FRCP 26(g) – Electronic Discovery Law

Gunter v. Alutiiq Advanced Security Solutions, LLC (D. Md. 2021)

Dec 28 2021

Key Insight: Defendant alleged that Plaintiff altered the wording of text messages and fabricated a series of text messages. Plaintiff also failed to produce relevant text message and falsely testified that such messages did not exists which was proved by a later forensic review. The Court had serious doubts regarding the text messages at issue. Plaintiff has no explanation for why his cellphone contains some text messages but not others. For these reasons, the Court ruled the text messages could not be used as evidence and the cost of the forensic review of the cell phone would be shifted to Plaintiff. However, the case would not be dismissed as there was not the “clear evidence necessary to conclude that Plaintiff fabricated the text messages.”

Nature of Case: Employment Discrimination

Electronic Data Involved: Text Messages

Case Summary

Haroun v. ThoughtWorks, Inc. (S.D.N.Y. 2020)

Oct 07 2020

Key Insight: Plaintiff has no basis to seek “discovery on discovery” from defendants. Plaintiff “does not identify any gaps in production of ESI, any reason to believe that documents have been deleted, or any basis for asserting that Defendants are not searching all relevant and reasonably available sources of ESI that would contain material responsive to Plaintiff’s document requests.” Plaintiff can inquire at deposition and review the document production to identify obvious gaps.

Nature of Case: Employment Discrimination

Electronic Data Involved: Business documents

Case Summary

Brady v. APM Management, LLC (N.D. Ohio 2020)

Jul 28 2020

Key Insight: Plaintiff’s Motion for Sanctions was granted and denied in part. Defendants had failed to produce documents and comply with discovery obligations. The Court concluded that Defendants, but not Defendants’ counsel, had acted in bad faith by making misrepresentations, and issued monetary sanctions against Defendants and barred a previously pled defense. The Court denied Plaintiff’s request of a sanction of precluding Defendants from raising a new defense. Moreover, the Court declined to award fees and costs for Plaintiff’s Motion to Compel Defendants to produce financial records.

Nature of Case: Wrongful Termination, Family Medical Leave Act (“FMLA”), Americans with Disabilities Act (“ADA”)

Electronic Data Involved: N/A

Case Summary

Equal Employment Opportunity Commission v. M1 5100 Corporation (E.D. Fla. 2020)

Jul 02 2020

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

Case Summary

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

Tag:FRCP 26(g)