FRCP 37(a) – Electronic Discovery Law

Krishnan v. Cambia Health Solutions, Inc. (W.D. Wash. 2021)

Jun 23 2021

Key Insight: Defendant cannot be compelled to produce text messages from employees’ personal cell phones because they did not have possession, custody, or control of the devices. An employer has possession, custody, or control of a cell phone when the employer issued the cell phone, the cell phone is used for business purposes, and the employer has a legal right to obtain communications from the cell phone.

An email does not become privileged simply by including counsel as a recipient to an email. If the email was not sent with the purpose of obtaining legal advice, it is not privileged.

An independent forensic examination of electronic devices for electronic communications is appropriate when a party intentionally delays or withholds relevant and discoverable communications.

Nature of Case: Wrongful Termination, Employment Law

Electronic Data Involved: Text Messages, Email

Case Summary

Haywood v. Wexford Health Sources, Inc. (N.D. Ill. 2021)

Jun 03 2021

Key Insight: Plaintiff filed a motion to compel and for sanctions against defendants, claiming the defendants’ production of ESI relating to the treatment of plaintiff’s mental illness was produced in PDF as opposed to its native Excel format and not reasonably usable. The court granted plaintiff’s motion to compel, ordering defendants to produce the ESI in their native Excel format and awarded plaintiff’s counsel $25,000 in fees. The court rejected defendants’ argument that it converted the Excel data into PDF because it was required under HIPAA and Illinois law given the protective order in place. The court further found the ESI in PDF form was not “reasonably usable” under Rule 34(b). There is missing data and text, and it eliminated plaintiff’s ability to sort and organize the data contained in the spreadsheets. Quoting another court’s decision, the court noted: “One of the unique strengths of Excel software is the ability to implement calculations and formulae that are not evident in a PDF version[.]” This forced plaintiff to sort more than 270,000 pages of information, much of which is either redacted or difficult to read.

Nature of Case: Prisoner Civil Rights

Electronic Data Involved: Prisoner Records

Case Summary

Lamaute v. Power (D.D.C. 2021)

Apr 18 2021

Key Insight: In using the proportionality test, each factor should be examined to balance the needs and rights of both parties and determine an appropriate resolution. When requests are overbroad and not proportional to the needs of the case, the court may limit the scope of the documents a party is required to produce.

Nature of Case: Employment Discrimination, Title VII

Electronic Data Involved: Electronic Documents Generally

Case Summary

Grande v. U.S. Bank National Association (W.D. Wash. 2020)

Feb 20 2020

Key Insight: The requested business guidelines were relevant. The scope of discovery is very broad. A request for discovery is relevant “unless it is clear that the information sought can have no possible bearing upon the subject matter of the action.”

The court declined to find the guidelines so confidential that they cannot be produced. Defendants did not move for a protective order nor did they provide any evidence of harm that would result from producing the guidelines.

Attorney fees were awarded to Plaintiff because Defendant caused substantial delay in responding to discovery despite Plaintiff’s multiple good faith attempts to obtain the requested discovery.

Nature of Case: Breach of Contract

Electronic Data Involved: Business Guidelines, Business Policies

Case Summary

Tag:FRCP 37(a)