Key Insight: inadequate search and production, misrepresentation, failure to supplement, follow-up, failure to disclose
Nature of Case: patent infringement
Electronic Data Involved: email, board meeting minutes, investor presentations
Keywords: monetary sanctions, needless burden, late disclosures, post-settlement order, misrepresentation, motion to show cause
Key Insight: Court granted in part Plaintiffs? motion to compel additional searching in two previously excluded timeframes, denying the motion as to documents generated at a time in which ?nothing of significance was happening? as indicated by Defendants and because the cost and burden of the requested discovery would violate the rule of proportionality but granting the motion as to information created after the filing of the complaint, where the court rejected Defendants? claim that nothing created after that time could have possibly been relevant and noted that Defendants failed to present any specific argument about undue burden, apart from having disassembled their review teams
Nature of Case: Breach of contract
Electronic Data Involved: ESI from previously unsearched timeframes
Key Insight: Court declined to compel Defendant to conduct additional searches of witnesses? email accounts using 88 new search terms and excluding Plaintiff?s name finding that the request was ?overly broad and not proportional to the case? and reasoning that Plaintiff relied upon a multi-plaintiff case to justify her position and that she had not provided specifics regarding what she reasonably expected to find or shown that the information could not be found through other means, such as by asking additional questions of witnesses already scheduled for deposition ; court ordered Defendant to produce the relevant policies it operated under where Defendant claimed emails were deleted in the ordinary course of business according to Company policy, and that Defendant should also provide Plaintiff with the date of the deletion and the name of the person who made the deletion or the process of deletion, if known
Nature of Case: Wrongful termination
Electronic Data Involved: Email
Key Insight: Court found defense counsel had committed two violations of Rule 26(g)?s obligation to conduct a reasonable inquiry where counsel simply provided discovery requests to Defendant?s HR manager who conducted an independent, but ultimately inadequate, search for responsive information and failed to properly supervise the search, involve the IT Department (a best practice, according to the court), or follow up to ensure the search was adequate. Discussing the lack of a ?reasonable inquiry,? the court instructed that a non-lawyer will typically require more guidance than merely providing the requests at-issue and noted that ?attorneys have a post-investigation obligation to make sure all responsive information is provided.? Court ordered counsel to pay the reasonable expenses and fees associated with the motion for sanctions and for Defendant to pay $1000 but declined further sanctions where Defendant supplemented its response to discovery when additional responsive information was located.
Nature of Case: Claims arising from an industrial accident
Electronic Data Involved: Emails, ESI
Key Insight: Court affirmed order of Magistrate Judge declining request for additional discovery based on Defendant?s alleged violation of the parties? protocol for discovery. Where parties agreed that each would disclose the eight custodians ?most likely? to have discoverable ESI, Plaintiff claimed that Defendant failed to name its VP of North American sales in a ?systematic and pervasive effort? to prevent the disclosure of discoverable documents. Magistrate Judge reasoned that Plaintiff needed to explain why its proposed custodians were better than those identified by Defendant and permitted Plaintiff to conduct a test search at its expense, which uncovered few additional documents. Magistrate Judge held that absent a showing that Defendant violated the protocol, it should be enforced, noting that ?for good or ill? Plaintiff had agreed to limit the searches. Affirming the order, the District Court noted that the protocol required the identification of custodians ?most likely? to have discoverable information (describing the ?before-the-fact perspective?) and not the custodians that IN FACT had the most discoverable ESI and also that Plaintiff had failed to take up the Magistrate Judge?s invitation to provide additional search terms for the test, which may have identified additional information to bolster their position
Nature of Case: Patent Infringement
Electronic Data Involved: ESI from 8 custodians “most likely” to have responsive information
Key Insight: Where counsel for defendant indicated that relevant emails were not available because they were no longer retained in accordance with a document retention policy requiring the maintenance of emails for only 30 days and where no litigation hold was in place because Defendant was relying on its existing document retention policy because a litigation hold would be overly burdensome, court reasoned that ?the deletion of some responsive emails does not absolve Defendant of its obligation to thoroughly search for still-extant ESI? and ordered production of ?full and adequate responses to discovery? and also ordered Defendant to implement a litigation hold to preclude potential deletion of relevant information
Nature of Case: Claims arising from auto accident
Electronic Data Involved: Email
Key Insight: Where, in email, the parties agreed to use certain search terms and one party produced all such hits except those deemed privileged while the other produced only relevant documents, court indicated that if it were to construe the emails as a binding contract, Defendant would be in breach, but found that it was not a contract and reasoned that there was no evidence that relevant documents were withheld nor that additional searches would produce more responsive documents, and thus denied Plaintiff?s motion to compel
Nature of Case: Defamation
Electronic Data Involved: ESI identified by agreed search terms
Key Insight: Where relevant video was lost as a result of mistakes made by representatives of the defendant who were attempting to pull and preserve the video from the recording system for the first time and where CDs with the footage ?vanished,? the court reasoned that the errors were symptoms of a ?larger problem: an inadequate information management and evidence retention policy? (a point it relied on significantly in its discussion of culpability) and also found that the plaintiff was prejudiced and imposed sanctions allowing Plaintiff to present evidence that the video existed and was lost through negligence and indicated that if Defendant attempted to elicit testimony from a deputy regarding what he saw on the video (that was viewed by several of defendant?s representatives before it was lost), the jury would be instructed to make any inference they believed was appropriate; the court also ordered Defendant to pay Plaintiff?s expenses and fees incurred in bringing the motion
Nature of Case: Traffic accident involving a police officer
Electronic Data Involved: Video footage
Key Insight: Court granted motion to compel inspection of Defendant?s personal computer that was utilized for business where Plaintiff established that relevant information was likely stored there, where the information was potentially ?critical? to Plaintiff?s case (regarding whether Defendant had utilized Plaintiff?s confidential information), where there was ?no other avenue? to obtain the requested discovery, where the costs did not appear substantial, where Plaintiff?s counsel made a good faith effort at alternative resolutions before brining the motion, and?notably?where Defendant had previously agreed to the inspection (but later objected); court also granted access to Defendant?s email accounts, including disclosure of his passwords; as to both repositories, court ordered the parties? to agree on a search protocol/search terms that included allowing Defendant to review the results of the search prior to production
Nature of Case: Defendant’s alleged use of Plaintiff’s confidential files to underbid Plaintiff on various projects
Electronic Data Involved: ESI, email
Key Insight: Where Defendant resisted searching certain emails arguing undue burden and that it was unlikely that responsive emails would be found but where no evidence of burden was submitted, where not even a cursory search of the emails was undertaken and where there were examples of the sorts of email sought produced from other employees, the court ordered Defendant to conduct the requested search; similarly, where Defendant offered no evidence of the alleged burden to review and produce the at-issue call recordings, where Plaintiff offered to bear the full cost of transcribing the messages, and where the court determined that the likelihood that the calls would be privileged was low, the court ordered Defendant to produce the raw audiofiles of its customer service calls and voicemail; notably, at the outset of its analysis the court noted that at least 10 attorneys had appeared for each party and that it was ?apparent that the issues at stake are significant,? including posing an ?existential risk? to Defendant and therefore concluded that ?any proportionality argument has a high bar to clear to be successful?
Nature of Case: Trademark infringement
Electronic Data Involved: Customer service emails, call recordings
Copyright © 2022, K&L Gates LLP. All Rights Reserved.