Rachel Tausend, a partner of the K&L Gates e-Discovery Analysis & Technology (“e-DAT”) Group and the firm’s Seattle office, and Krysta Slavik, an e-DAT Group Solutions Analyst based in Pittsburgh, will attend the ILTACON Annual Conference 2023, which begins this Sunday.. Both Rachel and Krysta will participate in panel discussions at the conference, which features a wealth of programs, educational content, and networking opportunities for the legal leaders, managers, professionals, and technologists in attendance.Read More
Focusing on procedural rules and case law particular to Washington, Julie Anne Halter (Partner and e-DAT Practice Group Co-Chair) and Bree Kelly (e-DAT Senior Staff Lawyer) provide practical guidance for the state’s legal practitioners on each step of the e-discovery process in their recent LexisNexis Practice Note.Read More
Key Insight: The discovery dispute involved whether defendants are obligated to produce screenshots of certain computer generated reports from defendants’ computer program known as Salesforce. Salesforce maintains and memorializes various performance metrics of individual account executives. Plaintiff generated and printed some of her own performance metrics and seeks in discovery the same reports for certain other defendant employees for purposes of comparison. Defendants assert that the reports are not free-standing, fixed reports but are screenshots of the Salesforce dashboard and they cannot generate reports but can only provide her with the underlying historical data in Excel, which they already provided. The court affirmed the magistrate judge’s opinion, ruling that whether Salesforce is incapable of generating and printing the reports as they maintain it is would need to be determined by a Rule 30(b)(6) deposition. The functionality of the Salesforce data is the core issue in the motion and the court reiterated the magistrate’s sentiments that until the deposition is completed, the nature of the Salesforce program and its capabilities are unknown.
Nature of Case: Employment Discrimination
Electronic Data Involved: Screenshots
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
Key Insight: Plaintiff filed a motion to compel and for sanctions against defendants, claiming the defendants’ production of ESI relating to the treatment of plaintiff’s mental illness was produced in PDF as opposed to its native Excel format and not reasonably usable. The court granted plaintiff’s motion to compel, ordering defendants to produce the ESI in their native Excel format and awarded plaintiff’s counsel $25,000 in fees. The court rejected defendants’ argument that it converted the Excel data into PDF because it was required under HIPAA and Illinois law given the protective order in place. The court further found the ESI in PDF form was not “reasonably usable” under Rule 34(b). There is missing data and text, and it eliminated plaintiff’s ability to sort and organize the data contained in the spreadsheets. Quoting another court’s decision, the court noted: “One of the unique strengths of Excel software is the ability to implement calculations and formulae that are not evident in a PDF version[.]” This forced plaintiff to sort more than 270,000 pages of information, much of which is either redacted or difficult to read.
Nature of Case: Prisoner Civil Rights
Electronic Data Involved: Prisoner Records
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
Key Insight: Defendant asked the court to compel plaintiff to search its computers and servers for responsive documents and contended certain documents should exist and have not yet been produced. The court noted “Rule 34 is silent as to how a party must locate these responsive documents, and the measures a party must take in conducting its search.” Further, defendants offered no case law that would require plaintiff to search a location it had no reason to believe responsive documents would be located. Absent any factual basis to believe that additional search of plaintiff’s server is necessary or to rebut plaintiff’s sworn testimony that there are no relevant, non-duplicative documents stored there that have not already been produced, no further search was ordered and sanctions were not appropriate.
Nature of Case: Breach of contract
Electronic Data Involved: Email
Key Insight: Plaintiff was discovered to have fabricated emails. Court awarded over $500,000 in damages to Defendant.
Nature of Case: antitrust litigation
Electronic Data Involved: Emails
Keywords: sanctions,m fabricated evidence