Key Insight: Discovery is not disproportionate just because you say so. Insufficient privilege log.
Nature of Case: Class action involving alleged improper classification of independent contractor status.
Electronic Data Involved: Production of emails in response to Plaintiffs’ requests.
Keywords: Produce all documents responsive to Plaintiff’s search terms. Duplicative and not proportional.
First Fin. Sec., Inc. v. Freedom Equity Grp., LLC, No. 15-cv-1893-HRL, 2016 WL 5870218 (N.D. Cal. Oct. 7, 2016)
In this case, the court imposed two permissive adverse inference instructions against Defendant at trial. The first adverse inference was ordered pursuant to FRCP 37(e)(2) for Defendant’s failure to preserve text messages. The second was imposed pursuant to FRCP 37(b)(2) (authorizing the court to “remedy the violation of a discovery order with a ‘just’ sanction”), upon the court’s conclusion that Defendant’s failure to produce certain native-format data, despite being repeatedly ordered to do so, resulted in substantial prejudice to the Plaintiff. In so concluding, the court rejected the argument that it was required to find bad faith, reasoning instead that it could impose such a sanction upon a determination of gross negligence.
Key Insight: whether party can be forced to use TAR v. search terms
Nature of Case: product liability
Electronic Data Involved: email and documents
Keywords: viagara, forced TAR
Pyle v. Selective Ins. Co. of Am., No. 2:16-cv-335, 2016 WL 5661749 (W.D. Pa. Sept. 30, 2016)
In this case, the court granted Defendant’s motion to compel Plaintiff’s cooperation regarding search terms intended to identify responsive emails requested by the plaintiff. Notably, in response to Defendant’s motion, Plaintiff’s counsel argued that Defendant had “cited no authority to support its request, nor identified any burden that it face[d] in locating and producing the requested emails.” Reasoning that Plaintiff’s argument “totally misses the mark” the court concluded that the parties must confer:
Key Insight: NDA adequately protects confidential and/or privileged information during forensic examination
Nature of Case: employment discrimination
Electronic Data Involved: email
Keywords: forensic examination
Key Insight: no adverse inference for inadvertent destruction of evidence
Nature of Case: Fair Debt Collection Practices Act (FDCPA)
Electronic Data Involved: ledgers
Keywords: condo association
First Niagara Risk Mgmt., Inc. v. Folino, —F.R.D.—, 2016 WL 4247654 (E.D. Pa. Aug. 11, 2016)
In this case, the court addressed the parties’ disagreement regarding a proper scope of discovery and Plaintiff’s related motion to compel the search of Defendant’s electronic devices, to be conducted by an independent e-Discovery vendor utilizing search terms proposed by the plaintiff. Upon finding the requested information relevant and following consideration of each of the proportionality factors identified in recently amended Rule 26(b)(1), the court granted Plaintiff’s motion to compel.
Key Insight: Sanctions for delays caused by bad faith reliance on a vendor for a small production.
Nature of Case: discovery delays
Electronic Data Involved: archived e-mail
Keywords: discovery delay, discovery vendor, small production, bad faith
Key Insight: If a party claims no responsive documents are found, they must provide a response that indicates the steps taken to determine that no responsive documents exist
Nature of Case: Prisoner self harm
Electronic Data Involved: E-mails
Keywords: Prisoner, self harm, pro se,
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