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.
Articles Discussing Discovery In Labor And Employment Law Cases.
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.
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.
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.
Federal Court Refuses To Compel Defendant To Produce Non-Responsive Documents That Hit On Agreed Upon Search Terms
A federal court in Texas recently refused to enforce the parties’ discovery agreement with respect to plaintiff’s request that the defendant produce all non-privileged documents responsive to search terms agreed to over email. In BancPass, Inc. v. Highway Toll Admin., LLC, 2016 U.S. Dist. LEXIS 96978 (W.D. Tex. July 26, 2016), the Court addressed a dispute between two companies that provide mechanisms for motorists to pay highway tolls while driving rental cars. In an effort to cooperate on electronic discovery in the case, BancPass and the Highway Toll Administration (“HTA”) negotiated certain search terms that the parties would use in order to locate and produce potentially responsive documents.
Marginal Discovery Disallowed Because It Was Not Proportional To The Needs Of The Case
Under a ruling issued by a federal district court in Arizona (In re Bard IVC Filters Prods. Liab. Litig., 2016 BL 306366, D. Ariz., No. MDL 15-02641-PHX DGC, 9/16/16), the new Federal Rules for discovery allowed the defendant to avoid producing electronically-stored foreign communications in multidistrict litigation over allegedly faulty medical devices.
ESI Lost After Duty To Preserve Had Been Triggered Results In Limited Sanction Under New Rule 37(e)
A federal court in Utah recently applied the newly amended Rule 37(e) and, in doing so, issued relatively limited sanctions following a finding of spoliation.
Federal Court Compels Former Executive to Respond To Extensive Discovery Requests Despite High Cost
A federal court in Pennsylvania recently ordered a former executive to respond to costly and expansive discovery requests in a case where the former executive allegedly set up a competing business in violation of his employment agreement. Although responding to the discovery was expected to be a costly endeavor, the Court in First Niagara Risk Management, Inc. v. John A. Folino (E.D. Penn. August 11, 2016) nevertheless rejected the defendant’s financial hardship argument based on the fact that he recently received $5 million for the sale of two companies to the plaintiff.
A Party May Comply With Rule 34 By Identifying Its Search Parameters As Opposed To Identifying Withheld Documents
According to a recent decision of the U.S. District Court for the District of Kansas, a party may satisfy its obligations under Rule 34 when—in response a demand for the production of documents—the party states how the party limited its search for responsive documents, but does not specifically identify the documents that have been withheld.
Court Rejects Burdensome Argument As It Relates To Litigation Holds
The importance of timely implementing a litigation hold cannot be overemphasized. In Bruner v. American Honda Motor Company, 2016 U.S. Dist. Lexis 62810 (S.D. Ala. May 12, 2016), the plaintiffs, who were involved in an accident involving a 2007 Honda Civic, sought potential e-mails related to airbags installed in Civics during a ten-year span encompassing the model year of the accident vehicle. The defendant argued that under the applicable document retention policies, any such e-mails would have been destroyed after thirty days and, therefore, no such documents existed. The defendant further asserted that it had undertaken a thorough search of its various electronic communication systems and had found no documents.
Unsupported And Exaggerated Assertions Regarding The Burden Of Production Will Not Persuade The Court
By now we’re all familiar with the language recently implemented in the Federal Rules of Civil Procedure, providing employers with some protection against unreasonable demands related to ESI: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B).
Photographs at Depositions?
Depositions generally involve a series of questions and answers between the deponent and counsel. At times, however, counsel may want to use the deposition as an opportunity to have the witness demonstrate a task or record physical characteristics of a witness. Conveniently, nearly all attorneys now carry a camera in their pocket, in the form of their mobile device. When capturing images or video during depositions, counsel must be careful not to violate a right to privacy, or cast them in an offensive manner.
May A Company “Preserve In Place” To Satisfy Its Preservation Obligations
A common question that often arises is whether to physically collect/copy a person’s e-mail account once that person is placed on a litigation hold. Rather than copy the e-mail account, many companies will simply turn off the “auto-delete” function and issue the employee a preservation notice. By doing so, the company is essentially preserving in place. Although some may question this method of preservation, it is no different than if an employee had a box of potentially relevant documents in his office and, rather than make a copy of the box, the employee was instructed to continue to hold the box in his office until further notice. In most situations, this should be sufficient to satisfy a company’s preservation obligations.
Explanation of the Legal Profession’s Remarkably Slow Adoption of Predictive Coding
Well-known predictive coding expert attorney, Maura Grossman, and her husband, noted information scientist, Gordon Cormack, recently began on article in Practical Law magazine with the assertion:
Limiting Plaintiff’s Discovery on Similarly Situated Employees Reasonable, Federal Court Finds
Limiting a plaintiff’s pretrial discovery can be the key to defending an employment discrimination lawsuit. This point was aptly demonstrated in a federal appellate court ruling approving a district court’s denial of wide-ranging discovery and its summary judgment dismissal of an employee’s discrimination suit. Kuttner v. Zaruba, No. 14-3812 (7th Cir. Apr. 14, 2016). However, Judge Richard Posner’s dissent illustrates that judges have widely differing views on the scope of pretrial discovery in discrimination lawsuits.