The National Attorneys General Training & Research Institute

The National Attorneys General Training & Research Institute The National Attorneys General Training & Research Institute

Electronic Discovery Bulletin June 2018

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 Developments

A blog post by Kathryn Cole of Farrell Fritz discusses email threading, a process by which emails are grouped together so they can be reviewed as a single coherent conversation. The blog discusses its use as an analytic tool for efficiency during the document review process.

EDiscovery provider CloudNine is offering a free webcast titled “Collecting Responsive ESI From Difficult Places” on June 20, 2018 at 1 pm ET. It will include such topics as options for collecting from mobile devices and from social media, recommendations for addressing collection requirements and IoT devices and collection strategies. Register here.

This article by eDiscovery provider Exterro discusses the four biggest challenges to data mapping and how to address them. The challenges discussed, which should be all too familiar, are: 1) too time consuming to build; 2) impossible to keep information up to date; 3) incomplete information; and 4) not comprehensive.

The Sedona Conference Working Group 6 on International Electronic Information Management, Discovery and Disclosure published its International Principles for Addressing Data Protection in Cross-Border Government & Internal Investigations: Principles, Commentary & Best Practices. It is designed to be a companion work to the Working Group’s International Litigation Principles and outlines eight principles to guide organizations in planning for and responding to investigations while ensuring that protected data is safeguarded. It can be downloaded from https://thesedonaconference.org/publications.

The Sedona Conference also published the final version of its Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations, developed by its Working Group 1 on Electronic Document Retention & Production. The public comment version was released in January 2018, and this final version incorporates comments received. It too can be downloaded at https://thesedonaconference.org/publications.

Recent Decisions to Note

In Heggen v. Maxim Healthcare Services, Inc., the U.S. District Court for the Northern District of Indiana ruled that the plaintiff’s destruction of requested cell phone recordings, as well as her lying under oath, were sanctionable under Rule 37 and ordered her to pay the reasonable expenses, including attorney’s fees, that the defendant incurred in bringing the motion to compel. The court indicated it would also consider a spoliation instruction should the case go to trial.

In Ideus v. Teva Pharmaceuticals USA, Inc., a products liability case involving the contraceptive device ParaGard, the U.S. District Court for the District of Nebraska granted in part the plaintiff’s motion to compel, finding that although plaintiff requested any documents related to the complaint investigative process, defendant only produced those related to the manufacturing lot. The court denied the motion as to plaintiff’s request to compel other documents, as not relevant.

In TMJ Grp., LLC v. IMCMV Holdings, the U.S. District Court for the Eastern District of Louisiana ruled on both parties’ motions to compel. On defendant’s motion to compel redacted communications between plaintiff and a bank, the court ruled that a second deposition of a bank representative was appropriate, but limited it to documents produced after the first bank deposition. On plaintiff’s motion to compel financial documents on defendant’s other restaurants and to compel other documents to be produced in Excel rather than PDF format, the court ruled the other restaurants’ financial documents were irrelevant and that the production in Excel was too great a burden, but ordered the parties to work together to provide the documents in their native format.

In Nunes v. Rushton, the U.S. District Court for the District of Utah granted plaintiff’s motion for sanctions as to defendant’s Google “sock puppet” accounts, finding that plaintiff was prejudiced by their deletion, and ordering an adverse inference instruction be given to the jury regarding their bad faith deletion. The court denied the motion as to the other accounts, determining that the plaintiff suffered no prejudice because the information pertaining to those accounts remained, was saved by plaintiff before the deletion or could be recovered by Google and Yahoo.

In Winfield v. City of New York, the U.S. District Court for the Southern District of New York denied the plaintiff’s request for a “quick peek” at 3300 documents listed on the defendant’s privilege log, proposing instead the appointment of a special master to conduct a privilege review of those documents.

In Ortiz v. Amazon.com LLC, the U.S. District Court for the Northern District of California ordered the plaintiff, who failed to produce court-ordered cell phone records because the account was in his non-party wife’s name, to provide his cell phone holder’s account name and address so defendant could subpoena the cell phone records from her.

In Delgado v. Tarabochia, the U.S. District Court for the Western District of Washington granted in part and denied in part the plaintiff’s motion to quash subpoenas for personal phone records and bank records, determining that phone records before the plaintiff’s injury on the defendant’s boat were “of vital importance to defendants’ theory of the case,” but that the need for pre-incident bank records was not 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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