Electronic Discovery Bulletin May 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.
May 22, 2017
The ABA issued Formal Opinion 477 on Securing Communication of Protected Client Information which says that a lawyer may transmit information related to the representation of a client when the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. The opinion finds a lawyer may be required to take special security precautions when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.
The Sedona Conference Working Group 1 released the public comment version of The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addresssing Electronic Document Production. The Commentary incorporates the changes made in the 2015 FRCP amendments, particularly the six Principles of Proportionality. Comments may be sent by June 30, 2017 to email@example.com.
A discovery dispute made its way to the U.S. Supreme Court in Goodyear Tire & Rubber Co. v. Haeger, where the justices overturned a $2.7 million sanctions order imposed for Goodyear’s violation of discovery rules. The Court rejected the Ninth Circuit Court of Appeals’ sanctions order, concluding that the amount of attorneys’ fees awarded may not have been directly related to the misconduct.
In a post entitled A New Paradigm in Mobile Device Preservation, eDiscovery expert Craig Ball states that if an attorney fails to advise clients to preserve relevant and unique mobile data when under a preservation duty, that attorney is committing malpractice. Ball notes that data on mobile devices today is not merely a copy of ESI to be found on other sources.
According to a Complex Discovery article on pricing and transparency, some eDiscovery vendors are comfortable enough with their capabilities and grasp of the economics to publish their pricing to current and potential clients. This presents a sharp contrast to those vendors who hide their pricing behind a veil of customization and complex quotes and invoices. The article present two examples of published pricing that may be very useful to those in the marketplace for eDiscovery services.
A free webinar on common "pitfalls" and "potholes" encountered during the discovery life cycle and how to address them is scheduled for June 14, 2017 at 1 pm ET. The webinar is hosted by ACEDS and features Doug Austin, VP of Ops and Professional Services at CloudNine. It includes a discussion of such issues as 1) minimizing potential ESI spoliation opportunities; 2) common searching mistakes; and 3) how to avoid getting stuck with a bad production.
According to a post by Percipient, random sampling is a useful tool for large document reviews because it might be difficult (or even impossible) to review every document in a project. The article adds that examining a random sample of data or documents collected will help determine whether it is worth looking at more of the data or whether the process or techniques should be changed.
EDiscovery provider Logikcull has made available an on-demand webinar that reviews many of the most important eDiscovery cases of the year to date. The webinar covers issues such as sanctions developments under new FRCP 37(e), privilege waiver, taxation of costs and the renewed emphasis on proportionality.
Recent eDiscovery Court Decisions
In Williams v. Angie's List, Inc., the U.S. District Court for the Southern District of Indiana determined that the defendant had the legal right to obtain the discovery (the relevant test in the Seventh Circuit). However, the court denied the defendant’s motion to shift costs, finding that the relevant factors in the test for proportionality, especially those regarding the importance of the discovery at issue, all weighed against cost shifting.
In Rockwell Med., Inc. v. Richmond Bros., Inc., the U.S. District Court for the Eastern District of Michigan found plaintiff’s “exceedingly broad” requests to be an immense burden that outweighs its likely benefit. The court also held that a shortened timeline does not give a party permission to disregard the FRCP.
In Zamora v. Stellar Management Group, Inc., the U.S. District Court for the Western District of Missouri acknowledged the destruction of discoverable information, but concluded a finding of prejudice was premature in the absence of unknown material that was available through other means of discovery.
In Parkcrest Builders, LLC v. Housing Authority of New Orleans, the U.S. District Court for the Eastern District of Louisiana held that counter-defendant, having given only boilerplate objections, had waived its objections that the discovery requests were overbroad, vague, burdensome, oppressive and/or irrelevant, granting defendant’s motion to compel with respect to those requests.
In Meredith v. United Collection Bureau, Inc., the U.S. District Court for the Northern District of Ohio held that the FRCP may require parties to create computer programs to search existing databases, even if such effort takes days.
In Hsueh v. N.Y. State Department of Financial Services, the U.S. District Court for the Southern District of New York determined that an adverse inference instruction was an appropriate remedy for plaintiff Hsueh’s deletion of a recorded conversation with a human resources representative, finding that FRCP 37(e) applies only to situations where a party failed to take reasonable steps to preserve ESI, not to situations where a party intentionally deleted the recording.
In TLS Managment and Marketing Services, LLC v. Rodriguez-Toledo, the U.S. District Court for the District of Puerto Rico found that defendant Rodriguez acted with the intent to deprive plaintiff from using ESI by discarding the laptop without making any attempt to preserve the potential ESI within. The court also ordered defendants, at their own expense, to permit a forensic examination of a flash drive containing ESI from the external hard drive, but denied the motion for sanctions for loss of defendant’s iPhone because plaintiff had not provided sufficient evidence as to the time period when the loss occurred.
In Bird v. Wells Fargo Bank, the U.S. District Court for the Eastern District of California, troubled by defendant’s position that it was not under any obligation to provide discovery unless there was full agreement on search terms, ordered defendant to produce documents related to plaintiff’s employment; disclose its discovery plan, search terms and custodians; produce its document retention policies on employee emails; and produce an initial privilege log.
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 firstname.lastname@example.org.