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New Risks of the Evolving Workforce

Aug 30 2022

K&L Gates recently hosted a series of webinars covering potential legal and regulatory implications businesses must consider as a result of the now common hybrid work setting. The cross-practice series focused on compliance issues from a Tax, Data Protection, Privacy, and Security, e-Discovery Analysis and Technology, and Labor, Employment, and Workplace Safety perspective.

Webinar recordings and associated materials are available on the K&L Gates HUB.

Calhoun v. Google LLC (N.D. Cal. 2022)

Jun 06 2022

Key Insight: This matter relates to the court’s order to compel and order to show cause as to why Google should not be sanctioned for interfering with the production of third-party Ernst & Young (E&Y) documents ordered by the court. Plaintiff subpoenaed E&Y for documents relating to the valuation of certain user information. Google moved for a protective order and the court granted in part and denied in part the motion, narrowly tailoring the allowed requests. E&Y then identified 6,322 responsive documents and Google reviewed and deselected 6,232 documents on the basis of relevance, resulting in E&Y’s production of 90 documents. Google maintains it was justified in working with E&Y to cull irrelevant documents from the final production. The court noted: “Googles proffered ‘justification,’ primarily that the documents reflect highly confidential financial information not relevant to the claims in suit, was heard and rejected by this Court twice.” The court ordered Google to pay plaintiff’s fees and costs for having to bring the motion to compel.

Nature of Case: Data Privacy Class Action

Electronic Data Involved: Financial documents

Case Summary

Edwards v. McDermott Int’l, Inc. (S.D. Tex. 2022)

May 18 2022

Key Insight: The court was required to balance the proportionality factors to determine whether plaintiff’s proposed search terms that would require defendants to review 1.3 million documents were proportional to the needs of the case or if defendants’ proposal to review half as many documents was more proportional. In applying the proportionality factors, the court found it a “close call” but granted the motion in plaintiff’s favor, ordering defendants to apply plaintiff’s proposed search terms and to begin review of the documents and produce them on a rolling basis.

Nature of Case: Securities Fraud

Electronic Data Involved: Email

Case Summary

Jordan Khan Music Co. v. Taglioli (E.D. Tex. 2022)

May 12 2022

Key Insight: Plaintiffs moved to compel the forensic examination of defendants’ devices and data storage for imaging and inspection, along with their licenses for all software used for their businesses. Plaintiffs claimed the discovery was relevant to their RICO claim, alleging continued criminal copyright infringement of unlicensed software as a predicate act. Defendants claimed forensic examination would be vastly disproportionate to the issue. The court agreed with defendants and denied plaintiffs’ motion to compel, finding the forensic examination would allow plaintiffs to become privy to information beyond the scope of audio software and they could engage in the discovery process in a less invasive but still worthwhile manner. Accordingly, the court ordered that defendant revise their boilerplate objections and respond to plaintiffs discovery requests to identify computers, storage mediums and software used in Defendants’ business within a specific time frame.

Nature of Case: Trademark Infringement

Electronic Data Involved: Electronic Devices, Computers, Software

Case Summary

In re Actos End Payor Antitrust Litig. (S.D.N.Y. 2022)

Mar 30 2022

Key Insight: On plaintiff’s motion to compel, the magistrate judge ruled that defendant Takeda was to produce “all responsive ESI to Plaintiffs, including earlier-in-time emails.” In its production, Takeda had used email threading by which a party reviews and produced the most-inclusive email in a thread. The Discovery Protocol did not permit that approach. The magistrate emphasized the need for parties to have early discussions regarding ESI to avoid later misunderstandings and disputes. Takeda’s exclusion of lesser included emails from production resulted in the exclusion of metadata associated with the earlier chain emails. The magistrate declined to impose email threading on plaintiffs and recognized that while requiring Takeda to produce earlier-in-time emails would cause additional burden, such burden is not undue since Takeda agreed to the Discovery Protocol and likely has already reviewed many of the emails at issue.

Nature of Case: Antitrust

Electronic Data Involved: Email

Case Summary

Orchestrate HR, Inc. v. Blue Cross and Blue Shield of Kansas, Inc. (D. Kan. 2022)

Mar 21 2022

Key Insight: The Magistrate denied defendant’s motion to add plaintiffs outside counsel as a list of documents custodians for ESI discovery purposes. The court noted that relatively little legal authority exists on the standards to apply when parties cannot agree on designated ESI custodians. Relying on the limited legal authority and The Sedona Principles, the court noted as follows: (1) determining what is relevant and proportional is a highly fact-specific inquiry; (2) absent agreement among the parties, the party responding to discovery requests is entitled to select the custodians it deems most likely to possess responsive information; (3) unless the party’s choice is unreasonable or results in a deficient production, the court should not dictate ESI custodians; and (4) the party seeking to compel the designation of a particular custodian has the initial burden to show that the disputed custodian’s ESI is relevant to the claims or defenses.

Nature of Case: Tort Claims

Electronic Data Involved: Email

Case Summary

Europe v. Equinox Holdings, Inc. (S.D.N.Y. 2022)

Mar 21 2022

Key Insight: Plaintiff brought a motion for sanctions alleging defendants failed to preserve a key piece of evidence (the September 2019 managers’ schedule from the month when she was terminated) in her employment discrimination suit. The court concluded that defendants should have taken steps to preserve the schedule in December 2019 when plaintiff notified defendants that she intended to initiate litigation, and they failed to do so. The court noted that the harshest sanction of adverse inference was not appropriate because it did not appear by clear and convincing evidence that the failure to preserve the evidence was done in order to gain an advantage in the litigation. The court ordered that plaintiff could present to the jury that the September 2019 schedule was lost and defendants could not compare her lateness to other employees in September 2019 or argue that her co-workers’ lateness in September 2019 was less than hers.

Nature of Case: Employment Discrimination

Electronic Data Involved: Business Documents

Case Summary

Famulare v. Gannett Co., Inc. (D.N.J. 2022)

Mar 17 2022

Key Insight: The discovery dispute involved whether defendants are obligated to produce screenshots of certain computer generated reports from defendants’ computer program known as Salesforce. Salesforce maintains and memorializes various performance metrics of individual account executives. Plaintiff generated and printed some of her own performance metrics and seeks in discovery the same reports for certain other defendant employees for purposes of comparison. Defendants assert that the reports are not free-standing, fixed reports but are screenshots of the Salesforce dashboard and they cannot generate reports but can only provide her with the underlying historical data in Excel, which they already provided. The court affirmed the magistrate judge’s opinion, ruling that whether Salesforce is incapable of generating and printing the reports as they maintain it is would need to be determined by a Rule 30(b)(6) deposition. The functionality of the Salesforce data is the core issue in the motion and the court reiterated the magistrate’s sentiments that until the deposition is completed, the nature of the Salesforce program and its capabilities are unknown.

Nature of Case: Employment Discrimination

Electronic Data Involved: Screenshots

Case Summary

MasterObjects, Inc. v. Amazon.com, Inc. (N.D. Cal. 2022)

Mar 13 2022

Key Insight: Defendant filed a motion for sanctions based on violation of a prior discovery order and sought spoliation sanctions. The Magistrate Judge issued a report on the spoliation issue. Plaintiff’s law firm was attacked by hackers, which rendered files and mailboxes inaccessible without a recovery key set by the attackers. Both the FBI and the firm’s insurer advised the firm not to pay the hackers a ransom. The firm attempted to restore the data on its servers with some success but everything prior to the final months of 2016 has been lost. There were some printed copies of the archival copies of digital records but plaintiff’s counsel maintained it did not have a duty to keep a duplicate paper file of its digital records. The court noted that there was no evidence of any physical document (other than a copy of an electronically stored document) that was destroyed, and the spoliation doctrine does not require a party to maintain identical copies of documents. The court noted the data is not “lost” and exists on the hard drives and although access has been blocked, it can be accessed if a key is provided or a technological work-around is discovered. The court concluded there is no evidence the loss occurred because plaintiff’s firm failed to take reasonable steps to preserve it. Finally, the court found defendant could not establish prejudice and that there was an intent to deprive defendant of the evidence. It refused to apply a new kind of spoliation argument that plaintiff’s counsel’s firm “lost” its data because it refused to pay the ransom, finding “there is no logic or beneficial public policy in compelling a crime victim to pay ransom to a criminal in order to avoid being labeled a spoliator.”

Nature of Case: Intellectual Property

Electronic Data Involved: ESI

Case Summary

Aminov v. Berkshire Hathaway Guard Insurance Companies (E.D.N.Y. 2022)

Mar 03 2022

Key Insight: Defendant moved to compel plaintiff to produce for forensic examination the cell phone that recorded videos produced by Plaintiff. The court denied the motion, noting there must be good cause to order forensic examination when a party has already produced the electronic information sought and in native format. Defendant alleges there was a reason to believe metadata for the video was altered based on counsel’s own analysis using a free online metadata tool. After investigating the online metadata tool, including uploading a court document that did not contain any metadata, the court found that the tool shows an automatic message for every file that is uploaded to the website indicating that metadata “could have been changed or deleted” – something court noted “is hardly the thing on which one should base a motion to compel.”

Nature of Case: Breach of Contract

Electronic Data Involved: Cell phone

Case Summary

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