Electronic Discovery Bulletin July 2017

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.

  • EDiscovery services provider XDD released a new practice guide on conducting effective custodian interviews that can be downloaded at no cost after providing contact information.

  • A one-hour webinar on how analytics can boost productivity is offered by ACEDS on August 24, 2017 at 1 pm ET (12 noon CT, 11 am MT, 10 am PT). The webinar is free, but registration is required.

  • There is some confusion among eDiscovery software users about versions of Summation software, or “old Summation” vs. “new Summation.” An article by Brett Burney seeks to review both the history of Summation software and its outlook for the future.

  • Does an employer have a duty to preserve ESI related to a lawsuit that has been saved in an employee’s personal cloud storage account? Chad Main of Percipient found it depends on the court and the employer’s rights to the information, with two main views:

o Some courts find the employer has a duty to preserve the data if the employer has a “practical ability” to obtain the information, although the Sedona Commentary on Possession, Custody and Control points out that such as test could obligate parties to produce documents in violation of non-disclosure agreements or even if the seeking party has no legal right to them. See Selectica, Inc. v. Novatus, Inc.

o A few opinions find that employers have no such duty as employers generally have no legal rights in employees’ personal email accounts. See Matthew Enterprise, inc. v. Chrysler Group, Inc.

Recent eDiscovery Court Decisions

  • In Storey v. Effingham County, the U.S. District Court for the Southern District of Georgia sanctioned the County for failure to preserve a video from the county jail surveillance system, finding the County had notice that litigation was a distinct possibility and should have known the video would be required.

  • In Wiedeman v. Canal Insurance Co., the U.S. District Court for the Northern District of Georgia denied plaintiff’s motion for sanctions, ruling that allegedly spoliated evidence must be in the possession, custody or control of the party accused, and in the instant case, defendant no longer had access when the data was overwritten.

  • In PolyOne Corp. v. Lu,, the U.S. District Court for the Northern District of Illinois denied defendants’ motion to compel search terms related to plaintiff’s discussions about the competing product, finding only an attenuated connection between defendants’ counterclaims and the proffered sample.

  • In Mirmina v. Genpact, LLC, the U.S. District Court for the District of Connecticut denied in part and granted in part plaintiff’s motion to compel, admonishing the parties for not having come to an agreement “long ago” in keeping with the court’s Initial Discovery Protocol.

  • In Bailey v. Brookdale University Hospital Medical Ctr., the U.S. District Court for the Eastern District of New York concluded that although the data was not inaccessible, cost shifting was appropriate because it appeared that plaintiff’s counsel had not engaged in a meaningful meet and confer concerning the agreement proposed by defendant’s counsel nor had counsel thoroughly reviewed the agreement prior to signing it.

  • In Brown v. Certain Underwriters at Lloyds, London, the U.S. District Court for the Eastern District of Pennsylvania found that plaintiff had spoliated cell phone evidence in bad faith and imposed an adverse inference instruction, also ordering plaintiff to pay fees and costs associated with the spoliation motion and those incurred in obtaining the records from the cellular carrier.

  • In Jenkins v. Anton, the U.S. District Court for the Middle District of Florida denied plaintiff’s motion for a new trial, ruling that even if email spoliation had been proven, there was no evidence to believe the trial would have a different outcome.

  • In Eschelman v. Puma Biotechnology, Inc., the U.S. District Court for the Eastern District of North Carolina denied plaintiff’s motion for an order permitting a jury instruction regarding defendant’s failure to preserve web browser history because plaintiff failed to establish that the lost information could not be restored or replaced through additional discovery or that the failure to preserve was prejudicial or intentional.

  • In U.S. Commodity Futures Trading Commission v. Gramalegui, the U.S. District Court for the District of Colorado, finding pervasive bad faith and intentional discovery abuses on defendant’s part, ordered that the 2500 emails defendant produced at the close of discovery could be used for any purpose at trial.

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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