Electronic Discovery Bulletin June 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.

  • If you handle civil cases in federal courts, you could be facing a “rocket docket.” Last fall the U.S. Judicial Conference approved a Mandatory Initial Discovery Pilot (MIDP), currently being tested in Arizona and the Northern District of Illinois. It requires parties to serve mandatory discovery responses 30 days after an answer is filed and produce all hard copy documents and ESI relating to the claims in the case 40 days after that. According to the MIDP Users' Manual, parties may not opt out, and MIDP requirements supercede disclosure requirements in FRCP 26(a)(1). Maryland District Court Judge Paul Grimm has recorded an introductory video to the MIDP to further explain the process.

  • Preservation and collection of data in eDiscovery often involves both unstructured data sources (such as email, file shares or SharePoint documents) and structured data (such as databases and data archives). To better understand these concepts, Beyond Recognition has developed an overview and a chart of characteristics of structured vs. unstructured data.

  • The 2015 FRCP amendments have been in effect for more than one year, and many practitioners wonder if and when the states will follow suit; below is an update:
    • Colorado adopted the 2015 amendments with some differences. It reads Rule 26 in conjunction with Rule 1 to “secure the just, speedy and inexpensive determination of every action.” In addition, its Rule 37 does not mirror that of the 2015 amendments.
    • Connecticut adopted the 2015 amendments’ proportionality language, but its sanctions are similar to the 2006 amendments. It also includes an ethical requirement of “technological competence” as part of an attorney’s obligation.
    • Illinois adopted the 2015 amendments’ emphasis on proportionality, but it also created a list of ESI that should not be discoverable due to difficulty.
    • In Massachusetts, adoption of the 2015 amendments was debated, but ultimately it was decided to only adopt Rule 1, which places responsibility on the parties and the courts to “ensure the just, speedy and inexpensive determine of every action.”
    • New York added ESI accommodations to its existing rules, including adding an entire section addressing eDiscovery from nonparties and requiring counsel for parties who anticipate eDiscovery to be “sufficiently versed in … their clients’ technological systems to discuss [eDiscovery issues] competently” at a pretrial conference.
    • In Oklahoma, proposed amendments to adopt the 2015 FRCP’s proportionality language are still pending. Its Rule 1 drops “liberally construed” and adds “”construed, administered and employed by courts and parties to secure” the just, speedy and inexpensive determination of action. Its Rule 26(b) proposal mirrors the 2015 amendments except it retains the phrase “reasonably calculated” before “relevant and proportional.”
    • In Texas, the focus has been on clarifying spoliation of evidence. Last year the Texas Supreme Court requested review of a proposal clarifying the issue, but no action has been taken yet.

  • FRE 502 was enacted in 2008 in response to complaints about the prohibitive costs involved in protecting against inadvertent waiver of attorney-client privilege or work product protection during discovery. Rule 502(a) and (b) explain the circumstances under which the unintentional disclosure of privileged information does and does not constitute a waiver. Under FRE 502(d), the court may issue an order providing that a party’s disclosure of such privileged documents does not waive the privilege, even when, according to the Advisory Committee notes, a party did not conduct any screening for privileged documents. The 502(d) order is an important discovery tool because:
    • The no-waiver applies in other federal and state court proceedings;
    • The parties could incorporate the order into a detailed agreement on its scope in the litigation;
    • Privileged documents have to be returned to the disclosing party, irrespective of the care taken by that party in reviewing them prior to production; and
    • The court can issue the order sua sponte without the parties’ agreement.

Typically judges favor 502(d) orders because they are designed to reduce the cost of privilege review and allow parties to review and produce documents expeditiously and without lengthy motion practice on potential waivers of privilege.

Recent eDiscovery Court Decisions

  • In Coyne v. Los Alamos National Security, LLC, the U.S. District Court for the District of New Mexico adopted the magistrate’s recommendation of dismissal of plaintiff’s suit, finding plaintiff’s conduct, which included filing a false affidavit, intentionally destroying evidence and attempting to deceive the court with fabricated evidence, was egregious enough to warrant terminating sanctions.

  • In Arrowhead Capital Finance, Ltd. v. Seven Arts Entertainment, Inc,, the U.S. District Court for the Southern District of New York entered a default judgment against defendants, finding defendants engaged in willful discovery misconduct for nearly two years, with lesser sanctions having no effect.

  • In DiStefano v. Law Offices of Barbara H. Katsos, PC, the U.S. District Court for the Eastern District of New York declined to find spoliation, deciding that defendant attorney’s actions due to her lack of computer knowledge were merely negligent and not grossly negligent.

  • In Gordon v. T.G.R. Logistics, Inc., the U.S. District Court for the District of Wyoming granted defendant’s motion to compel production from plaintiff’s Facebook account, but imposed significant limits on the scope of production, including denial of defendant’s request for social media information dated prior to the accident.

  • In Taylor v. Thrifty Payless, Inc., the U.S. District Court for the District of Oregon found no showing that defendant had destroyed video evidence in response to the litigation, as it was deleted as part of a video deletion protocol at a time when defendant had no expectation of litigation, so accordingly the court granted summary judgment in favor of defendant.

  • In In re State Farm Lloyds, Relator, the Texas Supreme Court denied the petition for a writ of mandamus without prejudice, noting that it was affording the relator an opportunity to reconsider its objections to the requesting party’s request for a native file production.

  • In Webb v. Exxon Mobil Corp., the Eighth Circuit Court of Appeals held that plaintiff failed to show why Exxon’s late document production would have changed the result of the summary judgment motion, so there was no basis for reversal.

  • In Kennedy v. Supreme Forest Products, Inc., the U.S. District Court for the District of Connecticut denied the motion for sanctions, finding that although plaintiff should have kept the recordings on his phone, the deletions were not done in bad faith, and there was no evidence that copies of the recordings had been altered.

  • In First American Bankcard, Inc. v. Smart Business Technology, Inc., the U.S. District Court for the Eastern District of Louisiana held that documents in possession of the former owners were discoverable, since the former owners had an obligation to provide them. The court further found that forensic imaging of computers was within the scope of discovery, but plaintiff did not sufficiently establish why the request for imaging was proportional to the needs of 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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