Proportionality – Page 18 – Electronic Discovery Law

Wai Feng Trading Co. v. Quick Fitting, Inc., Nos. 13-33S, 13-56S, 2016 WL 4184014 (D.R.I. June 14, 2016)

Dec 01 2016

Key Insight: Following several extensions of discovery, court addressed motion to compel production of documents and email in native format and, noting that a particular format was not requested and that the parties? had consistently produced documents in hard copy or in searchable PDF format, found that only two documents ?arguably might contain metadata that could be relevant? and ordered that those documents be produced, but shifted the costs to the requesting party

Nature of Case: Theft of intellectual property, breach of contract

Electronic Data Involved: Emails, database, ESI

Wagoner v. Lewis Gale Med. Ctr., LLC, No. 7:15cv570, 2016 WL 3893135 (W.D. Va. July 13, 2016)

Dec 01 2016

Key Insight: Court granted motion to compel additional searching of Defendant?s computer systems and declined to order cost shifting despite Defendant?s claim that its inability to conduct a global search of its systems and resulting need to rely on a vendor rendered the search disproportional to the needs of the case where the court reasoned that Defendant had not carried its burden to show the information was inaccessible (?i.e., must be restored, de-fragmented, or reconstructed) and instead relied upon the expense of contracting with an outside vendor and that the necessary expense was the result of Defendant?s choice to use a system that did not preserve emails in a readily searchable format; ?Proportionality consists of more than whether the particular discovery method is expensive.?

Nature of Case: Employment litigation

Electronic Data Involved: ESI, including email

Duhigg v. Goodwill Indus., No. 8:15CV91, 2016 WL 4991480 (D. Neb. Sept. 16, 2016)

Dec 01 2016

Key Insight: Court denied Plaintiff?s motion to compel the production of emails containing Plaintiff?s name as a search hit and granted in part Defendant?s motion for a protective order where Defendant established that the emails were not reasonably accessible in light of the time and minimum costs of production, estimated at $45,825, and where the court also found they were not proportional to the needs of the case; although the court found Plaintiff?s proposed terms overbroad (her name) the court disagreed with Defendant?s time limitation on its own search for emails where prior discriminatory acts, even if not actionable, could be used as background evidence and ordered the parties to meet and confer regarding appropriate search terms to be used to search the accounts of 3 custodians over a 4 year period

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Shaffer v. Gaither, No. 5:14-cv-00106-MOC-DSC (W.D.N.C. Sept. 1, 2016)

Dec 01 2016

Key Insight: Court found dismissal was a disproportionate sanction for failure to preserve text messages lost when phone was dropped and broken but did conclude that Plaintiff and her counsel failed to take ?reasonable steps to preserve? those texts which resided only on Plaintiff?s phone, reasoning that ?[o]nce it is clear that a litigant has ESI that is relevant to reasonably anticipated litigation, steps should be taken to preserve that material, such as printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one?; court indicated defendant would be free to examine witnesses who had read the texts and explore the circumstances surrounding their destruction and further indicated that the court had not ruled out a spoliation instruction, an option reserved until after the court heard the evidence at trial

Nature of Case: Employment litigation

Electronic Data Involved: Explicit text messages

Alaska Elec. Pension Fund v. Bank of Am. Corp., No. 14-CV-7126 (JMF), 2016 WL 6779901 (S.D.N.Y. Nov. 16, 2016)

Dec 01 2016

Key Insight: Plaintiffs? broad request for documents previously produced by Defendants in prior investigations or produced to or received from any government agency, regulator, department, etc. related to the issues in the current investigation failed to withstand scrutiny to establish relevance beyond merely ?bear[ing] on? the issues in the investigation, particularly where Plaintiffs failed to point to any specific information that that would be found solely in the unproduced documents and not in the 1.5 million documents Defendants did produce from prior investigations (?At bottom, then, Plaintiffs? entire relevancy argument hinges on a general contention that every communication and work product related to the regulatory investigations is ?likely? to contain additional relevant information. But that sort of conclusory claim is insufficient to support such an expansive discovery request.?); court also concluded that the requested discovery was not proportional, but denied the motion without prejudice, allowing plaintiff an opportunity to renew their motion with ?narrower, more proper discovery requests.?

Nature of Case: Conspiracy to manipulate ISDAfix rates (government investigation)

Electronic Data Involved: ESI previously produced to government, all documents sent to/received from government related to issues in underlying investigation (including correspondence, subpoenas, CIDs, etc.)

In re Disposable Contact Lens AntiTrust Litig., No. 3:15-md-2626-J-20JRK, 2016 WL 6518660 (M.D. Fla. Nov. 1, 2016)

Dec 01 2016

Key Insight: Where the ?potential relevance? of the information sought was ?essentially undisputed,? but where Defendant claimed to have already spent $700,000 on discovery and that the request for 18 additional custodians could result in an expenditure of at least $1.5 million, court noted that the parties? dispute was essentially a question of proportionality and concluded a that two additional ?upper-management custodians? were warranted (as opposed to the seven requested) and also found that a sample of four sales manages was appropriate (as opposed to the eleven requested); as to Class Plaintiffs? request for a ?hit list? generated by applying the agreed-upon search terms to the collected materials, the court reasoned that in light of the number of custodians and the parties? agreement as to search terms, such a list seemed ?less valuable that it might otherwise be,? but ordered that if one was automatically generated, it should be produced

Nature of Case: Class Action

Electronic Data Involved: Additional Custodians

Boyington v Percheron Field Servs., LLC, No. 3:14-CV-90, 2016 WL 6068813 (W.D. Pa. Oct. 14, 2016)

Dec 01 2016

Key Insight: Plaintiffs sought to compel production of all emails sent to or from any of the Plaintiffs through a Percheron account. The Court found the emails were relevant because they may shed light on informal work policies, hours worked, and serve as a potential cross-reference to the other records kept by Defendant. Analyzing proportionality, the Court concluded that the importance of the issues (to the Plaintiffs), the amount in controversy (alleged to be ?in excess of several million dollars?), the resources of the parties, the parties? relative access to the information and the importance of the discovery in resolving the issues weighed in favor of Plaintiffs/production. Regarding whether the burden of discovery outweighed the benefit, the Court acknowledged Defendant?s claim that the review ?would likely cost $735,000-$798,964 and take a team of 20 attorneys 12 weeks to complete,? but reasoned that the Court?s refusal to compel production of certain email categories would lessen the estimated costs and that Defendant?s inability to provide certain data had caused Plaintiffs to have to ?puzzle together damages? and concluded that the request did not ?run afoul? of proportionality. The court also relied on Defendants prior agreement to produce the emails. Addressing Plaintiffs? motion to compel information regarding Defendant?s preservation efforts, the court ordered production of the names of those that received litigation holds and related information, but declined to order the litigation holds themselves.

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: Emails, Information re: litigation hold notices

Westmoreland v. Wells Fargo Bank Nw., N.A., No. 1:15-cv-00312-CWD, 2016 WL 6471433 (D. Idaho Oct. 31, 2016)

Dec 01 2016

Key Insight: Defendant sought to compel the return of Plaintiff?s company-issued laptop in order to obtain its contents; production of all emails sent by Plaintiff?s counsel to a joint email account shared by Plaintiff and her husband; as well as an additional search of Plaintiff?s Facebook account. Because it became clear that neither party had accessed the laptop during the litigation but that both parties were interested in its contents, the Court ordered that imaging and retrieval would be conducted by an agreed upon third party but, recognizing Defendant?s security concerns, allowed a representative to be present for the process. The Court denied Defendant?s motion to compel production of emails that Plaintiff?s counsel sent to a joint email account accessible by both Plaintiff and her husband, indicating that Defendant had not shown that Plaintiff waived attorney-client privilege regarding the communications with her counsel by having the emails sent to a shared email account and citing marital privilege. The Court denied the motion requesting a third search of Plaintiff?s Facebook messages, indicating that the messages produced to date were satisfactory and that the time and cost of an additional search was not ?proportional to the needs of this litigation.?

Nature of Case: Employment discrimination

Electronic Data Involved: Company-issued laptop, emails, social media (social network)

Carlson v. Jarousek, No. 2-15-1248, 20167243557 (Ill. App. Ct. Dec. 21, 2016)

Dec 01 2016

Key Insight: In personal injury case, the trial court abused its discretion by ordering forensic imaging of ALL of Plaintiff?s devices, including his work computer which was owned by his employer, where, among other things, the appellate court determined that such a request ran ?counter to the traditional protocol of discovery, in which one party requests specific information and the other party searches its own files (and computers) to identify and produce responsive information?; where the computer was not directly involved in the cause of action; where there was no evidence of prior discovery violations; and where ?careful consideration of relevance and proportionality reveal[ed] that forensic imaging was not justified in this case? including because there were ?ample? alternative avenues for discovery (e.g, requests for admission, depositions) and because much of the information sought fell within the categories of ESI identified in Illinois to be presumptively not discoverable; the court also addressed Plaintiff?s privacy concerns

Nature of Case: Personal injury (appeal)

Electronic Data Involved: Forensic imaging of computers (including work computer)

Yeti Coolers, LLC v. RTIC Coolers, LLC, No. A-15-CV-597-RP, 2016 WL 6916944 (W.D. Tex. Nov. 11, 2016)

Dec 01 2016

Key Insight: Where Defendant resisted searching certain emails arguing undue burden and that it was unlikely that responsive emails would be found but where no evidence of burden was submitted, where not even a cursory search of the emails was undertaken and where there were examples of the sorts of email sought produced from other employees, the court ordered Defendant to conduct the requested search; similarly, where Defendant offered no evidence of the alleged burden to review and produce the at-issue call recordings, where Plaintiff offered to bear the full cost of transcribing the messages, and where the court determined that the likelihood that the calls would be privileged was low, the court ordered Defendant to produce the raw audiofiles of its customer service calls and voicemail; notably, at the outset of its analysis the court noted that at least 10 attorneys had appeared for each party and that it was ?apparent that the issues at stake are significant,? including posing an ?existential risk? to Defendant and therefore concluded that ?any proportionality argument has a high bar to clear to be successful?

Nature of Case: Trademark infringement

Electronic Data Involved: Customer service emails, call recordings

Tag:Proportionality