Electronic Discovery Bulletin May 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.

New E-Discovery Glossary Available

The Electronic Discovery Reference Model (EDRM) released a comprehensive e-discovery glossary, containing definitions of more than 1,400 e-discovery and information governance terms. The terms are listed in alphabetical order with definitions and attributions where appropriate. The glossary can be accessed at www.edrm.net/resources/glossaries/glossary.

British High Court Approves Use of Predictive Coding

The British High Court for the first time on its own volition issued an order approving the use of predictive coding despite the objection of one party. In last month’s issue of the NAGTRI E-Discovery Bulletin, we reported that the court had approved its use in Pyrrho Investments Ltd. v. MWB Property Ltd., EWHC 256 (2016), but only after both parties agreed to its use and merely sought approval from the court.

Former NY District Judge Scheindlin on E-Discovery

In her first interview since leaving the U.S. District Court for the Southern District of New York bench, former Judge Shira Scheindlin comments on topics including the significance of her rulings in Zubalake and Pension Committee, thoughts about amended Rule 37 and the most pressing current e-discovery issues. The interview, conducted by Jason Krause of the Association of Certified E-Discovery Specialists (ACEDS), can be accessed at http://www.aceds.org.

Sedona Conference Publishes Patent Litigation Chapter

The Sedona Conference Working Group 10 announced the publication of the public comment version of the Commentary on Patent Litigation Best Practices: Chapter on Heightened Pleading Standards. Form 18 of the Federal Rules of Civil Procedure has in the past provided a basic format for pleading claims of direct patent infringement. Its bright line standard largely avoided controversy over the level of detail required to plead an infringement claim. However, the Federal Judicial Conference repealed Form 18 effective December 15, 2015, creating the potential for disputes over the amount of information required to plead infringement claims under the U.S. Supreme Court’s Iqbal and Twombly decisions. This chapter provides guidance on the level of detail to now be included with the pleadings, both from the perspective of the minimum requirements set by those two cases and from the perspective of what additional information should be further encouraged from both parties to promote efficient resolution of disputes. If adopted, the Principles and Best Practices of this chapter could streamline the pleading process. The chapter can be accessed at www.thesedonaconference.org, and comments should be sent to comments@sedonaconference.org by August 15, 2016.

Changing Trends in Data Collection

The challenges of collecting data from mobile devices, stored data in the cloud, social media and other sources of potential relevant information often require the use of new technologies. However, new technologies raise questions that must be answered: 1) how the technology works; 2) how users interact with the technology; 3) where all the data is stored; and 4) how the data is stored. A new article in Peer to Peer Magazine, “Data Collection: Embracing New Technologies and Abandoning Old Paradigms,” is designed to help readers understand more about the changing trends in data collections and computer forensics. The article may be accessed at www.ediscovery.com/cms/pdf/iltanet-data-collection-may2016.pdf.

Case Law: Too Great a Leap to Conclude Destroyed Records Showed Fault

Botey v. Green, no. 12-01520 (M.D. Pa. April 4, 2016) arose from a traffic accident between plaintiff Jonathan Botey and truck driver Robert Green which resulted in serious injury to Botey. Botey had planned to take Green’s deposition during discovery, but it was determined that Green suffered from dementia and could not be deposed. Botey then sought additional discovery from the trucking company Green was working for at the time of the accident, including 30 days of Green’s trip documents and logs. The trucking company argued that only the logs going back 34 hours before the accident were relevant, but pursuant to a hearing, the U.S. District Court for the Middle District of Pennsylvania ordered the trucking company to provide 15 days of logs. However, the trucking company produced only four days of logs, so Botey filed a motion for sanctions, seeking an adverse inference instruction as well as an order precluding the trucking company from arguing that Botey lacked evidence to prove his corporate negligence claims based on the documents destroyed. The trucking company’s logs were maintained by a third party vendor, which only stored the electronic data from the trucks for six months before automatically deleting it. Botey had sent preservation letters to a local office rather than the trucking company’s corporate office, and the trucking company acknowledged that the letters were never forwarded. The district court, having already found that the trucking company was under a legal duty to preserve the logs, ruled that Botey had not shown entitlement to an adverse inference instruction because “it is too great a leap to conclude that, if the destroyed records were preserved, they would have shown such evidence of a loss by Green of his mental faculties that the trucking company would have been placed on notice that he was suffering from dementia and was likely to cause accidents…” While denying the request for an adverse inference instruction, the court found it only fair that the trucking company would not be allowed to claim that information in the destroyed records would exonerate them.

Case Law: Evidence of Bad Faith: Two Different Results

In Martin v. Stoops Buick, Inc., no. 14-00298 (S.D. Ind. Apr. 25, 2016), the U.S. District Court for the Southern District of Indiana found that although defendant breached its duty to preserve, there was no evidence of bad faith, and the court denied the motion for sanctions. Ella Martin sued Stoops Buick (”Stoops”) for wrongful termination. Martin had worked part time for Stoops for almost one year when she was offered full-time employment in February 2013. However, two weeks after her full-time employment began, Martin was terminated as not “a good fit” for the position and replaced. She claimed she told Stoops’ general manager immediately afterward that she was going to file a discrimination claim. Martin filed an Equal Employment Opportunity Commission (EEOC) claim two weeks later and Stoops was notified, but the EEOC dismissed the claim in November 2013. Martin filed the instant suit in February 2014. Discovery ensued, and in December 2015, Martin moved for spoliation sanctions, claiming Stoops destroyed and/or replaced her work computer, which precluded her from obtaining evidence to support her claim. Stoops countered that their unwritten data retention policy provided that the files of terminated employees be preserved for at least 30 days. The supervisor claimed she asked their IT department to preserve all of Martin’s computer data, and although they agreed to do so, the files were deleted. The court determined that although the supervisor claimed to have placed a litigation hold on Martin’s files, there was no evidence in the record to support her statement. Thus, the court found that Stoops breached their duty to preserve evidence. The court did note, however, that Stoops did produce responsive documents in its possession for Martin’s first request for production. Further, the court noted that Martin’s own expert admitted that, after hearing all the evidence, Stoops did not destroy evidence in bad faith. Thus, the court ruled that Martin did not carry her burden of proving that Stoops deliberately destroyed evidence and denied the motion for sanctions.

But see…

In O’Berry v. Turner, nos. 15-00064/15-00075 (M.D. Ga. Apr. 27, 2016), the U.S. District Court for the Middle District of Georgia found that defendant’s “minimal effort” to preserve data evidenced an intent to deprive plaintiff of the information, and the court granted the motion for sanctions. The case arose from a tractor-trailer incident. A car driven by James O’Berry was struck by a tractor-trailer driven by Sandy Turner, who suddenly swerved into his lane. O’Berry sued Turner and the trucking company. Two months after the accident, O’Berry’s counsel faxed a preservation letter to the trucking company requesting preservation of Turner’s driving logs as well as information from and about the tractor-trailer, and the trucking company’s counsel promised to do so. However, after multiple discovery demands, the trucking company did not send the information and eventually admitted that it had been inadvertently destroyed. O’Berry filed a motion for sanctions, requesting an adverse inference instruction against the trucking company be given. The trucking company argued that prior to receiving the retention letter, they had printed the driving logs and data from the truck, but did not save the information in electronic format. The hard copy documents were put in a folder and packed in a box pursuant to a move to a new office, but the folder was subsequently missing. The trucking company contacted PeopleNet, the third party site responsible for storing the driver logs and tractor-trailer information, but learned the information had been deleted pursuant to PeopleNet’s retention policy. The court found that the trucking company’s duty to preserve arose at least when it received the retention letter, and the trucking company’s decision to print the data and keep it in a folder was a “minimal” preservation effort. The court found that the trucking company acted with intent to deprive O’Berry of the information because it did not treat the documents with the appropriate level of importance and it was therefore a failure to preserve. The court ordered an adverse inference instruction be given to the jury that the missing data should be presumed to have been unfavorable to the trucking company.


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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