Key Insight: Waiver of privilege for documents inadvertently posted to publicly accessible Box.com location
Nature of Case: insurance coverage litigation
Electronic Data Involved: Box.com uploads
Keywords: Box.com, privilege waiver, publicly accessible, account permissions, file sharing
Identified State Rule(s): Va. Sup. Ct. R. 4.1(b)(6)(ii)
Identified Federal Rule(s): FRE 502(b)
Key Insight: Predictive coding models are legitimate, and document review can stop when the burden outweighs the benefits.
Nature of Case: wage and hour class action
Electronic Data Involved: archived email
Keywords: privilege log, predictive coding,
Key Insight: The court inferred from plaintiff’s improper discovery conduct, hiding documents, privilege problems, etc, into the main case as evidence that the plaintiffs were untrustworthy.
Nature of Case: Patent infringement
Electronic Data Involved: Multiple types of scientific documents, charts, business papers, etc.
Keywords: Spoliation, privilege log, uncooperative discovery, inequitable conduct, litigation misconduct
Key Insight: Plaintiff requested information related to outside counsel’s evaluation of claims. Court granted, but limited original request.
Nature of Case: Insurance breach of contract and bad faith
Electronic Data Involved: Various documents related to claims investigations; primarily related to outside counsel evaluations.
Keywords: scope; outside counsel; evaluation of claim
Key Insight: Where promised emails were not produced but Defendant ultimately produced all documents relevant to the alleged spoliation, including ?preservation communications to document custodians, a list of custodians who were searched, the search terms used to conduct the search, and project documents and materials relating to such searches,? and also submitted a representative for an extensive Rule 30(b)(6) deposition, the court found Plaintiff?s request to compel production of ?every privileged document described as concerning data collection?[wa]s overly broad, unduly burdensome and ha[d] not been shown to relate to the issue at the forefront of this entire exercise?the missing Leon emails? despite acknowledging that ?otherwise privileged documents may be discoverable upon a preliminary showing of spoliation.?
Electronic Data Involved: Information related to preservation efforts, etc. where Plainitff alleged spoliation by Defendant and sought to compel production of privileged information
Key Insight: Among other things, court denied motion for protective order upon finding that Plaintiffs were ?entitled to obtain basic information sufficient to determine whether searches were reasonably conducted and the results properly verified? even without ?evidence that specific documents were destroyed or withheld? and reasoned that ?the fact that [Defendant?s] attorney(s) conducted or supervised the searches does not protect such non-privileged information from disclosure?
Electronic Data Involved: Information re: efforts to preserve, search
Key Insight: Where Defendant responded to court?s inquiries regarding its search efforts and marked its search terms and a ?non-exhaustive list of topic areas of documents produced to Plaintiff? as attorney work product, court reasoned that ?this is precisely the type information which is generally shared by counsel in complex civil litigation cases so that they may reach an agreement regarding the scope of production of ESI? and that ?[t]he norm in these cases is that counsel for both sides review and agree in advance on the parameters of the search, on any search terms to be used, and on the specific custodians whose files are to be searched? and ordered Defendant to file unredacted copies on ECF, but indicated that they would be under seal to protect information covered by the Stipulation and Order of Confidentiality
Electronic Data Involved: Search terms
Key Insight: Court granted Plaintiff?s motion to compel production of litigation hold notices and related responses to a survey regarding recipients? computer use where, despite the absence of specific evidence of spoliation or a pending spoliation motion, the delayed (9-11 months) and rolling issuance of litigation holds was described by the court as ?leisurely, to an extent making it impossible to dismiss as frivolous [Plaintiff?s] suggestion that she might move for a spoliation sanction? and where the court reasoned that Plaintiff was ?entitled to discovery in these areas, in order to discern the merit or lack of merit of a formal claim for spoliation claim? [sic]; regarding assertions that the hold notices were privileged, the court reasoned that ?the predominant purpose of the communication was to give recipients forceful instructions about what they must do, rather than advice about what they might do?; court?s analysis included identification of six ?decisive questions? relevant to ?spoliation cases involving litigation hold notices? including, when the duty to preserve arose, whether litigation holds were issued, when they were issued, what they said, how recipients responded and what further action was taken beyond the litigation holds to preserve evidence
Nature of Case: Employment discrimination
Electronic Data Involved: Litigation Hold notices and survey to recipients regarding computer use
Key Insight: Plaintiffs sought to compel production of all emails sent to or from any of the Plaintiffs through a Percheron account. The Court found the emails were relevant because they may shed light on informal work policies, hours worked, and serve as a potential cross-reference to the other records kept by Defendant. Analyzing proportionality, the Court concluded that the importance of the issues (to the Plaintiffs), the amount in controversy (alleged to be ?in excess of several million dollars?), the resources of the parties, the parties? relative access to the information and the importance of the discovery in resolving the issues weighed in favor of Plaintiffs/production. Regarding whether the burden of discovery outweighed the benefit, the Court acknowledged Defendant?s claim that the review ?would likely cost $735,000-$798,964 and take a team of 20 attorneys 12 weeks to complete,? but reasoned that the Court?s refusal to compel production of certain email categories would lessen the estimated costs and that Defendant?s inability to provide certain data had caused Plaintiffs to have to ?puzzle together damages? and concluded that the request did not ?run afoul? of proportionality. The court also relied on Defendants prior agreement to produce the emails. Addressing Plaintiffs? motion to compel information regarding Defendant?s preservation efforts, the court ordered production of the names of those that received litigation holds and related information, but declined to order the litigation holds themselves.
Nature of Case: Fair Labor Standards Act
Electronic Data Involved: Emails, Information re: litigation hold notices
Key Insight: Defendant sought to compel the return of Plaintiff?s company-issued laptop in order to obtain its contents; production of all emails sent by Plaintiff?s counsel to a joint email account shared by Plaintiff and her husband; as well as an additional search of Plaintiff?s Facebook account. Because it became clear that neither party had accessed the laptop during the litigation but that both parties were interested in its contents, the Court ordered that imaging and retrieval would be conducted by an agreed upon third party but, recognizing Defendant?s security concerns, allowed a representative to be present for the process. The Court denied Defendant?s motion to compel production of emails that Plaintiff?s counsel sent to a joint email account accessible by both Plaintiff and her husband, indicating that Defendant had not shown that Plaintiff waived attorney-client privilege regarding the communications with her counsel by having the emails sent to a shared email account and citing marital privilege. The Court denied the motion requesting a third search of Plaintiff?s Facebook messages, indicating that the messages produced to date were satisfactory and that the time and cost of an additional search was not ?proportional to the needs of this litigation.?
Nature of Case: Employment discrimination
Electronic Data Involved: Company-issued laptop, emails, social media (social network)
Copyright © 2022, K&L Gates LLP. All Rights Reserved.