Electronic Discovery Bulletin March 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.

Planning for BYOD Policy Implementation

Vikas Pall’s article in Peer to Peer Magazine suggests that allowing employees to bring their own devices (BYOD) could have risks without a well-planned policy in place. He suggests four considerations in building such a policy: 1) a policy should be simple and easy to follow and developed for both end users and the IT department; 2) The policy should be device-specific as to which devices are included, and it should also provide procedures to follow when an employee leaves the organization; 3) the policy should specify what kinds of data can be accessed on approved BYOD devices, with mobile, data and app security measures taken to prevent data breaches; and 4) the effectiveness of the BYOD policy should be regularly reviewed. The full article can be accessed in the magazine at http://epubs.iltanet.org/i/624i/624i/538-winter-2015.

Tracking E-Discovery Costs Metrics

A recent article by e-discovery provider Percipient discusses tracking costs, and is summarized here. Among the many cost metrics that could be tracked, some worth considering are: 1) amount spent vs. budget; 2) cost per case, case type or litigation unit; 3) individual case statistics, such as by average length to resolution, number of motions filed or number of appeals; and 4) amount spent on inside vs. outside legal resources. The full article can be accessed at https://percipient.co/3985-2/.

Free Webinar on Reengineering How E-Discovery is Practiced and Managed

This webinar by the Association of Certified E-Discovery Specialists (ACEDS), to be held on March 30 from 1-2 pm EST will discuss ways to measure e-discovery quality and cost. Topics will include: 1) breaking the e-discovery process into measurable components; 2) leveraging data; 3) increased efficiency through statistics gathering and dash-boarding; and 4) using reporting data to justify appropriate resource allocation. Registration is at http://www.aceds.org.

Preserving Attorney-Client Privilege When Conducting Internal Investigations

Internal investigations, whether for compliance, regulatory or other purposes, are intended to be conducted without the fear of the resulting interviews and information being subject to a subsequent request for their discovery. This article discusses prudent steps to be taken in advance, and policies to be put in place, to preserve the attorney-client privilege. It can be accessed at http://www.complexdiscovery.com/info/2016/03/18/preserving-the-attorney-cleient-privilege-when-conducting-an-internal-investigation-pilieromazza-plic-jdsupra/.

Statistics From the American Law LTN Tech Survey

The 20th annual Legal Tech News (LTN) tech survey included responses from 79 firms. Regarding e-discovery, the survey revealed that 82 percent of firms use an electronic data platform from a single vendor, with only 10 percent of firms using multiple platforms and only five percent using a custom in-house platform. More than one-half of the firms responding said they have invested in software as a service (SaaS) cloud computing, with 62 percent using those applications for e-discovery and litigation support. However, 86 percent responded that security was their biggest concern about cloud computing, and 52 percent still maintain their own backup of data stored in the cloud. Additional survey results can be accessed at http://www.legaltechnews.com/id=1202744411130/By-the-Numbers-Cybersecurity-in-the-2015-Am-Law-LTN-Tech-Survey.

The New FRCP Amendments: Re-Evaluation May Be Required

A recent poll found that 57 percent of legal professionals have or intend to re-evaluate their e-discovery process based on the new Rule amendments. Accordingly, e-discovery services provider Exterro has developed an e-book on the Rule changes, focusing particularly on amended Rule 37(e). They note that the revised rule still follows the common law duty to preserve relevant information, although it authorizes specific measures that the court may employ in those instances where information that should have been preserved was lost, and more importantly, it specifies the findings the court must make for it to impose curative or more extreme sanctions. The e-book, 3 FRCP Rule Changes You Need to Know, may be downloaded at http://go.exterro.com/l/43312/2016-03-04/4f8rf6. Please note that the e-book is free, but contact information is required.

May Attorney Work Product Be Used for Business Purposes?

If attorney work product is used for business purposes, does it lose its protected status? That question is addressed in this article from services provider Percipient, relying on the “because of” test. Under that test, followed in most federal circuits, material used for business purposes does not lose attorney work product protection if it was created “because of” anticipated litigation. The full article may be accessed at https://percipient.co/what-happens-if-attorney-work-product-is-used-for-business-purposes/.

Information Governance and the 2015 Amended Rules

The 2015 FRCP amendments not only change how e-discovery in federal courts will be conducted, but also should be seen as potentially having an important bearing on information governance policies. In the first of a two-part series, Jason Baron, of counsel to the information governance and e-discovery practice at Drinker, Biddle & Reath, offers some observations about the potential Internet governance impact. The article may be accessed at http://www.drinkerbiddle.com/resources/publications/2015/ig-and-the-new-frcp-rules.

Case Law: Protective Order to Redact Identifying Information

In Theidon v. Harvard University, 2016 U.S. Dist. LEXIS 13609 (D. Mass. Feb. 4, 2016) [case no. 15-10809], the U.S. District Court for the District of Massachusetts denied defendant’s motion for a protective order. Kimberly Theidon, a former anthropology professor at Harvard, sued the university for sex discrimination and retaliation after she was denied tenure. Among other issues arising during discovery, Harvard moved for a protective order to 1) redact the names and identifying information of 16 scholars from other schools and 13 members of Harvard’s anthropology department who had evaluated Theidon; 2) redact the names of scholars to whom Theidon was compared by evaluators; and 3) limit distribution of the names of the ad hoc committee members who considered Theidon’s tenure to the attorneys in the case. The district court looked at amended Rule 26(b)(2)(C) and determined that Theidon’s need to access evidence had to be balanced against Harvard’s interests. The court denied the motion, finding there was no privilege for tenure peer review materials, and reasoning that denying Theidon access to the materials was “tantamount to thwarting her case at trial.”

Case Law: Failure to Preserve Text Messages

In Benefield v. MStreet Entertainment, LLC, 2016 U.S. Dist. LEXIS 11472 (M.D. Tenn. Feb. 1, 2016 [case no. 13-1000], the U.S. District Court for the Middle District of Tennessee found defendants failed to preserve text messages and ordered an adverse inference instruction. Jessica Benefield filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging she was fired from MStreet Entertainment (“MStreet”) in retaliation for reporting sexual harassment to their human resources department. She filed suit three months later under both the federal and the Tennessee Civil Rights Acts. Among other discovery disputes, Benefield moved for sanctions for spoliation of evidence, alleging MStreet failed to preserve text messages between key officers and employees. The district court found that within five days of filing suit, Benefield made a written demand to MStreet that all electronic communications between Benefield and MStreet or MStreet’s employees be preserved. When Benefield requested that MStreet produce their text messages, she was advised that no such messages existed because they had been unable to preserve them. MStreet further stated that creating a policy for preservation of private text messages was unduly burdensome and invasive. The court found that MStreet had notice very early in the case that they needed to preserve electronic communications, and they did not take appropriate measures to preserve text messages. The court disagreed with MStreet that privacy concerns outweighed the importance of the messages in the instant case. The court ordered a spoliation instruction for the jury, but declined to order further sanctions.

Case Law: Spoliation Sanctions Limited Under Amended Rule 37(e)

Best Payphones, Inc. v. City of New York, 2016 U.S. Dist. LEXIS 25655 (E.D.N.Y. Feb. 26, 2016 [case nos. 1-CV-3924, 1-CV-8506, 3-CV-0192].

Best Payphones sued the City of New York (“the City”), alleging violations of Best Payphones’ constitutional rights by instituting a regulatory framework requiring franchises and permits in order to operate payphones, as well as by discriminating and retaliating against the company. In the course of discovery, the City filed a motion for sanctions for Best Payphones’ failure to preserve hard copy documents and ESI. The City argued that Best Payphones’ duty to preserve arose on July 11, 2000 when it originally filed suit against the City. The City further alleged that Best Payphones failed to institute a litigation hold and, although it denied engaging in email communications with the City or anyone else, the City had such emails from principals at Best Payphones. The district court noted that the amended Rule 37(e) requires intent to deprive the other party of the evidence before the court can issue an adverse inference instruction. In the instant case, the court did not find evidence supporting willfulness on Best Payphones’ part. The court found instead that Best Payphones was negligent, but not grossly negligent. As to the emails that Best Payphones claimed had never occurred, the court held that the City had failed to demonstrate how they were prejudiced by the lack of emails produced. The court further noted that the City did not subpoena any non-parties for deposition or documents, which it could have done if the emails had been so important. The court ruled that Best Payphones had a duty to preserve and negligently breached that duty, but the City was not prejudiced the breach. The court ordered Best Payphones to pay the City’s costs and fees, but did not order spoliation sanctions.


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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