Plaintiffs alleged defendants engaged in a price-fixing conspiracy to increase the price of rail-freight transport from 2003 to 2008. The court granted the request to produce 2009 data as proportional because defendants already had access to the data. The court denied the request for 2010-2012 data, finding it was not proportional at that stage in the litigation. It was not connected to the central issue in the case as to whether defendants engaged in a price-fixing conspiracy, even though it might be relevant to certain plaintiffs’ calculation of full damages.

Nature of Case: Antitrust

Electronic Data Involved: Transaction Data

Case Summary

Healthedge Software, Inc. v. Sharp Health Plan (D. Mass. 2021)

Key Insight:

Defendant filed a Motion to Compel Plaintiff to produce documents, including source code, and Plaintiff filed a Motion to Compel Defendant to disclose how it collected and searched its electronically stored information (ESI). The Court granted Plaintiff’s Motion while partially granting Defendant’s Motion.

A significant issue in both Motions was the respective parties’ collection of ESI. The Court noted that the parties failed “to engage in cooperative planning regarding ESI”, and directed the parties to confer regarding custodians and search terms of ESI collection and review. In partially granting Defendant’s Motion, the Court directed Plaintiff to further articulate its objections, but stated that some of Defendant’s discovery requests were premature even if Plaintiff was obligated to respond to them by the close of discovery.

Nature of Case: Breach of Contract

Electronic Data Involved: Electronic Documents, Source Code

Case Summary

Martinez-Sanchez v. Anthony Vineyards, Inc. (E.D. Cal. Apr. 29, 2021)

Apr 29 2021

Key Insight: The burden of production and utility of the employee badge scans sought by plaintiffs outweighed the benefit to plaintiffs of analyzing the information because: (1) the timekeeping software did not have a reporting function for timestamps and collecting the information would require at least 22,000 hours of manual work; (2) the software only contained records for some months of 2019, less than a quarter of the four-year class period; and (3) the timestamps do not definitively establish the time at which the event happened. Plaintiffs were only entitled to the data in the form in which it is ordinarily maintained. Further, plaintiffs’ request for another copy of defendants’ payroll data would be needlessly cumulative as defendants had provided alternative solutions to plaintiffs’ data extraction and reporting issues. Lastly, although the magistrate judge’s order did not explicitly cite to Rule 26(b)(2), the court’s reasoning clearly fell under Rule 26(b)(2)(B), which permitted the court to deny the production of ESI where the information is “not reasonably accessible because of undue burden or cost” irrespective of whether the magistrate judge had analyzed all the proportionality factors contained in Rule 26(b)(1).

Nature of Case: Labor and Employment

Electronic Data Involved: Timekeeping Data

Case Summary

Matter of the Complaint of Paradise Family (M.D. Fla. 2021)

Apr 28 2021

Key Insight: Plaintiff’s social media account information (Facebook and Instagram) is relevant and proportional to his alleged damages for loss of the capacity to enjoy life. Social media is not privileged or protected by any right of privacy.

Nature of Case: Admiralty

Electronic Data Involved: Social Media

Case Summary

Hurley v. BMW of N. Am. LLC (E.D. Pa. Apr. 27, 2021)

Apr 27 2021

Key Insight: The three categories of documents sought by Plaintiff are relevant to the litigation. Further, production of the three categories of documents would not be disproportionate to the needs of the litigation. Production of the documents, which had already been digitized and indexed (and produced) for previous litigation, would be of little expense and/or burden to Defendant. The burden and/or expense of producing the documents do not outweigh the likely benefits of production.

Nature of Case: Product Defects

Electronic Data Involved: Digitized and indexed manuals and other documents

Case Summary

Edwards v. Junior State of Am. Found. (E.D. Tex. 2021)

Apr 23 2021

Key Insight: At issue were “racist and homophobic Facebook messages” one high school student allegedly sent to another high school student (plaintiff), both of whom were members of the defendant’s youth organization. Plaintiffs provided a partial .jpeg image (screenshot) of the alleged message and defendant requested additional ESI to authenticate the messages, namely HTML or JSON files, and associated metadata. Plaintiffs never objected to the discovery requests and failed to produce any documents for over a year. Plaintiffs then admitted through a digital forensics experts that the Facebook account had been permanently deleted and the native versions of the alleged messages had been destroyed. The court declined to dismiss the case under Rule 37(b)(2)(A) but applied Rule 37(e), finding that the native messages were relevant ESI and were deleted around the time plaintiffs had a duty to preserve them, and they could not be adequately replaced by the available screenshots. Therefore, plaintiffs would be precluded from offering any evidence about the alleged messages.

Nature of Case: Civil Rights

Electronic Data Involved: Facebook Messages

Case Su m mary

Lukis v. Whitepages Incorporated (N.D. Ill.)

Apr 23 2021

Key Insight: Plaintiff filed a Motion to Compel and to Extend Fact Discovery Deadline after Defendant refused to substantively respond to Plaintiff’s discovery requests. Similarly, Defendant also had filed Motion to Compel Plaintiff to respond to its discovery requests regarding online account information, social media and browser history. The Court granted Plaintiff’s Motion(s) and partially granted Defendant’s Motion to Compel. The fact discovery deadline in the matter was extended to approximately two months after the Court’s order(s).

Nature of Case: Class Action Lawsuit

Electronic Data Involved: Social Media, Online Account History, Privacy Settings on Websites, Internet Browser History

Case Summary

Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc. (W.D. Ky. 2021)

Apr 20 2021

Key Insight: The litigation was over a licensing agreement regarding the use of trademarks owned by Plaintiff on cigars. Plaintiff filed a Motion(s) for a Protective Order and to Compel. The Protective Order sought would to preclude deposition testimony regarding functionality. The Motion to Compel sought to compel Defendant to utilize a new search protocol to find requested information (and documents) and produce financial records.

Plaintiff’s Motion for a Protective Order was granted; its Motion to Compel was partially granted, requiring Defendant to produce financial records, and but denied insofar as it sought to compel Defendant to utilize new search terms to search for documents. Unreasonable delay by Plaintiff in raising the issue(s) of the new search terms and/or purportedly missing documents was a significant factor in the Court’s partial denial of Plaintiff’s Motion.

Nature of Case: Trademark Infringement

Electronic Data Involved: Financial Records, Electronic Documents

Case Summary

Lamaute v. Power (D.D.C. 2021)

Apr 18 2021

Key Insight: In using the proportionality test, each factor should be examined to balance the needs and rights of both parties and determine an appropriate resolution. When requests are overbroad and not proportional to the needs of the case, the court may limit the scope of the documents a party is required to produce.

Nature of Case: Employment Discrimination, Title VII

Electronic Data Involved: Electronic Documents Generally

Case Summary