Discovery Spotlight 2016

Onward and upward .... 

11/17/16:  $25M Worth of Spoliation.  An order issued in BMG Rights Management LLC v. Cox Comm's, Civil No. 1:14-cv-1611 (E.D. Va. Nov. 9, 2016), raised our eyebrows.  The order entered final judgment on a jury award of $25M.  In BMG, the owner of multiple music recording copyrights sued an internet service provider for allowing infringement to occur on its network.  (BMG at 1.)  Adding a layer of complexity to the case, Plaintiff's allegations rested upon the work of a third party it had hired to identify potential instances of infringement via Defendant's service.  (Id. at 2.)  This copyright policing was performed with proprietary software.  (Id. at 2-3.)

The software deployed by Plaintiff's third party service provider was front and center in a spoliation claim made by Defendant.  As noted in a previous order, the service provider failed to utilize version control to record changes to its software over time, leaving the court without a proper historical record of the source code during the time period applicable to the suit.  (BMG Rights Management LLC v. Cox Comm's, Civil No. 1:14-cv-1611 (E.D. Va. Aug. 8, 2016) at 14.)  Despite a Magistrate Judge's finding that Plaintiff's service provider intentionally destroyed material information, the trial court did not dismiss the case, opting instead to let Defendant address spoliation in its opening statement and to provide a "weaker" jury instruction than the Magistrate Judge had recommended.  (Id. at 34, 41-44.) 

The trial court justified its handling of the spoliation issue by saying that tougher e-discovery sanction rules had gone into effect only the day the trial started.  (Id. at 42.)  It also said that lesser measures were more appropriate in this instance, and that dismissal would have been too harsh a punishment.  (Id. at 42-43.)

While we respect the prerogative of a trial judge not to implement a Magistrate Judge's recommendations, the result here has the feel of an athlete receiving only a short suspension for using performance-enhancing drugs.  In this case, Plaintiff won a $25M jury verdict!  So sometimes it's a fine line between "Let the punishment fit the crime," and "The punishment is worth the crime." 

10/20/16:  Step up to the Scale.  OK, so multi-factor balancing tests aren't the most scintillating things in the world.  But they are important, right?  In First Niagara Risk Management, Inc. v. Folino, 2016 WL 4247654 (E.D. Pa. Aug. 11, 2016), the court faced a close call on whether or not to grant Plaintiff's motion to compel a search of Defendant's electronic devices.  (First Niagara at 1, 5.)  The resulting opinion is a textbook application of multiple factors around proportionality to resolve a discovery dispute.

In this breach of contract and breach of fiduciary duty case, Plaintiff sought to force a search of Defendant's ESI to discover documents relating to Plaintiff's discovery requests.  (Id. at 1, 5-6.)  The court considered and resolved each of the following factors below in granting Plaintiff's motion to compel. 

  • Importance of issues -- for Plaintiff, having allegedly discovered a plan by a key employee to launch a directly competing business;
  • Amount in controversy -- for Defendant, as amount is unknown;
  • Parties' relative access to ESI -- for Plaintiff, since only Defendant had access to his own ESI;
  • Parties' resources -- for Neither, as both had enough resources;
  • Importance of discovery to resolve issues -- for Plaintiff, due to the need for broad discovery to uncover the scope of Defendant's behavior; and
  • Burden/expense of discovery vs benefit -- for Plaintiff, because its benefit is higher than Defendant's burden and cost.  Id. at 8-9. 

The score here?  Plaintiff 4, Defendant 1 (and one "push").  The motion was granted, with Defendant being required to allow a technology vendor to apply keyword searches to his electronic devices.  (Id. at 1, 10, 14.)

Some factors weigh more heavily than others in any given case, of course.  But this tally is a clean, simple way of visualizing the guts of the court's decision.  We also like to see a judge making clear that their deliberative process applies to all factors on the list, not simply considering the expense -- as too often seems to happen.

09/15/16:  Pay to Play? (Up Front!)  Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB, 2016 WL 4061575 (W.D. Wash. July 29, 2016) is a dispute about the medical facility privileges of Plaintiff, a physician.  During the discovery phase of this litigation, the court considered Plaintiff's motion to compel Defendant to produce additional documents.  (Elkharwily at 1-2.)  Dr. Elkharwily had previously obtained producible emails found on the active email server maintained by Defendant, and he now sought archived emails and text messages as well.  (Id. at 2.)

Defendant objected to Plaintiff's request as overbroad and unduly burdensome.  (Id. at 2.)  Also, Defendant stated that it had no email archiving system to search, and that any additional email productions would therefore require the restoration of backup tapes, on which emails were saved every 30 days.  (Id. at 3.)  The estimated price tag for retrieving, restoring and reviewing all backup tapes in question?  Over $150,000.  (Id.)

The parties seemed to agree that the emails were not readily accessible and would be costly to restore.  (Id. at 5.)  The court found that Plaintiff failed to show good cause under FRCP 26 for Defendant to pay for the restoration and production of the tapes.  (Id. at 5-6.)  However, stating that the archived emails were discoverable, the court ordered Defendant to restore and produce them upon Plaintiff's request -- with the condition that Plaintiff pay the retrieval and restoration costs in advance (though not the costs for the privilege review).  (Id. at 6.)

One issue the court does not evaluate fully is Plaintiff's claim that Defendant should have preserved the emails in question in an accessible format instead of saving them to backup tapes as usual.  (See Id. at 3, 5-6.)  This preservation argument failed to impress the court, given some conflicting evidence from earlier in the proceedings regarding Plaintiff's intention to file a lawsuit or not.  (Id. at 6.)  With a less ambiguous record of the communications between Plaintiff and Defendant, however, we think this argument may have gone the other way .... 

08/18/16:  TAR Or Else?  In Hyles v. New York City, 10 Civ. 3119 (AT) (AJP) (S.D.N.Y. Aug. 1, 2016), predictive coding champion M.J. Peck addresses whether or not a party requesting discovery may force the responding party to use predictive coding technology.  (Hyles at 1.)  In the course of litigating this workplace discrimination and hostile environment case, the parties reach an impasse on how Defendant should identify responsive documents, with Plaintiff asserting that predictive coding should be deployed while Defendant prefers to use a keyword search protocol.  (Id. at 3.)  Enter M.J. Peck ....

Predictive coding battle lines are often drawn with producing parties wanting to use the technology and requesting parties resisting it.  This is particularly true in asymmetric discovery scenarios such as the one in Hyles, where plaintiffs may try to force defendants to incur high costs to review and produce large volumes of ESI.  But not here -- the shoes are on the other feet, with Plaintiff seeking TAR and Defendant standing by an old school keyword search methodology.  (Id. at 3-5.)

M.J. Peck believes Plaintiff has it right here, and makes clear that the Court would like to see Defendant using TAR for reasons of cost control, efficiency and consistency.  (Id. at 3-6.)  However, he defers to Sedona Principle 6, which states that a responding party is best situated to decide how to preserve and produce its own ESI.  (Id. at 4-5.)  Accordingly, the Court holds that cooperation principles do not enable a requesting party or a court to force a responding party to use predictive coding technology.  (Id. at 4.)

Despite displaying exemplary judicial restraint here, we think M.J. Peck would have liked to force Defendant to use TAR.  Defendant should beware the Court's warning that if Plaintiff later shows there are deficiencies in the document production, Defendant may have to re-do its search.  (Id. at 5.)  And we all should beware M.J. Peck's parting assertion that the day may come when it is considered unreasonable not to use predictive coding ....  (Id. at 6.)

07/21/16:  At Work & At Home.  Sunderland v. Suffolk County, No. CV 13-4838, 2016 WL 3264169 (E.D.N.Y. June 14, 2016) is a civil rights case brought by a prison inmate.  (Sunderland at 1-2.)  The plaintiff alleges constitutional rights violations by Suffolk County and five individual physician defendants in connection with the medical care that was provided to Plaintiff.  (Id.)

During earlier discovery proceedings, the parties agreed to search terms for Defendants to run across their data sources, and to a time frame within which all searchable emails fell.  (Id. at 3.)  The parties disagreed, however, on whether or not home computers and personal emails were subject to discovery obligations.  (Id.)

The Magistrate Judge ruled that because the defendants had been sued in their individual capacities, they had to include home computers and personal email accounts in their searches.  (Id. at 3-4.)  The fact that the County was representing the physicians did not matter.  (Id.)  The court pointed out that any documents found on the doctors' home computers and in personal email accounts might show bias or a culpable state of mind in support of Plaintiff's allegations.  (Id. at 5.)

Finally, the court noted several factors that indicate the ruling may apply narrowly to a scenario like the one in Sunderland:

  • Previous agreement by parties on search terms;
  • Previous agreement by parties on time frame;
  • No forensic inspection of computers requested; and
  • No undue burden on individual defendants to comply.  (Id.)

So it goes to show that you can take your work home with you, and your work may follow you home as well ....

06/16/16.  Predictive Coding across the Pond.  Ever wonder what our friends in the UK are doing when they're not making the queue or using the loo?  Well, until recently, not using predictive coding technology.  But as usual, "The times, they are a-changin' ...."

In February of 2016, for the first time, a British court approved the use of predictive coding.  Pyrrho Investments Ltd. v MWB Property Ltd., EWHC 256 (Ch) (2016).  In addition to relying on an Irish case and the Da Silva Moore case from the Southern District of New York -- consider this our "Thanks, old chap" for hooking us up with the common law system to start with -- the judge cites a number of familiar reasons for approving the use of predictive coding in this case.  (Pyrrho at Point 33.)  Included on the list is the fact that the parties agreed to use predictive coding, and appeared to have come to the court with a stipulated protocol.  (Id.)

This month, we have news that the English have taken the next step down the Technology Aided Review garden path.  Apparently, a court has just approved the use of predictive coding in a case despite the objections of at least one of the parties involved.  According to a legal publication, the British firm Berwin Leighton Paisner has obtained that ruling on behalf of its client.  Details to follow once the court's order has been made public, but suffice it to say that the enhanced use of technology to facilitate document review is going global.

Final word to the wise -- remember to say "e-disclosure," not "e-discovery," if you should find yourself in an English court.  Cheerio!

05/19/16.  Guilty feet have got no rhythm ....  Wow, does it get much better than a chance to quote George Michael?  Not for us.

By now, it's conventional wisdom to be very careful about what you post on social media.  Yet despite all the sophistication that a modern, technological age confers upon us, conventional wisdom often fails to translate into common sense.

Rhone v. Schneider Nat. Carriers, Inc., 2016 WL 1594453 (E.D.Mo. Apr. 21, 2016) is a personal injury case involving a car crash, where Plaintiff alleged serious permanent injuries.  (Rhone at 1-2.)  In response to discovery requests for relevant social media postings and photos, Plaintiff claimed there were none -- despite Defendant's assertion that its independent investigation had in fact revealed just such potentially relevant materials on social media.  (Id. at 3-4.)

The court found that Plaintiff did not adequately respond to the requests for social media, failing even to disclose the existence of such accounts at all, initially.  (Id. at 4-5.)  Plaintiff was ordered to respond to discovery in several ways, including providing a copy of Facebook's "Download Your Info" report covering the time period in question.  (Id. at 5.)

All fine and well, but on to the fun stuff.  What's the real point here?  No doubt, an undying passion for the integrity of the discovery process.  Oh, we also suspect it may have had something to do with apparent social media evidence of Plaintiff dancing -- specifically, twerking -- after the alleged injuries were sustained.  (Id. at 5, 7-8.)  If twerking is new to you, that's why you have the internet.  And let us know if you think twerking like a rock star is consistent with the severe and permanent neck, back and spine injuries claimed by Plaintiff.  (See id. at 1.)

The cameras are always rolling.  The web is forever.  Discuss ....

04/21/16.  No Texts?  No Worries.  (THIS Time....)  In Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., 2016 WL1105297 (S.D. Fla. Mar. 22, 2016), Plaintiff failed in its motion for sanctions against an individual defendant who allowed his relevant text messages to be deleted.  (Living Color at 14.)  Wait, whaaat?  Read on to find out why.

Plaintiff requested sanctions, including a default judgment, alleging Defendant knowingly destroyed relevant text messages.  (Id. at 2.)  To his credit, Defendant admitted he neglected to disable his cell phone's 30-day auto-delete function at the outset of the litigation.  (Id. at 4, 6.)

Citing FRCP 37, the court stated that sanctions were unavailable as to the "great majority" of the text messages, because they were not actually lost -- but rather were provided by other parties.  (Id. at 9-10.)  As to the small number of texts that were not available elsewhere, the court invoked FRCP 37(e)(1)'s provisions about judicial discretion to find little or no prejudice to Plaintiff, and ruled that spoliation sanctions were thus not justified.  (Id. at 10-12.)

The rub here?  The eternal inability to prove a negative.  It's a tough burden for any party seeking sanctions to prove that ESI which has, shall we say, ceased to be, would have made a big difference to its case.  No dice here, anyway....

03/17/16:  Search Term Showdown.  Ah, good old search terms.  Predictive coding and Technology Aided Review ("TAR") tools continue to gain traction as document review strategies in cases with large, un-culled data sources.  But applying agreed-upon search terms to data sets to isolate smaller groups of potentially relevant documents can still be the best way to go in many other proceedings.

In Gardner v. Continental Cas. Co., 2016 WL 155002 (D. Conn. Jan. 1, 2016), the parties stipulated to search terms that resulted in the identification of 38,000 documents, from which Defendant produced only about 2,000 pages.  (Gardner at 3.)  Plaintiff cried foul, asserting that Defendant had both failed to produce relevant materials and over-redacted some of the documents that were produced.  (Id.)

Specifically, Plaintiff claimed that the point of negotiating search terms in the first place was to avoid disputes over relevance; while Defendant countered that it had the right to remove and redact irrelevant and privileged information.  (Id. at 3-4.)

The judge issued an order siding with Defendant in theory, stating that not all 38,000 documents had to be produced.  (Id. at 4.)  However, in practice, the judge validated Plaintiff's concerns, agreeing Defendant had failed to produce "obviously relevant " documents received by Plaintiff from a third party to the litigation.  (Id.)  So the judge's order (i) instructed the parties to collaborate on sampling or quick peek strategies to come together on appropriate production parameters; and (ii) required Defendant to submit un-redacted versions of selected documents to the court for determinations about the validity of the redactions that Defendant had applied to those documents.  (Id. at 4-5.)

As usual, the judge giveth and she taketh away.... 

02/18/16:  Amendments Have Consequences ....  The first effects of the 12/01/15 amendments to the FRCP are already being felt.  Today we call your attention to two applications of the amended version of Rule 37(e).

In CAT3, LLC v. Black Lineage, Inc., 2016 WL 154116 (S.D.N.Y. Jan. 12, 2016), the Magistrate Judge issued an order finding the amended version of Rule 37(e) justified sanctions where there was evidence that Plaintiffs had altered certain emails before producing them -- for the purpose of gaining an advantage in the proceedings.  (CAT3 at 1-2.)  After a lengthy discussion of the mechanics of Plaintiff's manipulations of the emails, the court precluded Plaintiffs from relying on the versions of the emails favorable to their case, and awarded costs to Defendants as well.  (Id. at 28-29.)  Included in the order is a good, thorough discussion of Rule 37(e) before and after the amendments.  (Id. at 11-15.)


For a ruling that went the other way, take a look at Nuvasive, Inc. v. Madsen Med. Inc., 2016 WL 305096 (S.D. Cal. Jan. 26, 2016).  The judge granted a motion for reconsideration of a previous spoliation finding in the case.  (Nuvasive at 1-2.)  Defendant's motion for an adverse inference had originally been granted because of Plaintiff's failure to preserve certain text messages.  (Id. at 3.)  Under 37(e) as amended, however, the court ruled that Plaintiffs' behavior did not rise to the level of intent required for sanctions.  (Id. at 3-8.)  As in the CAT3 case, the Nuvasive court provides a helpful "before and after" analysis of Rule 37(e) as far as spoliation sanctions are concerned.  (Id.)


These orders are two early indicators that the FRCP amendments of 2015 will have significant impacts on current and future cases.  Stay tuned!

01/21/16:  The 4-1-1 on Information Governance.  Heard of "Information Governance?"  It's fast become an industry buzzword, but what does it mean?  "It goes beyond Records Management," in that Records Management is the operational process for dealing with records on the ground, while Information Governance is the framework for structuring and managing all information, including the policies and procedures themselves for managing information at the enterprise level. (The IG Initiative Definition of Information Governance, Iron Mountain (Dec. 23, 2015).)  Beyond determining a record's retention schedule and disposition, Information Governance addresses how information is categorized, accessed, protected, migrated, etc.  (Data Analytics in the Legal Community: 2015-2016 Trends, CTRL Initiative (Oct. 30, 2015).)  As one blogger puts it, "Traditional records management provides an occasional road sign on the information highway, whereas information governance is the all-encompassing rules of the road."  (Lance Stukaloff, Unfair Fight: Records Management vs. Information Governance, ZLog (Apr. 29, 2015).)

What do these rules say?  Broadly, that information must be managed regardless of format and lifecycle.  (Id.)  In yesteryear, just making sure a hard copy landed in a file sufficed.  Today, information is too complex and variegated to manage only at the time of creation and disposal.  The definition of "records" now encompasses emails, text messages, metadata, social media, etc. -- many important records never take physical shape and form.  Also, the more complex our records become, the greater the need to consider how and where information is organized.  This is especially critical in light of data privacy issues that have surfaced over the past decade.  Information Governance provides strategies for dealing with information as it exists at any given time. (Id.)

For any business, a strong Information Governance program depends on developing a set of core principles outlining desired behaviors or outcomes.  Outside consultants can help with defining and implementing a program.  Core principles could range from the goal of educating all employees on their duties and responsibilities to securing client and firm confidential or personally identifiable information.  (A Proposed Law Firm Information Governance Framework, Iron Mountain (May 22, 2012).) This might necessitate creating a cross-departmental team tasked with deciding what the principles should be and determining what procedures should be implemented to put those principles into practice.  (Id.)

Priorities differ depending on the type of entity involved.  Priorities are likely to include increasing general awareness of Information Governance and ensuring data and information security.  (Id.)  The move to Information Governance requires a shift in culture, and such a shift can begin with baby steps.

Toward this end, don't give up on those stacks of paper lying around your office.  You have to start somewhere, and it makes perfect sense to tackle low-hanging fruit first.  So bring on the banker boxes and legal hold bins -- you need to keep obeying the highway signs as you master the rules of the road....

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