Electronic Discovery Law – Page 66 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Campbell v. Chadbourne & Parke LLP (Southern District of New York, 2017)

Nov 09 2017

Key Insight: conducting firm business on personal email accounts, employees’ personal email account will be subject to discovery if the employers allow them to mingle their work and personal email accounts.

Nature of Case: workplace discrimination, class action

Electronic Data Involved: personal email accounts, 115,000 documents, 2.5 terabytes of data of 25 custodians

Keywords: interspersing work and personal emails, overlap, spoliation, pay discrimination, wrongful termination

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Love v. City of Chicago (N.D. Ill., 2017)

Nov 07 2017

Key Insight: Applying the former version of Rule 37(e), because the current version is not retroactive, there is no duty to preserve regularly overwritten business audio recordings absent notice to do so.

Nature of Case: Many, including unlawful arrest

Electronic Data Involved: telephone recordings and video and audio

Keywords: duty to preserve, spoliation sanctions,

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Lee v. Trees, Inc. (District of Oregon, 2017)

Nov 06 2017

Key Insight: Fabricated evidence leads to terminating sanctions

Nature of Case: Employment discrimination, sexual harassment

Electronic Data Involved: Text messages

Keywords: dismissed with prejudice, fabrication, title VII, termination sanctions

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Court Compels Production for Plaintiffs’ Quick Peek Over Defendant’s Objection

Nov 05 2017

Fairholme Funds, Inc. v. United States, No. 13-456C, 2017 WL 4768385 (Fed. Cl. Oct. 23, 2017)

In this case the court granted Plaintiffs’ motion to compel a “quick peek” at approximately 1500 documents withheld as privileged pursuant to the bank authorization and deliberative process privileges despite Defendant’s strong objection. In making its order, the court noted the parties’ agreement that the clawback provision in their existing protective order would be governed by Rule 502(d), precluding waiver, and also reasoned, among other things, that the quick peek would expedite resolution of the dispute and avoid the need for in camera review, which Plaintiffs would inevitably request if their motion was denied.

U.S. EEOC v. GMRI (S.D. Fla., 2017)

Nov 01 2017

Key Insight: whether missing evidence is crucial to movant’s case, whether non-movant had intent to deprive

Nature of Case: employment discrimination

Electronic Data Involved: hard copy, email

Keywords: duty to preserve, litigation hold, permissible inference, bad faith

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IDC Financial Publishing, Inc. v. Bonddesk Group, LLC (E.D. Wisc., 2017)

Oct 26 2017

Key Insight: To what extent can redactions be applied to responsive documents outside of ACP and work-product?

Nature of Case: Copyright

Electronic Data Involved: Business documents

Keywords: Redactions, relevance

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Fitzpatrick v. Sgt. Verheyen (E.D. Wisc., 2017)

Oct 23 2017

Key Insight: Not organizing surveillance videos so that they could be promptly located was not found to be an “intent to deprive”

Nature of Case: Civil rights

Electronic Data Involved: Video

Keywords: video, intent, spoliation sanctions

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Fairholme Funds, Inc. v. United States, No. 1:13-cv-0465-MMS (Fed. Cl. Oct. 3, 2016)

Oct 23 2017

Key Insight: 1500 documents withheld as privileged under procedures in FRE 502 (d);

Nature of Case: Fifth Amendment, taking private property without just compensation

Electronic Data Involved: 1500 documents

Keywords: quick peek, privileged, taking, unjust compensation

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UnitedHealthcare of Fla., Inc. v. Am. Renal Assoc., Inc. et al., No. 16-cv-81180-Marra/Matthewman (S.D. Fla. Oct. 20, 2017)

Oct 20 2017

Key Insight: Court had permitted Defendants to select an additional 16 custodians and 12 additional search terms. Plaintiff moved for reconsideration being concerned about amount that would be produced. Court denied reconsideration, urged cooperation and clarified that earlier limits on discovery applied to new materials as well.

Nature of Case: Fraud

Electronic Data Involved: E-mails, Documents

Keywords: search terms; cooperation; additional custodians; additional terms

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Citing Failure to Cooperate, Court Orders Use of Specific Keyword Search Terms

Oct 19 2017

United States v. New Mexico State Univ., No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017)

In this pay discrimination case, the Court addressed Defendants’ motion for a protective order precluding further searching for responsive documents. Citing defense counsel’s failure to “adequately confer” before performing the initial searches, “which resulted in searches that were inadequate to reveal all responsive documents,” the Court concluded that “which searches will be conducted is left to the Court” and went on to order Defendants to conduct additional searches with specific terms, many of which were proposed by the plaintiff.