Electronic Discovery Bulletin June 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.

Predictive Coding Guide Available for Download

E-discovery provider Kroll Ontrack released Mastering Predictive Coding: The Ultimate Guide, which addresses issues of implementation, training and defensibility in using technology-assisted review. The guide can be downloaded at no cost after providing your contact information at http://www.ediscovery.com/predictive-coding-guide/.

Tips on E-Discovery Collection From Lotus Notes

John Martin, CEO of e-discovery provider Beyond Recognition, offers some suggestions for collecting Lotus Notes (now IBM Notes) emails and attachments. He suggestions that ediscovery practitioners will want to validate their productions and those from opposing parties. The article can be accessed at http://beyondrecognition.net/conducting-e-discovery-from-lotus-notes/.

Thoughts on What Constitutes a “Proportional” Document Request

This article discusses how courts are incorporating proportionality principles and applying greater scrutiny to discovery requests that might have been allowed before the 2015 FRCP amendments went into effect. The discussion uses two cases as illustrations: Gilead Sciences, Inc. v. Merck & Co., no. 5:13-cv-04057 (N.D. Cal. Jan. 13, 2016) and Moore v. Lowe’s Home Centers, LLC, no. 14-1459 (W.D. Wash. Feb. 19, 2016). The article may be accessed at https://percipient.co/whats-proportional-document-request-nowadays/.

An Expert’s Advice: Increasing the Pace of E-Discovery Pays Benefits

Brad Harris of e-discovery provider Zapproved Inc. makes the case in this article that accelerating the pace of e-discovery can improve early case assessment workflows and eliminate a good deal of stress at trial. His comments may be accessed at http://www.jdsupra.com/legalnews/why-speed-matters-in-determining-your-e-54725/.

Case Law: Failure to Disclose Server

In Rosehoff, Ltd. v. Truscott Terrace Holdings, LLC, no. 14-2775 (W.D.N.Y. May 10, 2016), Rosehoff sought a declaratory judgment annuling property rights that Truscott Terrace Holdings (“Truscott”) asserted in Cataclean, an automotive fuel additive which purported to enhance engine performance. During discovery, Rosehoff sought emails relevant to its claims and, when Truscott failed to fully respond, moved to compel. The motion was granted; Rosehoff again moved to compel; and Truscott again failed to produce responsive emails, but asserted that it was withdrawing specified property claims in Cataclean. Rosehoff responded that the requested emails were still relevant to the remaining claims. The court again granted the motion to compel, and ordered Truscott to produce not only the emails, but also affidavits describing the computers and storage devices used to create and store emails and other documents during the relevant period, or if those devices were destroyed, the circumstances surrounding their destruction. The court also ordered Truscott to show cause why it should not be ordered to pay Rosehoff’s expenses for bringing the motions, and asking how to apportion them between Truscott and its counsel. Truscott opposed the sanctions, arguing their withdrawal of several claims sufficed. The affidavits showed that potentially responsive documents were transferred between multiple computers, which were also shared between Truscott and their bookkeeper. The affidavits also revealed there was a previously undisclosed host server for certain emails. Although Truscott eventually provided the emails, the court found it did not comply with its discovery obligations, and its withdrawal of some claims did not moot Rosehoff’s requests. The court found no justification for Truscott’s failure to disclose the server and search for responsive emails. Therefore, the court found sanctions were warranted and ordered Rosehoff’s attorneys’ fees be paid equally by Truscott and its counsel.

Case Law: Request to Include Additional Custodians

In Family Wireless #1, LLC v. Automative Technologies, Inc., no. 15-01310 (D. Conn. May 19, 2016), Family Wireless #1, a franchisee, sued their franchisor, Automotive Technologies, for breach of contract, unjust trade practices, misrepresentation and unjust enrichment. The parties met and conferred and agreed to search the ESI of seven custodians. However, the plaintiff wanted to include six additional custodians, arguing that although lower level employees, they were involved in decisions and daily operations. Defendant countered that their ESI would be duplicative, since a large amount of ESI was already produced, and additional searches would be unduly burdensome. Defendant produced a test search of two proposed custodians that yielded 51,583 email “hits,” arguing it would require hours of costly review. The court was not persuaded that the additional custodians would be unduly burdensome, as defendant had previously acknowledged the use of limiting search parameters and deduplication. The court was also not persuaded by defendant’s relevance argument, noting the argument that many documents have already been produced was not sufficient to establish that there was no additional relevant ESI. However, the court found that the plaintiff had shown good cause for including only three of the additional custodians, and granted in part plaintiff’s motion as to searching three additional custodians.

Case Law: Inadequate Showing That Native Production Cost-Prohibitive

In Mitchell v. Reliable Security, LLC, no. 1:15-cv-03814 (N.D. Ga. May 23, 2016), an employment discrimination case, the parties’ dispute centered around whether ESI should be produced in native or PDF format. Defendant claimed it would cost $3,000 more to produce the estimated three GB of ESI in native format, comprised of a flat rate of $2,000 for processing and production, plus $1,000 in hourly paralegal time ($150/hr.) to manage the production of native emails and Excel spreadsheets. Defendant further argued that the damages at issue were likely less than $10,000, making the additional cost of native production unreasonable. Plaintiff countered that because defendant claimed it did not assign her shifts due to lack of shift availability rather than her pregnancy, the emails and spreadsheets supporting their claim were susceptible to manipulation, and therefore native format with its metadata was essential. Further, plaintiff argued that defendant did not explain how it arrived at its costs, nor did it support its argument with an actual estimate of costs from an ESI vendor. Plaintiff also contended that her compensatory and punitive damages could range from $50,000 to $300,000, in addition to lost wages and benefits. The court stated it was at a loss to understand why production of native documents was more costly than that of PDF files, finding that defendant had not made an adequate showing that native format production was cost-prohibitive. Additionally, the court found that even if defendant had made such a showing, the plaintiff had shown good cause for the court to order native production. The court noted that while there was no specific reason as yet to believe the data had been modified, it was not unreasonable for the plaintiff to seek to verify its authenticity. Further, the court found that while it did not appear plaintiff’s suit to be of a high dollar value, “the public value of allowing a civil rights plaintiff opportunity to access information relevant and quite possibly necessary to her pregnancy discrimination suit far outweighs the asserted $3,000 cost.” Defendant was ordered to produce in native format in 14 days from the data of the order.


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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