- July 18, 2023
- Gulfstream Legal
The first half of 2023 has seen significant advancements and noteworthy cases that have shaped the landscape of eDiscovery. Yesterday’s post covered January – March. Today, we’ll cover eDiscovery case law from April – June 2023.
April: Navigating Complex Data Privacy Issues
Data privacy concerns and associated legal challenges took center stage in April:
In re Google Play Store Antitrust Litigation:
In the case of In re Google Play Store Antitrust Litigation, the U.S. District Court for the Northern District of California granted a motion for sanctions against Google for failing to preserve internal Google Chat messages. Google declined to implement a default hold on chat messages for relevant custodians, instead relying on them to ensure preservation. However, Google did not effectively monitor the custodians’ preservation efforts. The court found that Google’s conduct fell short of its document preservation obligations, highlighting evidence of intentional efforts to hide the preservation issues related to Google Chat. As a result, the court ordered Google to cover plaintiffs’ reasonable attorneys’ fees and costs and indicated that further proceedings would be required to determine additional non-monetary sanctions.
In re Diisocyanates Antitrust Litigation:
In the case of In re Diisocyanates Antitrust Litigation, the U.S. District Court for the Western District of Pennsylvania denied a motion to compel Defendants to produce all calendar entries and text messages for certain custodians without applying search terms. The court found that the use of search terms was routine and acceptable, and the Defendants’ search terms and methodologies were not shown to be unreasonable or inadequate. The court emphasized that discovery requests must be proportional to the needs of the case. It highlighted the parties’ agreed-upon stipulated ESI protocol that included using search terms. Judge Hardy concluded that the requested production of calendar entries was disproportionate to the needs of the case and instead suggested that targeted follow-up discovery requests for discernably relevant information would be more appropriate. The court denied the motion to compel and advised the Plaintiffs to issue non-cumulative and specific discovery requests based on the documents already produced.
In the case of Mills v. Steuben Foods, Inc., the U.S. District Court for the Western District of New York denied a motion to compel the Defendants to re-produce their entire document production in a text-searchable format with a production log. The court found that Plaintiff had not specified a different format for production in its requests and that the Defendants’ production was “reasonably usable.” The court cited Federal Rule of Civil Procedure 34, which states that if a request does not specify a form for producing electronically stored information (ESI), the party must produce it in an ordinarily maintained or reasonably usable form. The court determined that Plaintiff had not requested a particular format and that the Defendants’ production, provided in PDF format and searchable using the “Ctrl-F” function, met the requirements of being reasonably usable. The court also ordered the parties to address any technical issues regarding text searchability through good-faith discussions with the assistance of IT professionals. The court concluded that the Defendants’ production log, which provided ranges of Bates numbers, was sufficient for the large document production.
In Flynn v. Love, the U.S. District Court for the District of Nevada addressed a motion to compel Plaintiff to provide labeling and organization to its production of documents after providing a “document dump” to the Defendants. The Plaintiff had offered the Defendants access to 30 banker boxes of documents related to prior litigation, arguing that it fulfilled their discovery obligations. However, the court denied the Plaintiff’s request, stating that the documents lacked organization and a labeling system. The court ordered the Plaintiff to search their files, identify responsive documents, and provide them to the Defendants with proper organization and labeling. When Plaintiff failed to comply, the Defendants filed a renewed motion to compel and motion for sanctions. The court granted the motion to compel, emphasizing that parties cannot dump large amounts of unorganized documents on their adversaries. The court also ordered the Plaintiff to pay the Defendants’ reasonable attorneys’ fees as a sanction. The court warned Plaintiff that further discovery issues could result in the dismissal of the action.
May: Streamlining eDiscovery Processes
Efficiency and cost-effectiveness in eDiscovery processes gained significant attention in May.
Boshea v. Compass Marketing, Inc.:
In the case of Boshea v. Compass Marketing, Inc., the U.S. District Court for the District of Maryland denied a motion in limine to exclude evidence related to an email and its alleged attachment, which had been produced only as a forwarded copy. The court found that the plaintiff had satisfied the prima facie showing required under Federal Rule of Evidence 901 for authenticity, allowing the issue of the document’s authenticity to be submitted to the jury. The dispute arose in a severance pay lawsuit, where the authenticity of an employment agreement was contested. The defendant argued that the forwarded email and attachment were inadmissible due to the inability to produce the original email. However, the court determined that the plaintiff had provided sufficient evidence through witnesses, including the recipient of the forwarded email, to support a finding of authenticity. The court emphasized that its role was not to determine authenticity definitively but to determine whether there was enough evidence for the jury to make that determination.
In the case of TK Elevator Corp. v. Abels, the U.S. District Court for the District of Nebraska ruled on the proportionality of conducting a forensic examination of electronic devices used by a former employee. The plaintiff alleged theft of trade secrets and sought a full forensic inspection of the defendant’s devices to determine if evidence of misappropriation existed. However, the court found that such an extensive examination was not proportional to the needs of the case. Instead, the court ordered a narrowly tailored USB connectivity analysis to determine whether a USB device was used to access and transfer files from the plaintiff’s computer. The court concluded that this approach would provide the necessary information without the intrusive and burdensome nature of a full forensic examination. The parties were instructed to notify the court if further device inspection was required after the connectivity analysis.
In the case of Owen v. Elastos Foundation, the U.S. District Court for the Southern District of New York addressed whether a corporate defendant controlled an employee’s personal Google account for discovery purposes. The employee in question lived and worked in China. The court determined that the defendant did not have possession, custody, or control over the personal Google account and, therefore, could not be ordered to search it. The plaintiffs had not addressed international laws on the issue of control or demonstrated that the defendant could compel the employee’s compliance with a request for the personal account. The court emphasized the importance of considering local laws and the case’s specific circumstances in determining control. Additionally, the court found that the plaintiffs had failed to establish that the personal account was used for conducting the defendant’s business.
Safelite Group, Inc. v. Nathaniel Lockridge
In the case of Safelite Group, Inc. v. Nathaniel Lockridge, the U.S. District Court for the Southern District of Ohio addressed a motion to quash a subpoena seeking the production of a litigation hold notice issued by the former counsel of one of the defendants. The court found that the plaintiff had made a preliminary showing of spoliation, which refers to the intentional destruction of evidence, sufficient to require the production of the litigation hold notice. The defendant, Billingsley, had deleted documents from his personal email account after being advised by his counsel to preserve them. The plaintiff discovered evidence of spoliation when another defendant produced an email thread involving Billingsley’s account that Billingsley himself had not produced. The court determined that the plaintiff had met its burden of demonstrating spoliation based on Billingsley’s admission and the other evidence presented. The court rejected Billingsley’s argument that the deleted documents were unrelated to the allegations and concluded that relevance determinations should not be made by Billingsley, who is not an attorney.
June: Lessons Learned and Future Outlook
June, like the first five months of 2023, offered valuable insights and a glimpse into the future of eDiscovery.
In re Stubhub Refund Litigation:
In the case of In re Stubhub Refund Litigation, the U.S. District Court for the Northern District of California addressed a motion to compel the defendant to produce hyperlinked documents as attachments to the relevant emails, as required by an agreed-upon Electronically Stored Information (ESI) protocol. The court emphasized the importance of ESI protocols in streamlining discovery and held parties accountable to their agreements. The defendant had failed to produce the hyperlinked documents as attachments, violating the ESI protocol. The defendant provided various explanations for the missing documents but did not provide a clear reason for their unavailability. The court ruled in favor of the plaintiffs, granting their motion to compel and ordering the defendant to produce the documents following the ESI protocol. The court also warned that sanctions could be considered if the defendant failed to comply and allowed the defendant to seek a modification of the ESI protocol if necessary.
In the case of FA ND Chev, LLC v. Kupper, the U.S. District Court for the District of North Dakota addressed a motion for a protective order regarding the production of documents. The plaintiffs had discovered many non-substantive documents during their searches for electronically stored information (ESI). They proposed three options to complete the discovery process: sharing the cost of manual review with the defendant, narrowing the search parameters, or producing all the documents with a “Highly Confidential — Attorneys’ Eyes Only” designation to avoid manual review. The defendant rejected these options and filed a motion for sanctions. In response, the plaintiffs sought a protective order to prevent the disclosure of the documents and presented the same three options to the court. The court denied the defendant’s motion for sanctions and partially granted the plaintiffs’ motion for a protective order. The court understood the plaintiffs’ concerns about the cost and burden of manual review and ordered the plaintiffs to produce the documents designated as “confidential” under the existing protective order. This solution allowed the information to be disclosed without additional expense, protected it for use only in litigation, and allowed the defendant’s counsel to access the information for their case. The court deemed the “Highly Confidential — Attorneys’ Eyes Only” designation unnecessary for protecting sensitive information and preventing excessive costs.
Hoehl Family Foundation v. Roberts:
In Hoehl Family Foundation v. Roberts, the U.S. District Court for the District of Vermont addressed a motion to compel the production of metadata that had been altered during the collection and production of documents. The case involved a lawsuit filed by the plaintiff foundation against the defendants, alleging a financial transaction resulted in a total loss and a tax penalty. During discovery, the plaintiff discovered inaccurate or incomplete metadata in the documents produced by the defendants. The defendants explained that changes were made to servers and file organization, resulting in losing original metadata. The plaintiff requested screenshots of the defendant’s drive to identify the source folders, but the defendant refused due to confidentiality concerns. The defendants provided partial screenshots and a file with file paths, but important metadata was still missing, and the documents’ metadata had been altered. The plaintiff filed a motion to compel the defendants to provide the original metadata. The court found that the stipulated discovery order required preserving original formatting, file structure, and metadata unless otherwise specified. The defendants argued that the plaintiff had waived their objections to the metadata, but the court rejected this argument, noting that the plaintiff had promptly raised the issue. The defendants also claimed that producing more metadata would be expensive and unnecessary, but the court disagreed, emphasizing the importance of file-system metadata in accessing and managing documents efficiently. The court concluded that the defendants had failed to meet their discovery obligations and ordered them to provide complete and accurate metadata for the deficient documents identified by the plaintiff.
In Goodale v. Elavon, Inc., the U.S. District Court for the Eastern District of Tennessee addressed whether the defendant had an obligation to preserve certain documents based on the plaintiff’s call to an ethics and compliance hotline. The plaintiff, a former employee, sued the defendant for age discrimination after her termination. The defendant used the volume of outbound calls as a metric to evaluate employee performance and monitored calling activity. The plaintiff’s termination was based on her calls to an American Express automated phone number that violated company policy. After her termination, the plaintiff called a U.S. Bank ethics and compliance hotline, alleging that other employees made similar calls and that she was singled out. She did not mention age discrimination during the call. The plaintiff later filed a charge of discrimination with the EEOC, alleging age discrimination and retaliation for making an internal complaint. During the discovery process, the plaintiff requested the production of physical weekly reports and HR summaries related to her termination. The defendant claimed it conducted a diligent search but did not find any responsive documents, asserting that they were either destroyed or never existed. The plaintiff filed a motion for spoliation sanctions, arguing that the defendant destroyed critical evidence. The court found that spoliation requires the party to have an obligation to preserve the evidence, which arises when there is a notice of relevance to litigation or potential litigation. The court concluded that the plaintiff’s call to the ethics and compliance hotline did not trigger a duty to preserve the documents in question because it did not raise the substance of the claims later filed by the plaintiff. The call did not mention age discrimination or litigation, and the broader ethics investigation that followed did not provide notice of potential age discrimination claims. The plaintiff filed her charge of discrimination with the EEOC well after the defendant’s retention policy expired for the documents at issue. The court denied the plaintiff’s motion for spoliation sanctions, as the defendant was not obligated to preserve the documents under the circumstances. However, the court also denied the defendant’s request for an award of fees and costs, as it found no bad faith or oppressive behavior on the part of the plaintiff.
Recap
The first six months of 2023 witnessed significant developments in eDiscovery case law, highlighting the ever-evolving nature of this field. Legal professionals can gain valuable insights and stay ahead of the curve by analyzing these six months’ notable cases and events. As eDiscovery grows in complexity, it becomes increasingly crucial for practitioners to adapt to emerging trends and leverage advanced technologies to navigate these murky waters.