Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Court ruled that ESI is expansive and includes information stored electronically, not just information on a computer system as plaintiffs argued. FRCP overrules state law or inherent power to sanction. No negative inference allowed.
Nature of Case: negligence, loss of consortium
Electronic Data Involved: records of ambient gas levels
Keywords: sanctions, negative inference, inherent authority
Key Insight: Defendants had deleted relevant files just before forensic imaging occurred. Court sanctioned Defendant and issue permanent injunction.
Nature of Case: Copyright infringement
Electronic Data Involved: Source Code and files on laptops
Keywords: sanctions, injunctions, source code
Key Insight: Counsel has a duty to oversee their clients’ collection of information and documents during the discovery process, especially when ESI is involved. Here, counsel failed to adequately supervise the ESI collection process. Counsel had no knowledge of the search efforts or process taken by Defendant is its discovery collection. Ultimately, the Defendant was given a final opportunity to produce responsive discovery. The parties were ordered to attempt to come to an agreement regarding and ESI protocol that included relevant data sources, custodians, and search terms.
Nature of Case: Employment Discrimination
Electronic Data Involved: Electronic Documents Generally
Key Insight: Defendant “self-collected” without involvement of counsel. Court gave defendant one last chance to produce as 5 months remained in discovery, with active involvement of counsel.
Nature of Case: Age discrimination
Electronic Data Involved: Various ESI
Keywords: certification, party collection
Key Insight: A forensic imaging of Plaintiff’s electronic devices and cloud based accounts was warranted because Plaintiff lost relevant evidence during the discovery process and continually made misrepresentations regarding this evidence and how it was stored. The forensic imaging would preserve any evidence and possible recover evidence that has been loss. This would not be an invasion of privacy as Plaintiff’s privacy can be adequately protected. A third party service provider can image the devices and collect the data. Counsel would not have access to any of the data until after the court approves a review plan, which would implement additional safeguards to ensure there is no access to irrelevant or private information.
Nature of Case: Sexual Assault, Fraud
Electronic Data Involved: Audio Recording, Cloud Based Account Data, Electronic Device Data
Key Insight: Plaintiff’s explanation regarding loss of evidence had changed and court ruled that defendant was entitled to have a third party collect and preserve the evidence. Plaintiff offered passwords to accounts, but court was concerned about possible destruction given Plaintiff’s changing explanation regarding social media accounts and recording.
Nature of Case: Sexual Assault
Electronic Data Involved: Electronic Devices and Cloud Based Accounts; Recording of conversation
Keywords: invasion of privacy, loss of evidence
Key Insight: Under FRE 502(d), inadvertent disclosures do not result in a waiver of privilege. While this rule can be utilized to reduce costs of pre-production privilege review, a party cannot be forced to engage in a discovery process that would likely result in the production of privileged documents.
Nature of Case: Employment Discrimination, Equal Pay, Title VII
Electronic Data Involved: Email
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
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
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
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