Discovery Spotlight 2017

11/16/17:  Cooperate -- OR ELSE!  That seems pretty straightforward, and by now, gospel in the e-discovery world.  But some attorneys still have not gotten the proverbial memo.  U.S. v. New Mexico State Univ., 2017 WL 4386358 (D.N.M. Sept. 29, 2017), is a Title VII pay discrimination case.  (NMSU at 1.)  After protracted discovery disputes, Defendant filed for a Protective Order to avoid producing what Plaintiff had requested.  (Id. at 1-2.)

Plaintiff found Defendant's document productions were inadequate, while Defendant claimed Plaintiff's requests for additional keyword searches and productions were not proportional to the needs of the case.  (Id. at 3-4.)  Anyone out there surprised?  We thought not.

The court's view that Defendant failed to meet and confer adequately with Plaintiff while keyword searches were being run tipped the scales in favor of Plaintiff.  (Id. at 4.)  So, although Defendant had produced a significant number of documents, its failure to collaborate during the process led the court to step in to take over.  (Id.)

And take over with a vengeance.  We often see cases in which judges admonish one or both parties, and then send them back to the sandbox to play nicer.  But here, the court took up each of the disputed areas in turn, and dictated the granular search terms to be run by Defendant.  (Id. at 4-8.)  The only area where the court told Plaintiff and Defendant to work together was regarding one specific search, and only if the results were too voluminous.  (Id. at 5-6.)

If we've said it once, we've said it a thousand times, people -- hug it out and make it work!

10/19/17:  You Can Fight City Hall After All.  Mann v. City of Chicago, 2017 WL 3970592 (N.D. Ill. Sept. 8, 2017), concerns allegations of wrongdoing by Chicago police officers, including wrongful arrests, detentions and prosecution -- as well as abuse -- at an "off the books" detention center of the City's Police Department in Chicago's Homan Square area.  (Mann at 2.)  The parties agreed to cooperate on discovery, but could not agree on the list of custodians whose documents and emails should be searched for relevant materials to produce.  (Id.)

The crux of the dispute relates to the alleged burden of responding to the requests and the relevance and scope of the discovery.  Plaintiffs sought communications from Mayor Rahm Emanuel and ten of his staff members; Defendant felt the requests were too burdensome and that the custodians in question were unlikely to have documents relating to the policies and practices in question.  (Id.)

The communications sought by Plaintiffs related to the City's alleged role in the "notice, ratification, cover-up and deliberate indifference" to the behavior at issue in the lawsuit's causes of action.  (Id. at 5.)  These allegations included various violations of constitutional rights -- notable among them were the maintenance of an "off the books" police detention center, denial of access to counsel, coercive interrogations, and imprisonment without proper processing or charges for long periods of time.  (Id. at 5-6.)

While acknowledging Plaintiffs' burden of proof at trial would be high, the court found that the discovery requests were for relevant information and permissible at the current stage of the litigation.  (Id. at 5, 7.)  Stated succinctly, "Plaintiffs do not have to provide evidence of the Mayor's connection to Homan Square in order to get discovery potentially showing (or not) the Mayor's or his staffs' connection to Homan Square."  (Id. at 7.)

Fatal to the City's protestations about the burdens of time and cost imposed by the discovery requests?  Its failure to provide specific ideas, or even rough estimates, of those alleged burdens.  (Id. at 11-12.)  Therefore, the court ordered Defendant to search the email accounts of seven of the eleven custodians requested by Plaintiffs, including Mr. Mayor himself.  (Id. at 12-13.)

Looks like the Second City needs to take a second look at these requests.  Or start writing settlement checks ....

09/21/17:  What about Saving a Tree?  Ortega v. Management & Training Corp., NO. 16-cv-0665 MV/SMV, 2017 WL 3588818 (D.N.M. Jan. 1, 2017) is an employment matter in which Plaintiff tried to compel the production of documents in electronic format that Defendant had already produced in hard copy.  (Ortega at 1.)  Plaintiff's position was that, as to materials kept both in hard copy and electronically in the ordinary course of business, Defendant should produce them electronically.  (Id. at 2.)

Citing FRCP 34, the court found that Defendant need not produce documents in multiple formats.  (Id. at 3.)  Citing the same rule, the court also ruled that Defendant need only produce responsive materials in a "reasonably usable form ...."  (Id.)

Reading between the lines, we'd guess there was no e-discovery protocol agreed on and entered into by the parties.  Shoulda coulda woulda!

Also, the order in this dispute is a short one, and does not provide much detail on Plaintiff's legal arguments.  Nor does it discuss the reasons Plaintiff felt that an electronic production was necessary.  We can certainly think of reasons -- not the least of which is the potential value of metadata.  In a wrongful termination case such as Ortega, it might be very important to know the timing of certain revisions to multiple drafts of, say, an employee performance review.

Paper's fine as far as it goes, but that's not always far enough ....

08/17/17:  Trust without Verification?  In Mirmina v. Genpact LLC, 2017 WL 3189027 (D.Conn. July 27, 2017), the court denied Plaintiff's motion to compel Defendant to conduct additional searches for ESI, alleging that the initial searches failed to lead to the production of relevant documents.  (Mirmina at 1.)  Plaintiff's main argument -- unsupported by any case law citation -- was that defense counsel relied on an employee of Defendant directly involved in the underlying claims of the litigation to search her own emails.  (Id. at 2.)

Beyond citing no case law to support his position, Plaintiff did not allege any specific facts to cast doubt on the adequacy of Defendant's search for relevant documents.  (Id. at 2, 4-5.)  The court deemed the motion too speculative.  (Id. at 4-5.)  Also persuasive:  Defendant's in-house counsel clearly defined and supervised a process for the employee to follow in identifying relevant ESI.  (Id. at 3-4.)  The court found no reason to question Defendant's assertion that the process had been followed correctly and that all relevant documents had been identified and disclosed.  (Id. at 5.) 

We sympathize a bit with Plaintiff here.  There are times in e-discovery battles where you just know the other side has failed to produce something, and it's hard to prove the proverbial negative.  It's also thin comfort when a judge says to trust the good faith efforts of the other side without verifying compliance with their discovery obligations.  But in those situations, there's often a story to ferret out, through gaps in the email chains produced; an absence of documents from a certain date range; or evidence elsewhere in the record supporting the idea that not all documents were produced.  Perhaps Plaintiff's counsel can work along these lines to earn another bite at this apple .... 

07/20/17:  Default Settings -- Google to the Rescue?  Eshelman v. Puma Biotech., Inc., 2017 WL 2483800 (E.D.N.C. June 7, 2017), is a libel case involving allegedly defamatory material published by Defendant about Plaintiff, who was trying to join Defendant's Board of Directors.  (Eshelman at 2.)  Plaintiff sought an adverse jury instruction as a sanction for Defendant's failure to preserve its employees' internet browser and search histories, which Plaintiff deemed relevant to Defendant's alleged defamatory statements.  (Id. at 1, 5-6.)  At issue is an investor presentation published by Defendant to its shareholders to persuade them Plaintiff should not be allowed to join the board.  (Id. at 2-3.)

Defendant's litigation hold, issued two weeks after the complaint was filed, did not explicitly include browser histories, search histories or sites visited.  (Id. at 3-4, 12.)  Defendant had no formal destruction/retention policy, and the company's use of Google Chrome's default setting meant that these types of data were deleted automatically, every 90 days.  (Id. at 4.)  [Side Bar 1: A publicly traded biotech company sans formal destruction/retention policy?  Really?]

The court found that Plaintiff failed to establish that the ESI could not be restored or replaced through other means, e.g., by asking about it in depositions.  (Id. at 9-10.)  [Side Bar 2: This seems pretty flimsy to us.  It might be OK if not for the the empirically demonstrated tendencies of human beings to forget and/or lie about things.]  But fear not; the court went on to say that in any event, Plaintiff failed to establish (a) the prejudice of the missing information, making only a cursory statement that the ESI was very important; and (b) Defendant's intent to deprive Plaintiff of the evidence.  (Id. at 10-12.)

Calling Defendant's conduct negligent at worst, the court found no grounds for a sanction.  (Id. at 12.)  But Plaintiff did salvage a partial win.  The court granted its motion to compel related to requests for post-publication data on browser histories, search histories and sites visited by employees of Defendants.  (Id. at 14-17.)

Bottom line here is that it was OK to let the almighty Google default into killing browser and search history.  But if any compliance types are listening, you might want to consider lobbying for a more proactive approach to deletion policies ....

06/15/17:  Don’t Mess with Texas on ESI.  In re State Farm Lloyds, Relator, Nos. 15-0903, 15-0905, 2017 WL 2323099 (Tex. Mar. 26, 2017), is a rare e-discovery opinion from the Texas Supreme Court, consolidating two proceedings about the alleged underpayments on claims, to allow the court to clarify guidance on ESI-centric discovery proceedings.  (State Farm at 1.)  The dispute focuses on whether or not a document production should be made in native format, per the preference of the requesting party; or in searchable static format, which would be more convenient for the responding party in light of its data storage practices.  (Id. at 2.)

The court holds that neither party may dictate the form of discovery, but rather that a case-by-case determination must be made, depending on proportionality concerns and the inherent corresponding standards of reasonableness.  (Id.)  The factors courts must balance include a cost-benefit analysis of producing in the format requested; the amount in controversy; the parties' resources; the importance of the issues at stake; and the significance of the requested format in resolving contested issues.  (Id. at 3.)  Significantly, however, the court cites precedent to emphasize that responding parties "need only produce the data reasonably available in the ordinary course of business in reasonably usable form."  (Id. at 3-4.)

We will mercifully spare you a blow-by-blow recounting of State Farm's data archiving and storage practices.  Suffice it to say that for a number of the company's in-house applications, files are stored automatically as pdfs, tiffs and jpgs.  (Id. at 6.)  Applying the factors discussed above, the court decides not to require State Farm to reverse engineer its processes -- or scrap them in favor of new ones -- in the case at bar.  (Id. at 16-23.)  Rather, it sends the parties back to the trial court to make their cases in light of the new guidance.  (Id. at 29.)

Now, don't get us wrong -- we HEART a good multi-factor balancing test, be it on the issue of production format or whatever else.  That said, this opinion veers away from the position that metadata of producible documents are also presumptively producible, and as such, will provide relief to anyone responding to discovery deep in the heart of Texas ....

05/18/17:  TAR-able vs. Terrible.  What is TAR-able is captured succinctly in a recent order entered in FCA US, LLC v. Cummins, LLC, No. 16-12883 (E.D. Mich. Mar. 28, 2017).  This case concerns the division of financial liability for the cost of an automotive part recall.  (FCA US at 1.)  The issue that caught our attention is a court providing very clear guidance on how best to deploy TAR in the collection and culling of a large amount of ESI.

The court says that it enters the discovery dispute reluctantly, delivering the obligatory tongue-lashing to both parties for being unable to resolve the issue of incorporating TAR into their e-discovery protocol.  (Id. at 1-2.)  (As usual, why can't we all just get along?)  The crux of the dispute: Defendant's assertion that a pre-TAR culling of ESI with key words is appropriate vs. Plaintiff's position that data subject to TAR review should not be culled first by the use of search terms.  (Id.)

The judge sides with Plaintiff, citing his own research as well as soon-to-be published Sedona Conference guidance on TAR: "Applying TAR to the universe of electronic material before any keyword search reduces the universe of electronic material is the preferred method."  (Id. at 2.)  He goes on to express support for using search terms to cull the results obtained by TAR.  (Id.)  So, that's what is TAR-able.

Unfortunately, the FCA US judge does not provide details on the reason for his decision.  But it certainly matches both our own experience and the detailed explanations we've received from technical experts.  Without taking you to algorithm-land, we'll just say that what is terrible is using keywords to cull a raw dataset and then applying TAR to the resulting (smaller) universe of documents.  This approach puts the proverbial cart before the horse, and risks a defensibility attack on grounds that relevant documents failed to make it onto the review set.

A before B, as always ....

04/20/17:  Privileged Items on a Virtual Park Bench?  In Harleysville Ins. Co. v. Holding Funeral Home, Inc., No. 1:15cv00057 (W.D. Va. Feb. 9, 2017), the parent company of Nationwide (yes, the insurance company from the commercials) sued for a declaratory judgment that it did not owe money to Defendant for coverage on a fire loss claim.  (Harleysville at 1.)  The issues of interest to us -- an alleged privilege waiver and the ensuing effort to disqualify defendant's counsel -- have their roots in a Nationwide investigator's placement of a surveillance video on a publicly accessible file share site, a link for which was sent to an NGO focused on insurance crimes.  (Id. at 2.)

Although the email to the NGO included a boilerplate confidentiality notice, the link to the video was not password-protected, so anyone could have viewed the video by typing the file share site's url into the internet.  (Id.)  The investigator later also posted the entire claims and investigation files, for the insurance company's counsel to review.  (Id. at 3.)  Defense counsel gained access to all materials on the site through a subpoena served on the NGO, and reviewed them without telling the insurance company's attorneys, eventually even producing the video during discovery!  (Id. at 3-4.)

The insurance company moved to disqualify Defendant's attorneys when they refused to destroy the allegedly privileged materials they had viewed.  (Id. at 4.)  The court found the disclosure of materials to be inadvertent rather than involuntary under Virginia law, since it was made knowingly.  (Id. at 7.)  Next, applying a multi-factor balancing test, the court decided any privilege claim had been waived, citing a lack of reasonable precaution taken by the insurance company to protect the materials and a failure to take prompt measures once the disclosure was discovered.  (Id. at 8-10.)  The court even compared the online posting of the materials to leaving a box of documents on a park bench.  (Id. at 9.)

But Defendant did not get a total victory.  The court said that given the confidentiality notice, Defendant's attorneys should have known they were looking at potentially privileged materials and either alerted the insurance company's counsel or requested a court ruling.  (Id. at 16-17.)  So although the attorneys were not disqualified, Defendant had to pay the costs of both parties for the proceedings at hand.  (Id. at 17.)

So, remember, kiddies, play nice on the playground -- even when you play hard.

03/16/17:  Gotta Go Native.  Morgan Hill Concerned Parents Assoc. v. Calif. Dep't of Education, No. 2:11-cv-3471 KJM AC, 27 WL 445722 (E.D. Cal. Feb. 2, 2017), is about the state of California's alleged failure to provide appropriate public educations for disabled students.  (Morgan Hill at 1.)  We focus on a discovery dispute in which Plaintiffs sought to compel production of emails in native form, with metadata -- rather than in load file format, as Defendant had produced initially.  (Id. at 1-2.)

Summarizing the relevant points, the court makes clear that FRCP 34 allows parties to request the format of productions; that Plaintiffs did request documents in native format with all metadata; and that Defendant did not object at that time.  (Id. at 3.)  As part of its lengthy analysis of whether or not Defendant waived its right to object, the court cites a failure in the timeliness of the objection as well as unconvincing arguments about the alleged burdensome nature of the request and the irrelevance of metadata.  (Id. at 10-14.)

The court also touches on two other important topics.  First, it approves "ease of review" as an acceptable reason for a party to request a production in a certain format.  (Id. at 7.)  Also, the court takes Defendant to task for producing load files alone, as opposed to load files accompanied by an image production.  (Id. at 9.)

But what about privilege concerns?  The difficulty of avoiding producing privileged materials in a native production were foremost among Defendant's reasons for resisting a native production.  (Id. at 14.)  The court excoriates Defendant for repeatedly drafting inadequate privilege log entries that fail to provide even general information about the underlying documents to show they deserve protection.  (Id. at 14-18.)

The only silver lining for Defendant?  One more bite at the apple -- 30 days to produce the documents in native form, or submit a privilege log that passes the sniff test.  (Id. at 19.)  But that bite won't be cheap, as the court gives Plaintiffs' counsel the nod to seek attorney fees at local market rates for the costs associated with their successful motion.  (Id. at 19-20.)

02/16/17:  Everything but the Kitchen Sink.  Beware the fate of Defendants -- and defense counsel -- in Arrowhead Capital Finance, LTD v. Seven Arts Entertainment, Inc., Case 1:14-cv-06512-KPF, (S.D.N.Y. Sept. 16, 2016)!  This case rolls up numerous previous disputes between parties that stem from a default on a note by Defendants.  (Arrowhead at 1-10.)  Our interest is in the outrageous discovery behavior exhibited by Defendants, and the court's handling of said misdeeds.

Defendants emptied a whole bag of dirty discovery tricks -- failing to produce responsive doc's; producing oodles of non-responsive doc's; not making witnesses available for depo's; submitting laughably insufficient written responses to interrogatories; etc.  (Id. at 10-11.)  Defendants' attorney also admitted he had not read discovery responses although he signed off on them; and was facing criminal charges himself!  (Id. at 11-12.)  The judge established and oversaw a discovery plan to remedy the problems, including consideration of reported failures of Defendants' attorney and his subordinates.  (Id. at 11-18.)

One consequence of Defendants' discovery non-compliance was the judge's decision to forfeit Defendants' ability to contest personal jurisdiction in the case.  (Id. at 39-46.)  The court excoriated Defendants for their numerous and willful transgressions, stating: "Defendants' misconduct in this litigation is as deep as it is wide."  (Id. at 41.)  In addition to losing the chance to contest jurisdiction, Defendants were slammed with additional sanctions -- the judge ordered them to pay the costs incurred by Plaintiff because of the violations; and to engage a second attorney to handle all discovery going forward.  (Id. at 46-50.)

And the cherry on top?  The court found defense counsel in contempt of court for actions undertaken in bad faith during discovery, and ordered him to pay a portion of Plaintiff's costs.  (Id. at 50-53.)

As the old saying goes, one lies and the other swears to it.  And this time around, both pay for it ....

01/19/17:  You Had Your Chance!  A recent order in Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, WL 7208753 (W.D.N.Y. Dec. 13, 2016), provides a good example of a judge deciding that “enough is enough.”  In this software licensing dispute, Plaintiff sought to compel the production of source code that both Plaintiff and its expert witnesses had already inspected ... or at least had inspected the functional equivalent of the source code, with the opportunity to print it out.  (Armstrong Pump at 1-3.)

Plaintiff got no extra bite at the apple.  Not only did the court find the previous production sufficient, but it invoked the role of proportionality in the 2015 Amendments to FRCP 26, conflating “discovery overuse” and “diminishing returns” with proportionality.  (Id. at 7-8.)

Reading this order makes clear that the court considered the motion to compel the proverbial last straw: a thorough discussion of the parties’ six years worth of discovery is included to support the opinion.  ( 8-10.)  Notwithstanding the cumulative amount of discovery, the court does allow one last bit of discovery along narrow lines, ordering co-Defendant to search the source code folder for a few specific terms.  (Id. at 11-12.)


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