2020 – Page 4 – Electronic Discovery Law

US EEOC v The George Washington University (D.D.C. 2020)

Jun 26 2020

Key Insight: Defendant was ordered to produce non-privileged emails responsive to RFP’s. Linear reivew proposed by Defendant wasn’t necessary and other paths existed. Concerns that potential production of privileged information was not enough to justify withholding. Defendant claimed a document by document review was needed, but court believed claw back provisions would be sufficient.

Nature of Case: employment discrimination

Electronic Data Involved: Email

Keywords: review process, 502, privilege

View Case Opinion

Lawson v. Spirit Aerosystems, Inc. (D. Kan. June 18, 2020)

Jun 18 2020

Key Insight: Cost shifting of the TAR costs to Plaintiff was warranted based on an analysis of the proportionality factors. Plaintiff was warned to narrow his discovery multiple times, continued to demand overbroad criteria for TAR, was aware of the potential costs of TAR, and was aware the discovery he sought led to largely non-responsive documents. Moreover, Defendant produced responsive documents by conducting its own search and production of documents outside of the TAR process.

Nature of Case: Breach of Contract, Non-Compete

Electronic Data Involved: Electronic Documents Generally

Case Summary

Lawson v. Spirit Aerosystems (Kansas, 2020)

Jun 18 2020

Key Insight: When plaintiff was allowed to dictate defendant’s electronic discovery process, cost shifting to plaintiff is appropriate when electronic discovery performed was not proportionate to the case

Nature of Case: Employment non-compete agreement

Electronic Data Involved: Electronic records

Keywords: Cost shifting, technology assisted review, TAR, aerospace

View Case Opinion

Optronic Techs., Inc. v. Ningbo Sunny Elec. Co. (N.D. Cal. June 1, 2020)

Jun 01 2020

Key Insight: Sanctions were warranted because counsel failed to adequately supervise Defendant’s discovery responses. While counsel is not required to personally conduct or directly supervise a client’s discovery collection and review process, they must make a reasonable effort to ensure the client produces all response documents. It is not sufficient to only provide guidance on how to search for documents without following up on whether the guidance was followed and what steps were actually taken.

Nature of Case: Antitrust

Electronic Data Involved: Electronic Documents

Case Summary

Optronic Techs., Inc. v. Ningbo Sunny Elec. Co. (N.D. Cal., 2020)

Jun 01 2020

Key Insight: Counsel must be involved with discovery to certify process followed. Counsel’s lack of involvement warranted sanctions in this case.

Nature of Case: Antitrust

Electronic Data Involved: Various ESI

Keywords: sanctions, certification

View Case Opinion

Bolding v. Banner Bank (W.D. Wash. 2020)

May 22 2020

Key Insight: The plaintiffs, current and former mortgage/residential loan officers of defendant, filed a motion for spoliation sanctions and entry of default judgment against defendant based on the failure to preserve and intentional destruction of email accounts and calendar data. The court found: (1) the ESI was relevant to the claims in the lawsuit; (2) defendant breached its duties by intentionally destroying ESI after learning that employees had accused defendant of not paying overtime and after being threatened with a lawsuit, and even after the lawsuit was filed and formal requests for production were received, it paid to order the destruction of additional backup tapes; and (3) the evidence is irretrievably lost. The court declined to enter a default judgment, concluding “[t]he availability of less drastic sanctions that have the ability to mitigate the damage caused by defendant’s egregious destruction of evidence is a powerful factor that militates against imposing dispositive sanctions.”

Nature of Case: Wage and Hour Class Action

Electronic Data Involved: Email and calendar accounts

Case Summary

Bolding v. Banner Bank (W.D. Wash. May 22, 2020)

May 22 2020

Key Insight: Defendant deleted backup tapes after litigation hold notice issued. Spoliation occurred, but no default judgment

Nature of Case: class-action employment

Electronic Data Involved: Backup tapes

Keywords: sanctions, backup tapes, destruction

View Case Opinion

Crossman v. Carrington Mortg. Servs., LLC, (M.D. Fla. May 4, 2020)

May 04 2020

Key Insight: Defendant moved to compel social media discovery from plaintiff. The court considered plaintiff’s objections based on relevancy, privacy, and vagueness. Plaintiff did not assert a proportionality argument. The court found that the discovery was relevant – “common sense dictates that information in [plaintiff’s] social medial . . . relates to her contemporaneous mental and emotional states and therefore relates to the injuries she claims she suffered at the hands of [defendant], including loss of enjoyment of life.” As to privacy, a confidentiality agreement suffices to protect plaintiff’s interests. As to vagueness, plaintiff’s counsel can “reasonably and naturally” interpret the requests in view of the claims and defenses through communication with opposing counsel. Lastly, an award of expenses was unwarranted since “reasonable minds can differ on the dispute.”

Nature of Case: Employment Discrimination

Electronic Data Involved: Social Media

Case Summary

Javo Beverage Co. Inc. v. California Extraction Ventures, Inc. (S.D. Cal. 2020).

Apr 29 2020

Key Insight: The court granted defendant’s motion to compel production of filepath information, but allowed defendant to object to producing discrete filepath information if defendant can articulate a good faith basis for the objection, including irrelevance as to time or scope, or if the filepath data is misleading. If any filepath data is not readily accessible, the parties must confer and attempt to reach a cost-effective resolution prior to seeking the court’s involvement. The court also confirmed the parties’ mutual understanding that they are obligated to “preserve ephemeral, deleted, and other related kinds of data where counsel reasonably suspects such data is relevant” to the litigation.

Nature of Case: Trade secret misappropriation

Electronic Data Involved: ESI generally

Case Summary

Corker v. Costco Wholesale (W.D. Wash. 2020)

Apr 27 2020

Key Insight:

Electronic documents should be produced in the form it is ordinarily maintained or in a reasonably useable form. PDF images of a spreadsheet are not a reasonably usable form due to the functional limitations. While they are readable and searchable, they cannot be sorted or filtered as an original spreadsheet can be. Spreadsheets should be produced in their native form.

A party cannot unilaterally redact a document based on relevance absent a claim of privilege. In cases where the document contains highly confidential commercial information, a protective order may be issued requiring the information not be revealed or only be revealed in a specified way, such as designating it for “counsel eyes only.”

Nature of Case: Class Action, Unfair Competition

Electronic Data Involved: Spreadsheets

Case Summary

Archive - 2020