Key Insight: While privilege logs are not explicitly required when claiming privilege, they are the best way to properly assert attorney-client privilege
Nature of Case: Contract dispute
Electronic Data Involved: Electronic documents generally
Keywords: privilege log, website, servers, car,
Rowan v. Sunflower Elec. Power Corp., No. 15-cv-9227-JWL-TJJ, 2016 WL 3743102 (D. Kan. July 13, 2016)
In this case, the court addressed, among other things, the sufficiency of Defendant’s objections to Plaintiff’s Requests for Production and in particular its compliance with the new requirements of amended Fed. R. Civ. P. 34, effective as of December 1, 2015. Upon review of the objections and Defendant’s statements of information withheld (as expressed by Defendant’s identification of its search parameters), the court concluded that Defendant’s responses were sufficient and counseled Plaintiff to make additional inquiries in future discovery to the extent he desired additional information.
Key Insight: self-authentication
Nature of Case: Child Pornography
Electronic Data Involved: social media, and facebook chat
Keywords: must be authenticated through extrinsic or circumstantial evidence under Federal Rule of Evidence 901
Key Insight: all counterclaims dismissed and attorneys’ fees paid for willful contempt
Nature of Case: misappropriation of trade secrets
Electronic Data Involved: computer files
Keywords: severe sanctions
Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, No. 2685-11, 8393-12, 2016 WL 4204067 (T.C. July 13, 2016)
In September 2014, the court approved Petitioners’ use of predictive coding to identify potentially responsive and privileged data contained on two backup tapes, despite Respondent’s objection that the technology was “unproven.” (Read a summary of that opinion here.) At that time, the court indicated that Respondent could move to compel additional discovery in the event he believed that Petitioners’ response was insufficient. Accordingly, after Petitioners denied Respondent’s request for production of additional documents containing certain specified search hits, Respondent moved to compel. Concluding that Petitioners’ reliance on predictive coding satisfied the requirement for a “reasonable inquiry,” the court denied the motion.
Key Insight: authenticating social media posts and doing timely social media investigations
Nature of Case: Criminal
Electronic Data Involved: social media posts
Keywords: Facebook, social media posts, authentication
Key Insight: Plaintiff failed to respond to discovery requests. Plaintiff also used data wiping software hours before turning computer over for forensic examination. Defendant granted default judgment.
Nature of Case: Repossession/Ownership
Electronic Data Involved: Files on Computer
Keywords: default judgment, contempt, data wipe
Key Insight: Responding party’s ability to choose search methods is not above rule of proportionality.
Nature of Case: Breach of Contract/Breach of Fiduciary Duty Action
Electronic Data Involved: Personal and business electronic devices
Keywords: “search criteria” “access[ability]” “uncovered evidence” “limit[ing] searches” “shielding” “Sedona”
Key Insight: allowing additional discover re topics discussed during deposition
Nature of Case: improper termination
Electronic Data Involved: documents and emails
Keywords:
Identified Local Court Rule(s): 37.1, 37.3
Hyles v. New York City, 10 Civ. 3119 (AT)(AJP) (S.D.N.Y. Aug. 1, 2016)
In this case, the court addressed the question of whether the City could be “forced” to use technology assisted review (predictive coding) to identify discoverable information when the City itself preferred to use keyword searching. “The short answer [was] a decisive ‘NO.’”
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