California Court Compels Defendant to Re-Produce Electronically Stored Information in Format Requested by Plaintiffs

A California federal trial court has granted the plaintiffs’ motion to compel re-production of electronically stored information (“ESI”) in native format with all associated metadata, while also granting plaintiffs their “reasonable expenses” incurred, including attorneys’ fees, in making their motion.  In Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ., No. 2:11-cv-3471 KJM AC (E.D. Cal. Feb. 1, 2017), the court rejected the defendant’s argument that a requesting party cannot demand production in a specific format that would ease the requesting party’s review process, finding that such an argument runs directly counter to Rule 34(b)(1)(C) of the Federal Rules of Civil Procedure.  The court held that requesting production in a specific format to facilitate the “ease of review” is exactly what is contemplated by the rules.

In reaching its decision, the court emphasized that the producing party cannot ignore a request to produce ESI in a specific format, even if the production is in a “usable form” and paired with “essential metadata.” Rather, the court explained that Rule 34(b)2)(E)(ii) only permits production in a “reasonably usable form” if the request does not specify the form for production.  Because the plaintiff did specify the form of production in this case, the court held that there was no basis for defendant to ignore this request.

The court also rejected the defendant’s argument that requiring it to re-produce documents in native format would be an undue burden, ruling that “this is a problem of [defendant’s] making.  Had the defendant complied with plaintiffs’ requested format for production in the first instance, it would not have had to produce the documents twice.  Alternatively, the court noted, defendant could have timely objected to the production format requested by plaintiff and proposed to produce the ESI in its own chosen format.  Even if plaintiffs were likely to deny this proposal, it would have allowed the parties to meet and confer on what format would be used and what metadata would be produced prior to the initial production.  If the meet and confer proved futile, the issue could have been briefed to the court before production, as opposed to after.

Finally, the court also rejected the defendant’s argument that production of the documents in native format would infringe on the attorney-client privilege and work product doctrine.  The court held that defendant’s privilege objection was invalid because defendant had not produced a privilege log that complied with the federal rules.  Here, the defendant produced multiple versions of privilege logs, but none of them provided sufficient information for plaintiffs to determine the basis of defendant’s claimed privilege.  For example, the privilege logs did not indicate the subject of the communication or whether an attorney was included on the communication.  The court stopped just short, however, of finding that the defendant had permanently waived its assertion of the attorney-client privilege, granting the defendant 30 days to either produce all of the documents in question or produce adequate privilege logs, justifying the exclusion of specific documents from the native format production.

The takeaway from this case is that requesting parties have the right to specify the format of production of ESI.  If production of the documents in the requested format poses an undue burden for the producing party, it is the producing party’s burden to object to the specified format at the time it responds to the original request for production of documents and propose an alternative format for the production.  Failure to make a timely objection and counterproposal can result in the producing party waiving any such objections and being compelled to produce documents in the format specified by the requesting party, regardless of the burden to the producing party or whether the documents have already been produced in an alternate format.

Court Rejects Overly Broad Request For Forensic Imaging Of Plaintiff’s Personal Computers


An Illinois appellate court has vacated a trial court’s order compelling the forensic imaging of several personal computers used by plaintiff, applying a balancing test that takes into account both the proportionality rule and the privacy concerns implicated in the request.  In Carlson v. Jerousek, 2016 IL App (2d) 151248, P4 (Ill. App. Ct. 2d Dist. 2016), defendants in a personal-injury case moved to compel discovery of “electronically retrievable information,” ultimately asking the trial court for unrestricted access to inspect plaintiff’s personal computers, including a computer leased to plaintiff by his employer.

Carlson alleged that a brain injury affected his ability to complete tasks at work. The defendants argued that metadata from Carlson’s work computer would show them how long it took Carlson to complete tasks, and metadata from Carlson’s personal computer would indicate whether he stayed up at night playing computer games, demonstrating his ability to concentrate.  The defendants conceded that they did not know how to use the metadata but a “computer expert” would.  Although the trial court expressed skepticism about the broad nature of the requests, it entered an order requiring forensic imaging of the plaintiff’s computers.

The plaintiff sought reconsideration based on an affidavit from his employer’s in-house counsel, stating that the employer’s computer contained restricted information that could not be shared.  The trial court refused to consider the affidavit.

On appeal, the court noted that there is dearth of case law on forensic imaging and sought to fill in the gaps by examining the constitutional right to privacy, and applying the proportionality rule to electronic data.

In addressing privacy concerns, the appeals court found that the trial court should have considered the employer’s affidavit because it directly addressed the issue of private information.  The court noted that electronic discovery implicates privacy rights in a way that may sometimes seem “incomprehensible” to litigators, because of the sheer volume of information that can be stored on a computer. For example, even if a computer might contain some discoverable information, it might also contain large quantities of personal information or confidential business data.  On this basis, the appeals court found that the defendants were not entitled to such a “broad and intrusive” search.

As to proportionality, the appeals court explained that the proportionality requirement specifically targets the challenges posed by electronic discovery. Certain categories of data, such as data that is deleted, fragmented, ephemeral (such as random access memory), duplicative, or difficult to obtain without additional programming, is presumptively undiscoverable unless the requesting party can justify it.  To evaluate such a request, the court established a framework requiring the requesting party to show that:  (1) there is a compelling need for the information; (2) the information is not available from other sources; and (3) the requesting party is using the least intrusive means to obtain the information.

Noting that the defendants’ showing did not adequately address this framework, the court held the trial court erred by not applying the correct analysis. The defendants’ requests, the court said, were “vague and ambiguous,” and at a minimum, they should have involved an expert from the beginning to formulate search terms and narrow the scope.  The court also pointed out that the potential utility of the information was outweighed by the burden imposed by forensic imaging.  And finally, the court noted the lack of evidence that the computers were likely to contain the evidence that defendants contended could be relevant.  In other words, the searches might turn up nothing.

The takeaway from this case – which surveys a number of cases from other jurisdictions – is that blanket requests for forensic imaging probably will not be approved without very specific parameters that describe the relevance of the information, the precise method for obtaining it, and the reason that the information cannot be obtained elsewhere. Litigants who wish to undertake such discovery should be prepared to articulate a significant need for the data sought, and to show that imaging is truly warranted under the circumstances of the case.  Litigants opposing intrusive e-discovery should consider whether they can oppose aggressive e-discovery based on the various factors discussed in the majority opinion.

Court Rules That Proportionality And Cooperation Are Essential In Resolving E-Discovery Disputes

Magistrate Judge R. Steven Whalen agreed with UPS that it did not have to spend six months and $120,000 to recover data stored on backup tapes that may not be relevant to the case if UPS prevails in its efforts to limit the scope of the putative class’s claims.  Instead, the Court directed the parties to share information and agree upon an appropriate methodology for statistical sampling.

In Solo v. United Parcel Services Co., No. 14-12719, 2017 U.S. Dist. LEXIS ______ (E.D. Mich. January 10, 2017) a putative class of shipping customers alleged that UPS breached its shipping contracts by repeatedly overcharging for shipments with a declared value of more than $300.  Plaintiffs made what they likely believed to be a reasonable request – how many packages with a declared value of more than $300 were shipped within the several years covered by Plaintiffs’ claims?

UPS argued that the request was excessively burdensome.  A UPS manager stated due to the sheer volume of packages the company shipped it maintained only six months of “package level detail” in readily-available, or “live”, form.  After six months, the information was archived onto back-up tapes.  According to UPS, extracting usable data from the archived information would require custom software, take six months, and have an estimated cost of $120,000.  Instead of producing the full scope of requested information, UPS produced an estimated number of packages for a period in 2013 based on a method that extrapolated “live” data from a more recent period.

The Court looked at two discovery concepts set forth in the 2015 amendments to the Federal Rules of Civil Procedure to decide the issue—cooperation and proportionality.  First, Rule 1 places a heightened duty of cooperation on the parties for procedural matters like discovery.  Second, Rule 26(b)(1) emphasizes that discovery should be proportional to the needs of the case.  The Court noted that the Advisory Committee notes explicitly linked the two concepts, writing that “Effective advocacy is consistent with—and indeed depends upon cooperative and proportional use of procedure.”

As to proportionality, the Court held that UPS had met its burden to show that the requests were “extraordinarily burdensome” by explaining that most of the requested data was not readily-accessible and that there would be a substantial cost in making it available.  The Court further noted that the relevance of Plaintiffs’ request was not proportional to the needs of the case at the time.  UPS was actively seeking to limit the scope of the case based on arbitration agreements and a 180-day window for customers to file complaints.  The Court noted that if UPS was successful on its motions, then the burden and expense of retrieving much of the requested information “will have been for naught.”

With regard to cooperation, the Court noted that Plaintiffs’ counsel had not been privy to the details of UPS’ sampling methodology because it involved proprietary data.  So the Court entered a protective order allowing UPS to disclose information on an “attorneys eyes only” basis.  With that exchange, the parties can work cooperatively to determine the appropriate balance between burden and benefit of the requested discovery.  If Plaintiffs are not satisfied with UPS’ sampling methodology, the Court directed the parties to “meet, confer, and agree on a mutually acceptable sampling methodology.”  While the Court generally endorsed the use of statistical sampling, it left open the possibility that Plaintiffs could request the full scope of the information for a relevant period of time, “with Plaintiff bearing the entire cost of production.”

This case adds to the long list of opinions emphasizing the importation of both cooperation and proportionality in the electronic discovery process.  Courts are increasingly expecting parties to share the “how” and “why” behind their discovery objections with the opposing party so that the parties can work together to determine an appropriate balance between the expected benefits of electronic discovery and the costs of producing electronically-stored information.

Lack Of Prejudice Results In Limited Sanction Against Defendant

In one of the first cases interpreting newly amended Fed. R. Civ. P. 37, F.T.C. v. DirecTV, Inc., 15-cv-01129-HSG, 2016 U.S. Dist. LEXIS 176873 (N.D. Cal. Dec. 21, 2016), Magistrate Judge Maria Elena James of the Northern District of California denied plaintiff’s motion to exclude spoliated evidence that was relied upon by defendant’s expert, reasoning that the plaintiff failed to show sufficient prejudice to warrant such a sanction.  The Court, however, did order that defendant’s expert sit for a four hour deposition to cure any prejudice resulting from defendant’s failure to engage in “best practices” related to the preservation of such evidence.

This is a lawsuit about DirecTV’s online marketing tactics. More precisely, plaintiff, the Federal Trade Commission (FTC), claims that defendant, DirecTV, deceptively and unfairly advertises its subscription services to consumers, in violation of the Federal Trade Commission Act (“FTC Act”) and the Restore Online Shoppers’ Confidence Act (“ROSCA”).

In its motion for sanctions under Fed. R. Civ. P. 37(e)(1), the FTC argued that despite being on notice since 2010, DirecTV failed to preserve three categories of ESI related to its website.

Interactive Versions of 2015 DirecTV website

The FTC argued that DirecTV did not preserve interactive versions of its 2015 website, which were relied upon by DirecTV’s expert. DirecTV responded by stating that it informed the FTC in June 2010 and February 2014 that it was not preserving all versions of its interactive website because it was technologically infeasible to do so.  Instead, in August 2013, DirecTV advised the FTC that it would produce monthly screenshots of its website, and ultimately made available source code and two 30(b)(6) experts on such code that would supposedly enable the FTC to reconstruct the website.

2011 – 2015 A/B Tests

The FTC also argued that DirecTV failed to preserve “thousands” of A/B tests that it conducted from 2011 until 2015. “A/B testing refers to the common practice of presenting different experiences to subsets of consumers and analyzing how consumers respond.”  DirecTV’s failure to preserve this ESI, the FTC argued, prejudiced its ability to compare DirecTV’s litigation evidence with similar evidence prepared in the ordinary course of business and has deprived the FTC of an opportunity to commission a counter-study.  DirecTV countered by explaining that it produced the single A/B test mentioned in its expert’s report and reminded the court that the parties already resolved this dispute in July 2016 when DirecTV agreed to produce other records relating to its consumer research studies.

Website Analytics Data

Finally, the FTC argued that DirecTV failed to preserve analytics data on the behavior of users navigating the company’s website. Without this data, the FTC argued that DirecTV should be precluded from using it to defend the case.  DirecTV responded by attacking the FTC’s delay in recognizing and raising this issue, and also alleged that the dispute was similarly resolved by the parties’ July 2016 agreement on consumer research studies.

In deciding the issue, the court stated that “[w]hile DIRECTV’s decisions may not constitute best practices, the Court finds that the FTC ultimately has not shown that it has been prejudiced to warrant exclusion of the information.” With regard to DirecTV’s failure to preserve interactive versions of its website for the time period used in the consumer surveys, the court stated that while plaintiff “may have preferred” preservation and production in a different format, plaintiff failed to show that DirecTV’s production of screenshots and source code was inadequate for its purposes.  With regard to the A/B tests, the court chastised plaintiff’s argument that “potentially relevant” data was lost, citing amended Rule 26(b)(1) to explain that the FTC was only allowed to seek information relevant to the claims and defenses, not information that “may lead to the discovery of admissible evidence,” an obsolete standard.  Finally, with respect to alleged lost website analytics, the court rejected plaintiff’s plea for evidence exclusion, noting the FTC’s delay in seeking sanctions on this issue and the lack of evidence that FTC’s experts needed additional data to evaluate defendant’s expert report.

Ultimately, the court denied the FTC’s request to exclude these categories of ESI, but did order that DirecTV produce its expert for a four hour deposition “should the FTC find this option useful” because the FTC was entitled to “confirm that the information [defendant’s expert] relied upon is consistent (in all material respects) with information from different time periods.”

The court’s refusal to impose a more severe sanction such as evidence exclusion highlights Rule 37(e)(1)’s requirement that the moving party has a burden to show prejudice. Further, the case reaffirms the rule’s directive that courts fashion remedies “no greater than necessary” to cure whatever prejudice identified.

Forensic Examination of Plaintiff’s Electronic Devices Disallowed Because It Was Not Proportional To The Needs of the Case

District Court Judge Jorge L. Alonso recently upheld Magistrate Judge Michael T. Mason’s ruling in a sex discrimination and hostile work environment case that forensic examination of a plaintiff’s electronic devices was not proportional to the needs of the case because any benefit the inspection might provide would be outweighed by the plaintiff’s privacy and confidentiality interests. 

At issue in Hespe v. City of Chicago et al., No. 13 C 7998, 2016 BL 417422 (N.D. Ill. Dec. 15, 2016) was the defendants’ request to inspect the plaintiff’s electronic devices for unproduced electronic communications between the plaintiff and her supervisor, the alleged harasser.  In response to discovery requests, the plaintiff had produced 850 text messages she had received from her supervisor.  The defendants later learned during the depositions of the plaintiff and her mother that the plaintiff’s mother was in possession of thousands of additional voice mail and text messages that the plaintiff had forwarded to her mother for safekeeping because she was running out of storage space on her computer.  In response to a subpoena, the plaintiff’s mother then produced 5,748 text messages, a number that dwarfed the 850 plaintiff had produced in the case.

The Court granted the defendants leave to depose the plaintiff for three additional hours to examine her with respect to the newly produced text messages.  Based on the plaintiff’s deposition testimony about the manner and completeness of her production of the text messages, the defendants took the position that they could not rely on the plaintiff’s representation that she had produced all of the ESI documenting her communications with her supervisor.  The defendants, therefore, moved to compel a forensic examination of the plaintiff’s electronic devices to search for unproduced ESI and attempt to recover any relevant ESI that may have been deleted.

Magistrate Judge Mason denied the motion to compel holding that “the requested forensic inspection of plaintiff’s electronic devices was not proportional to the needs of the case, especially considering plaintiff’s privacy and confidentiality interests in her personal devices.”  Noting that forensic inspection is not a routine right of discovery but rather an extraordinary remedy requiring a showing of good cause, District Court Judge Alonso affirmed Judge Mason’s ruling under Fed. R. Civ. P. 26 (b)(1) holding that defendants had not demonstrated that the contents of plaintiff’s devices were likely to go “to the heart of [the] case” (such as in trade secret cases) nor provided any compelling reason to believe that the plaintiff’s production was incomplete.  In so holding, Judge Alonso noted that the defendants had not requested to search for any specifically identified text messages with particular content shown to have existed at one point and that, if found, would conclusively resolve a contested issue in the case.  Since the issue of whether the forensic inspection might recover any lost or deleted ESI appeared to be little more than speculative, the Court found such an examination to be disproportionate when weighed against the plaintiff’s privacy interests.

 This case underscores that a party must show good cause to obtain a forensic examination of all the information on a person’s electronic device when it believes an opposing party’s production of ESI to be incomplete.  Good cause can be established by evidence that an opposing party’s search for relevant ESI was unreasonable and critical information was not produced.  Good cause also can arise from intentional spoliation where the remedy is part of a sanction. See Cohn v. Guaranteed Rate, Inc., No. 1:14-cv-9369, 2016 BL 408763 (N.D. Ill. Dec. 8. 2016).  Absent such a showing, as this case demonstrates, a Court likely would find a forensic examination to be disproportionate under Fed. R. Civ. P. 26 (b)(1).

 

Preservation Of ESI Is Still Paramount Under New Rule 37(e)

Magistrate Judge Paul M. Warner recently decided that sanctions, including attorney’s fees and costs, were appropriate as a result of evidence of a defendant’s failure to preserve relevant electronically stored information (“ESI”) after receiving a preservation letter from the plaintiff in a wrongful death action.

At issue in McQueen v. Aramark Corp., 2016 U.S. Dist. LEXIS 43958 (D. Utah, Nov. 29, 2016) was the discovery of certain work orders which the defendant’s employee had testified existed.  Following this testimony, and in response to a request for the production of the work orders from the plaintiff, the defendant stated that the work orders did not exist and submitted a declaration from its employee that he had been mistaken in his deposition.  The plaintiff then filed a motion to compel, citing the defendant’s employee’s deposition testimony and other evidence demonstrating the likely existence of the work orders.  The Court requested a “detailed explanation” from the defendant regarding the steps it had taken to preserve evidence after receipt of the plaintiff’s pre-suit preservation letter, as well as the discrepancy between the other evidence submitted by the plaintiff and the defendant’s statement that the work orders at issue “do not exist and have never existed.”  In response, the defendant conceded that ESI and other physical documents had been destroyed because it failed to relay necessary preservation instructions to the appropriate individuals.

Judge Warner analyzed whether spoliation sanctions were appropriate under the amended Federal Rule of Civil Procedure 37(e).  While the defendant argued that the work orders were not relevant to the litigation, the Court found it was unable to determine relevance because the defendant had not taken reasonable steps to preserve the ESI and physical documents at issue and no appropriate substitute existed to replace the ESI and physical documents.  The Court concluded that while the defendant acted with gross negligence, it did not act with the intent to deprive the plaintiff of the information’s use in the litigation.  The Court refused to grant the plaintiff’s request that the jury be specifically instructed regarding a presumption or inference regarding the destruction of those materials.  Instead, the Court ordered that the parties be permitted to present evidence to the jury regarding the spoliation of the work orders and ESI and to argue any inferences they wanted the jury to draw.  The Court also awarded the plaintiff attorney’s fees for bringing and arguing its Motion to Compel.

This case once again underscores the importance of notifying the appropriate individuals of pending or threatened litigation as soon as possible, as well as documenting all of the preservation efforts taken.  It may very well be that the defendant in this case could not have anticipated that the work orders at issue would become relevant to the case.  However, if the plaintiff placed the defendant on notice of litigation, the defendant was under an immediate obligation to take reasonable steps to ensure that ESI and physical documents were preserved.

Cooperation Imperative In Searching Electronically Stored Information

Senior United States District Judge Terrence McVerry granted a party’s motion to compel the opposing party to meet and confer regarding search terms to apply to electronically stored information.

In Pyle v. Selective Ins. Co. of Am., 2016 U.S. Dist. LEXIS 140789 (W.D. Penn. September 30, 2016), Plaintiff Pyle brought claims against former employer, alleging disability and age discrimination in violation of the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Pennsylvania Human Relations Act.  In discovery, the plaintiff served a document request on the defendant for “all emails, correspondence, memorandum, and/or other documents” from a number of the defendant’s employees.  In response, the defendant produced some documents and advised the plaintiff that “[i]n addition to the documents produced, additional email archives for various Selective employees have been retrieved.”  The defendant requested that the plaintiff agree on appropriate search terms to locate relevant documents from the emails that had been collected.  When the plaintiff refused, the defendant again asked the plaintiff for a “suggested list of search terms…so that we can agree on a common set of terms so that electronic records [Selective] has gathered can be searched for relevance.”  After the plaintiff again refused, the defendant brought a motion seeking an order compelling plaintiff to provide ESI search terms.

The Court found that the plaintiff’s argument “borders on being incomprehensible.”  Focusing on the Federal Rules of Civil Procedure’s meet and confer requirements and the “well settled” principle that electronic discovery should be party-driven, the Court granted the defendant’s motion and required the plaintiff to meet and confer regarding potential ESI search terms.

This case emphasizes the importance of cooperation in the electronic discovery process.  In particular, a party requesting ESI should be prepared to work cooperatively with its opponent to determine agreed search parameters.

Experts Praise Ralph Losey’s New Book: E-DISCOVERY FOR EVERYONE

edisc4everyone_front-cover-bigJackson Lewis’ National e-Discovery Counsel, Ralph Losey, has just released a new book, e-Discovery for Everyone. Experts are praising e-Discovery for Everyone as an important book for both pleasure and reference. As the title suggests, Ralph’s book is written for everyone with an interest in e-discovery. It is classified by the ABA as an introductory to intermediate level book. There are nineteen easy-to-read Chapters in 207 pages. Each Chapter is a stand-alone essay derived from Ralph’s personal blog. Ralph tried to make it a fun-read that will hold your interest and still have plenty of meat on the bones, including important chapters on the new rules, proportionality and ethics.

e-Discovery for Everyone can be purchased online directly from the publisher, the ABA. You can also call ABA Customer Service at 800-285-2221 Monday-Friday between 9:00 AM and 6:00 PM ET.

Foreword by Judge Paul Grimm

Judge_Paul_GrimmRalph Losey was honored to have Judge Paul Grimm write the Foreword to his book. In it Judge Grimm talks about the whole subject of e-discovery, new rules, digital explosion, the Bar, TAR, et al. The first half of Judge Grimm’s Foreword sets the stage for his two closing paragraphs about the book itself.

Enter Ralph Losey and the ABA with e-Discovery for Everyone, an introduction to e-Discovery that avoids over-technicality, without being substantively superficial, and manages to be interesting and at times even amusing. Ralph has been writing his e-Discovery Team blog since 2006, and e-Discovery for Everyone assembles many of his most helpful and recent blog posts in a collection that will be of value to newcomers to e-Discovery as well as seasoned practitioners. The book is written in a conversational style, and is divided into short chapters easily read in a relatively short sitting. Sprinkled throughout are very helpful references to cases, secondary sources and other materials that give the book depth beyond its relative brevity. A quick look at the table of contents shows an impressive inventory of the most important e-Discovery topics of the day: new methods of search and review, a discussion of the 2015 amendments to the Federal Rules of Civil Procedure, practical advice on litigation holds, how to evaluate the reasonableness of e-Discovery vendor bills, the advantages of transparency in selecting how to design a search for digital information, why cooperation during the e-Discovery process is essential to success, ethical issues associated with e-Discovery, and how to confront and control e-Discovery abuses.

e-Discovery for Everyone provides a welcome addition to the literature on e-discovery. Like a well-designed website, it is easy to navigate, informative, interesting, comprehensive without being overwhelming, and enjoyable.

What Other Experts Are Saying About Losey’s New Book

Facciola_shrugJohn M. Facciola, Chief Magistrate Judge for the United States District Court for the District of Columbia (retired); Adjunct Professor of Law, Georgetown Law School, had this to say about Losey’s new book.

Litigating lawyers must envy estate lawyers. When was the last time the rule against perpetuities changed? Since, these days, all discovery and litigation is electronic discovery and litigation, the poor litigator has to absorb technological and rules changes, new cases, and the very definition of their competence and ethical obligations. It is a good thing they have Ralph Losey and this collection of his blog posts.

Ralph is utterly fearless and, unlike too many of his colleagues, welcomes technological changes and insists that their often drastic implications for the courts, the lawyers, and their society be considered soberly and realistically. He is as comfortable with the insights of social psychology, philosophy and mathematical reasoning as he is with metadata. And, the man refuses to be dull. His posts are full of song lyrics, truly corny jokes, and clever drawings; the man insists that we enjoy his work and our own and that we not be intimidated by our own future. Over the years he has forced us to look beyond our narrow concerns and try to see where all this change is taking us. He is a welcome man and this is a most welcome book.

ronald-hedgesRonald J. Hedges, Senior Counsel for Dentons (retired U.S. Magistrate Judge) has also reviewed e-Discovery for Everyone.

Ralph Losey is an acknowledged “early starter” yet continuing thought leader in EDiscovery and all the complexities that go into that phrase. Anything he does is well worth the read!

ken_withersKenneth J. Withers, Deputy Executive Director, The Sedona Conference®, provided a review in his typical erudite and highly original fashion.

I read the whole book yesterday afternoon and I think it’s a great anthology. I’d recommend it to anyone designing a training program for lawyers (and non-lawyers) or any individual who wants a solid introduction to the field.

If there were an award in the legal profession for ‘most creative iconoclast,’ I’d be honored to present it to Ralph Losey for his short, entertaining, and provocative lessons in e-discovery. In 19 easy-to-read essays, Ralph adroitly weaves pop culture, science, technology, and astute case law analysis into the warp and weft of ethical responsibility and justice. All of us should wear the resulting cloth every day in our practice, if for no other reason than it itches, which is a good thing.

Jason R. BaronJason R. Baron, Drinker Biddle & Reath LLP, Information Governance and eDiscovery Group, who was previously the Director of Litigation at the U.S. National Archives and Records Administration, had this to say about e-Discovery for Everyone.

Ralph Losey has done it again: he is the Thomas Paine of e-discovery, with another excellent set of essays making the case that lawyers should follow “common sense” principles when dealing with the brave new world of electronically stored information.   These principles include, first and foremost, litigators working as a team with e-discovery lawyers and outside specialists to ensure that discovery obligations are met.  Second, they include lawyers recognizing that the newly amended Federal Rules of Civil Procedure emphasize that opposing counsel are expected to work cooperatively together to narrow areas of disagreement, and that lawyers should keep in mind that discovery should be proportional to the matters at stake in litigation. And third, lawyers should maintain competence on technical subjects such as how to search through large volumes of digital data.   This book is an easy (and fun to read) introduction to some of the most important topics in e-discovery.  There is no better “explainer-in-chief” of e-discovery writing today!

mark_williamsMark R. Williams, CEO & President of Kroll Ontrack, Inc., also provided a review.

Attorneys can no longer claim to be confused by e-discovery! This book is a tremendous resource that makes e-discovery accessible for any legal professional, no matter past experiences with technology and the law – this is a “must-have” for any professional in the e-discovery industry, or trying to learn the industry.

John Tredennick

John Tredennick, Founder, CEO of Cayalyst Repository Systems, and past Chair of an ABA Law Practice Management Section, had this to say.

Losey is a master at making e-discovery accessible and even fun. 

Conclusion

ralph_smilinge-Discovery for Everyone is Ralph’s fifth book on e-discovery. His first four books were:

Adventures in Electronic Discovery (West Thomson Reuters, 2011).

Electronic Discovery: New Ideas, Trends, Case Law, and Practices (West Thomson Reuters, 2010).

Introduction to E-Discovery: New Cases, Ideas, and Techniques (ABA 2009).

e-Discovery: Current Trends and Cases (ABA 2008).

All of Losey’s prior books are still in print and can be ordered too. Ralph donates all royalties from his books to charity.

Anyone interested in this new field of law could benefit from reading Ralph’s new book. You can buy e-Discovery for Everyone online directly from the ABA. (It will not be on Amazon for another nine-months.) You can also call ABA Customer Service at 800-285-2221 Monday-Friday between 9:00 AM and 6:00 PM ET. They have copies of the book and are ready to ship. ABA members get a nice discount! 

Ralph welcomes any questions or comments you may have. He can be reached at Ralph.Losey@JacksonLewis.com.

Court Discusses The Obligation To Preserve Text Messages Under New Rule 37(e)

In a recent decision from the Western District of North Carolina, the Court discussed the importance of preserving text messages from accidental destruction due to a loss of a party’s cell phone.  In Shaffer v. Gaither, 2016 U.S. Dist. LEXIS 118225 (W.D.N.C. Sept. 1, 2016), the plaintiff brought sexual harassment claims against her former employer under Title VII of the Civil Rights Act.  The defendant employer moved to dismiss the action when it was discovered that relevant text messages that were on the plaintiff’s cell phone had been destroyed.  The plaintiff claimed that her cell phone had been accidentally destroyed when she dropped it in the bathroom in May 2014, well after both she and her counsel knew of the impending litigation.  She sent the broken phone and SIM card to her insurance company, and therefore no longer had access to the content of the relevant text messages.

The Court considered the amendments to Federal Rule of Civil Procedure 37(e), which states that the duty of a party to preserve electronically stored information (“ESI”) arises when litigation is “reasonably anticipated” and the loss of ESI is sanctionable when “reasonable steps to preserve” are not taken and such information cannot be restored or replaced through additional discovery.  The Court held that the plaintiff had not taken reasonable steps to preserve the relevant text messages, as the text messages only resided in the plaintiff’s cell phone, even after litigation was anticipated.  The Court stated that the plaintiff and her counsel should have taken steps to protect against destruction of the texts, such as printing the texts out, making an additional electronic copy of the texts, cloning the cell phone, or even placing the cell phone in the possession of her attorneys and getting a new personal phone for the plaintiff.

Despite the plaintiff’s failure to take reasonable steps under Rule 37(e), the Court declined to dismiss her case because the sanction of dismissal was not the sanction of first resort.  Rule 37(e)(1) and 37(e)(2) allow courts to take no greater action than necessary to cure the prejudice from the loss of the ESI, and there was no evidence of intentional spoliation.  The Court believed that the defendant may be able to cure the prejudice through testimony, as it was believed that several individuals read the relevant text messages before they were destroyed.  The Court nevertheless reserved the right to make a spoliation instruction at the trial if necessary to correct the prejudice from the destruction (that is, an instruction to the jury that they should infer the text messages contained prejudicial information for the plaintiff).

It is crucial to take reasonable steps to preserve ESI as soon as litigation is reasonable anticipated.  This decision makes it clear that relying on individuals to preserve relevant text messages in their personal cell phones is not sufficient under Rule 37(e) to satisfy this obligation as text messages may be lost through accidental destruction of the phone and its contents.  If the party is aware of relevant text messages, they should print out the text messages and preserve the copies or make an additional electronic copy of the text messages to ensure they are complying with their ESI preservation obligations.

Court Sanctions Both The Defendants’ CEO And Defendants’ Counsel For Discovery Misconduct

District Judge Katherine Polk Failla imposed significant sanctions in Arrowhead Capital Finance, LTD v. Seven Arts Entertainment, Inc., 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016), following Defendants’ repeated failure to cooperate in discovery and comply with the terms of her previously issued discovery orders. 

 The Backdrop.  Plaintiff sued Defendants in 2014 seeking to enforce an incontestable judgment that it had no practical means of enforcing because all of the assets held by the debtor had been sold to Defendants.  Defendants filed a motion to dismiss, arguing the Court lacked personal jurisdiction.  The Court denied the motion pending discovery.  In a letter dated September 21, 2015, Plaintiff claimed that Defendants and their attorney had engaged in various forms of misconduct during discovery.  Specifically, Plaintiff alleged that Defendants had puffed up their discovery with a nonresponsive document production, while simultaneously refusing to produce responsive documents.  Plaintiff also alleged that the discovery responses were incomplete and these issues were exacerbated by Defendants’ failure to produce key witnesses for deposition.  The Court held a conference to address Plaintiff’s concerns.  During the conference, Defendants’ counsel acknowledged that he had not reviewed the discovery responses and merely forwarded the materials he received from his client, Defendants’ CEO.

 The Court’s First Step.  Based on information received during a conference with the parties, the Court stated it had no confidence that Defendants were meeting their discovery obligations.  The Court ordered Defendants’ CEO to personally appear before the Court and testify concerning the alleged discovery misconduct following Plaintiff’s opportunity to depose multiple witnesses.  The Court also asked Plaintiff’s counsel to provide a list of the responsive documents Defendants had failed to produce and ordered Defendants to produce the documents identified by Plaintiff.  Nevertheless, Defendants continued to refuse to produce witnesses for deposition or produce the required documents.

 The Contempt Hearing.  Because Defendants’ CEO appeared to be directing Defendants’ counsel not to produce responsive documents or key witnesses, Plaintiff move for sanctions.  Defendants’ CEO testified that his offices were “paperless” and all records were stored on a server maintained by a third party that had destroyed the records in issue–after Defendants failed to pay their bills.  The CEO also cast blame on various staff people to whom he had purportedly delegated the task of compliance with the Court’s order.

 The Court Was Not Amused.  The Court concluded that Defendants were willfully making misrepresentations to the Court, cancelling depositions, and violating the Court’s orders for the purpose of withholding information from Plaintiff.  As such, the Court held that Defendants had forfeited their jurisdictional arguments through non-compliance with the Court’s discovery order and stated that the jury would receive a spoliation instruction, as appropriate, on any claims submitted to the jury.  Defendants’ CEO also was ordered to pay Plaintiff’s costs in association with bringing its motions in regard to discovery misconduct and was ordered to retain separate legal counsel to conduct a thorough review of Defendants’ files and determine if any additional responsive information remained to be produced.  This counsel also would represent Defendants in any future discovery hearings.   Defendants’ counsel, who was deemed complicit in the violations, also was ordered to pay a portion of Plaintiff’s costs. 

This decision reinforces that counsel may not blindly follow the instructions of their clients and have a duty to ensure that good faith efforts are taken to comply with a parties’ discovery obligations.

 

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