Below are case law highlights relevant to the continuing evolution of e-discovery and how electronically stored information is handled.
Voom Holdings LLC v. EchoStar Satellite LLC, —N.Y.S.2d—, 2012 WL 265833 (N.Y. App. Div. Jan. 31, 2012)
NY State Court found that a lower Court “properly invoked the standard for preservation set forth in Zubulake v UBS Warburg LLC”, requiring that a litigation hold be put in place once a party “reasonably anticipated litigation”. In applying the “Zubulake Standard”, the Court considered evidence that the Defendant did not implement a litigation hold until after Plaintiff filed suit, even though Plaintiff had made continued efforts to terminate an existing Agreement over an extended period, and instead waited up to four months to suspend automatic deletion of emails. The Court determined that highly relevant emails would have been lost to spoliation, and were found only due to email snapshots that had been taken in connection with other litigation. The Court explained that when a party is on notice of a credible probability that it will become involved in litigation a reasonable anticipation of litigation is created, and therefore sanctions are appropriate when subsequent steps to prevent spoliation are not taken.
Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375-PMP-VCF, 2012 WL 2342928 (D. Nev. June 20, 2012)
Nevada Court granted Defendant’s motion to compel production of contents of Plaintiff’s Facebook and MySpace accounts for last 5 years for review and identification of “discoverable” materials by opposing counsel. Plaintiff had alleged personal injury resulting from a car accident and resulting declining quality of life. Initially Defendant had obtained wall messages and pictures from Plaintiff’s Facebook account prior to seeking formal discovery and used it to refute Plaintiff’s claim of decreased quality of life after the accident. After the Plaintiff changed her account settings to make her profile private and therefore inaccessible to Defendant, Defendant filed a formal request for information. When Defendant responded by providing a limited and heavily redacted sample of the information that had been previously available online, Defendant requested the Court investigate whether Plaintiff had complied with discovery obligations. The Court concluded that this type of information was relevant since it evidenced Plaintiff’s physical and social capabilities, and therefore negated Plantiff’s claim that her account information was irrelevant. The Court acknowledged that litigation should not permit an open public display of Plaintiff’s life and it must balance the Plaintiff’s personal interests, but ordered Plaintiff to provide all information from her MySpace and Facebook accounts since 2007.
GOOD FAITH STANDARD
Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., No. 8:10CV365, 2012 WL 1852048 (D. Neb. May 18, 2012)
Court ordered monetary sanctions, including payment of the costs of a forensic examination in response to Plaintiff’s allegation that Defendants were not participating in discovery in good faith. As a result of Court-ordered forensic examination of Defendant’s computer equipment, it was discovered that Defendant had discarded a relevant server containing thousands of previously unproduced documents containing relevant keywords, which they had previously claimed only contained two documents. Plaintiff claimed that Defendants acted in bad faith, retaking possession of relevant hardware in an effort to prevent production of relevant information pursuant to a subpoena.
D’Onofrio v. Borough of Seaside Park, No. 09-6220 (AET), 2012 WL 1949854 (D.N.J. May 30, 2012)
Court held waiver of privilege when Defendants’ efforts to preclude production of privileged documents came into question and were ultimately found to be inadequate. The decision relied on Fed R. Evidence 502(b):
(1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving the party of its error.
The Court found that although Defendants initial efforts to prevent disclosure were found to be reasonable (evidence showing a partner had asked a clerk to separate the privileged and non-privileged documents), subsequent red flags indicating that something was “profoundly awry with their document production and privilege review” failed to compel them to take adequate subsequent measures to ensure privileged documents had been not been produced. (The production CD had been recalled three times due to unrelated internal errors – followed by internal audits that time and again failed to catch the obvious error.)
Pippins v. KPMG LLP, No. 11 Civ. 0377 (CM)(JLC), 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011)
The Southern District Court declined to enforce a “Proportionality Test” to preservation, denying Defendant’s motion for a protective order. The Court found that, “until a more precise definition is created by rule,” prudence favors retaining all relevant materials. (citing Zubulake IV, 220 F.R.D. at 218). The Court found that the Defendants had failed to cooperate adequately with Plaintiffs to allow them to “propound targeted requests” in order to reduce the cost of production and encouraged the parties to meet and confer in order to reach an agreement on appropriate sampling. The Court further applied its previous findings in Orbit One Communications, holding that a proportionality standard “may prove too amorphous to provide much comfort to a party deciding what files it may delete or backup tapes it may recycle.” Orbit One Commc’ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 436 (S.D.N.Y.2010).
PROCESS FOR IDENTIFYING RESPONSIVE DOCUMENTS
Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012)
Magistrate Judge Andrew Peck approved the use of computer-assisted review of ESI by parties. The Court addressed how the technology works and benefits it provides. Hailed as the first opinion where a Court recognizes that Predictive Coding is an “acceptable way to search for relevant ESI in appropriate cases”, this case has caused a flurry of speculation among firms, eDiscovery vendors and companies engaged in potential litigation regarding the acceptability and defensibility of the use of Predictive Coding in court. The Court specifically addressed a need for joint cooperation and transparency throughout the review process to ensure accuracy, specifically for large volume ESI cases.
Complete Timeline for Da Silva Moore Motions/Orders as follows:
- February 9, 2012: Magistrate Judge Peck Issues Written Opinion Addressing Computer-Assisted Review. Use of Predictive Coding approved over Plaintiff’s objection. (signed and Ordered Feb 22, 2012). PDF
- February 22, 2012: Plaintiff’s Rule 72(a) Objection to Magistrate’s Discovery Rulings. PDF
- March 7, 2012: Defendant’s Opposition to Plaintiffs’ Rule 72(a) Objection to February 8th Rulings. PDF
- March 9, 2012: Plaintiffs write letter to Judge Andrew Carter asking for leave to file a reply to Defendant’s Response. PDF
- March 13, 2012: District Court Judge Andrew Carter grants Plaintiff’s request to submit additional briefing on their objections to the ruling. [See March 9th Letter]
- April 26, 2012: Judge Carter denies Plaintiffs’ objections and upholds Judge Peck’s orders approving use of Predictive Coding, finding the rulings to be “well-reasoned”. PDF
- May 14, 2012: Plaintiff’s submit Brief Amicus Curiae in support of motion for Recusal or Disqualification. PDF
- May 15, 2012: Motion is Denied. PDF