Electronic Discovery Bulletin February 2016

The following is a compendium of articles and case law that may be of interest to our AG offices that are dealing with electronic discovery issues. Neither the National Association of Attorneys General nor the National Attorneys General Training & Research Institute expresses a view neither as to the accuracy of the articles nor as to the position expounded by the authors of the hyperlinked articles.

Survey: Judges Lack Confidence in Lawyers’ E-Discovery Knowledge

Federal judges say the average attorney appearing before them lacks the legal and technical expertise to advise clients on e-discovery, according to the 2016 Federal Judges Survey conducted by e-discovery software company Exterro. The survey highlights the expectation gap between what judges expect in the e-discovery process and what attorneys think is appropriate, as denoted in the way responding judges and attorneys answered the same survey question. The survey was based on the responses of 14 federal judges and 22 attorneys who specialize in e-discovery. The survey may be accessed at http://www.exterro.com/judges-survey-16/. (Access to the survey is free, but contact information must be provided).

LegalTech New York 2016: Trends and Topics

This year’s LegalTech New York trade show featured more than 175 exhibitors providing information on products and services, as well as many ediscovery sessions. The Association of Certified E-Discovery Specialists (ACEDS) summarized several of the trends and topics discussed during the e-discovery sessions, and their article can be accessed at http://www.aceds.org/at-legaltech-2016-lawyers-grapple-with-new-challenges/.

Podcast on E-Discovery Technology Available

This free podcast features an interview with Joe Bartolo of Kierstad Systems and covers several topics, including the automation trend within the eDiscovery industry, a discussion of the four generations of eDiscovery technology, the emergence of software as a service (SaaS) providers, requirements for a complete eDiscovery solution and industry resources. The podcast may be accessed at http://www.complexdiscovery.com/info/2016/01/29/thoughts-on-ediscovery-aceds-podcast-woth-joe-bartolo-and-brad-schaffel.

Case Law: Bank Examiner Privilege

In Wal-Mart Puerto Rico, Inc. v. Zaragoza-Gomez, 2016 U.S. Dist. LEXIS 7732 (D.P.R. January 21, 2016) [case no. 15-cv-3018], the U.S. District Court for the District of Puerto Rico granted Wal-Mart Puerto Rico’s (“Wal-Mart’s”) motion to compel discovery from third party Government Development Bank of Puerto Rico (“the GDB”) pursuant to their subpoena. Wal-Mart had sued the Commonwealth of Puerto Rico, challenging their new tax law as discriminatory and unconstitutional and sought the results of the most recent examination of GBD’s financial condition. GBD opposed the motion, arguing among other grounds that the documents were protected from disclosure by the bank examiner’s privilege. The district court noted that the First Circuit has not yet interpreted the privilege, and in other circuits it was a qualified, rather than absolute, privilege subject to a finding of good cause. The court determined that all factors of its balancing test weighed in favor of a good-cause disclosure of the discovery to Wal-Mart, granting the motion to compel and finding the bank-examiner privilege neither justified, nor excused, a refusal to comply with the subpoena.

Ed. Note: In response to a request from our colleagues, we will seek to provide the Westlaw cite or, alternatively, the case number, in addition to the Lexis citation.

E-Discovery “Gotchas” and Remedies

This blog article lists five e-discovery pitfalls and discusses how they could be avoided. The pitfalls addressed are: 1) no e-discovery plan; 2) stale litigation holds; 3) self-collection; 4) re-collection in serial litigation; and 5) over-inclusive search terms. The blog may be accessed at http://www.insidecounsel.com/2016/01/25/e-discovery-gotchas-5-e-discovery.html.

Case Law: Attorney Work Product Doctrine

In Federal Trade Commission v. Staples, Inc., 2016 U.S. Dist. LEXIS 8556 (D.D.C. Jan. 21, 2016) [case no. 15-2115], The U.S. District Court for the District of Columbia denied a motion by Staples and Office Depot to compel production of information collected by the Federal Trade Commission (“FTC”) from third parties during the course of their investigations. The FTC had filed an administrative complaint (under seal) to block the merger of Staples and Office Depot on antitrust grounds, and Staples and Office Depot sought 850 documents relating to its investigation of the proposed merger as well as the 2013 investigation of the Office Depot-Office Max merger. The FTC had argued that the documents were attorney notes and internal memoranda privileged under the attorney work-product doctrine. The court’s decision resulted from an in camera review.

Case Law: Public Official’s Private Emails Subject to Disclosure

In Shane v. Parish of Jefferson, 2015 La. LEXIS 2549 (Dec. 8, 2015) [case no. 2014-C-2225], the Louisiana Supreme Court reversed the Court of Appeals, holding that a public official’s private emails sent on his public agency’s computer are subject to disclosure under the state Public Records Act when those emails have been used in audits of the public agency. William Shane, a private citizen, had an email conversation about Jefferson Parish politics with the executive director of JEDCO, a Parish government agency, who used his office computer and email system in the exchange. During JEDCO’s annual external audit, auditors found instances of improper use of JEDCO’s email system by employees to engage in political campaign activities. A follow-up internal audit found that the executive director had spent a significant amount of public time in allegedly improper political activities. The Times-Picayune filed a public records request with JEDCO for the emails, and JEDCO denied the request, stating that the emails had “no relation to the public business of JEDCO” and were exempt from disclosure under the state’s constitutional right to privacy. Shane sued to prevent the disclosure of the emails, and a district court concluded the emails were public records, but that Shane’s privacy interests required the Parish to redact his personal identifying information before release. The Court of Appeals reversed, holding the emails were not public records.

Case Law: Defendant Not Entitled to Post-Accident Facebook Postings

In Forman v. Henkin, 22 N.Y.S. 3d 178 (December 17, 2015), a New York appellate court modified a lower court’s order in a personal injury case, ruling the plaintiff was not required to produce private photographs posted after the accident nor provide access to private postings made post-accident. Kelly Forman alleged she was injured while riding one of Mark Henkin’s horses. During discovery, Henkin moved for, and was granted, an order compelling Forman to provide an authorization granting him access to her Facebook account. The order directed Forman to produce: 1) all photographs posted prior to the accident that Forman intended to use at trial; 2) all photographs posted after the accident; and 3) an authorization for records of private messages posted after the accident. The appellate court reversed on 2) and 3) above, finding that Henkin’s discovery requests were speculative, and ruling the mere fact that Forman used her Facebook account was an insufficient basis to provide Henkin with access to the account.

Federal Courts Apply New FRCP Amendments

As expected, federal courts have moved quickly to embrace the 2015 FRCP amendments, in some cases reversing their decision on an issue. One such case was Nuvasive, Inc. v. Madsen Medical, Inc., 2016 U.S. Dist. LEXIS 8997 (S.D. Cal. Jan. 26, 2016) [2016 WL 305096]. The court had granted Madsen Medical’s (“Madsen’s”) motion for adverse inference sanctions for Nuvasive’s failure to preserve text messages from four key custodians. Nuvasive then filed a Rule 60(b) motion for an order vacating the court’s order on spoliation sanctions based on the new amendments; Madsen opposed the relief, arguing there was no alternative that would remedy the prejudice caused by the destruction of evidence. The court noted it was clear that an adverse inference instruction was not permissible without a finding of intent, and the court was also not convinced there was any prejudice to Madsen. The court granted the motion, but ruled it would allow the parties to present evidence to the jury regarding the loss of ESI and the likely relevance of that ESI, and the court would instruct the jury that it could consider that evidence along with all of the other evidence in the case.


Hedda Litwin is the Editor of E-Discovery Bulletin and may be reached at 202-326-6022. The E-Discovery Bulletin is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail hlitwin@naag.org.

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