Federal Court Decisions Involving Electronic Discovery, December 1 ...

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Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009 employees’ circumstances was relevant to Sprint’s discriminatory intent,” and therefore the requested documents were within the broad scope of discovery. However, the court considered each request separately and applied the limitations of privilege and proportionality under Rule 26(b)(2). Among the cost considerations taken into account by the court was the estimated cost of review. The court denied several requests outright; narrowed the remaining requests; and allowed discovery under a protective order “in the form in which [the ESI] is currently maintained, but in electronic format to the extent possible.” Bonn v. City of Omaha, et al., 2009 WL 1740783 (D. Neb. June 18, 2009). In a wrongful discharge action, plaintiff sought to compel production of all email associated with defendants’ two executives and all correspondence between defendants and an associated third party. In response, defendants alleged that the requested emails had already been searched using relevant key terms, and that the third party emails were “necessarily irrelevant.” Applying Federal Rule 26(b)(2)(B) & (C), the court held that the cost and burden of further exploration of the defendants’ ESI outweighed the likely benefit of such a search. However, the court rejected the defendants’ contention that the third party communications were irrelevant and ordered the third party to produce all written communication. The defendants were not ordered to produce any further electronic discovery. Bray & Gillespie Management LLC, et al. v. Lexington Ins. Co., et al., 2009 WL 546429 (M.D. Fla March 4, 2009). In this action, the owner and operator of resorts in Florida filed suit against its insurer to recover damages to its properties caused by three hurricanes. The insurance company disputed whether the damages claimed were the result of three separate “occurrences” under the policy. The plaintiff, in preparation for litigation, downloaded ESI in native format, converted it to TIFF images and, in the process, failed to capture relevant metadata. The defendants objected to the plaintiff’s production of the TIFF images and moved to compel production of the ESI in native format. Deciding this latest in a series of motions by the defendants, the court held that the production was not in the form requested by them, that the ESI was not in a reasonably useable form, that the plaintiff and its attorney concealed information and made material misrepresentations, and that monetary and other sanctions were warranted against the plaintiff and various of its attorneys. The court noted that the plaintiff, “as the client, has the obligation to supervise its lawyers,” that an inside counsel cannot blindly rely on outside counsel, and that outside counsel acted in bad faith. Finally, the court advised that it would issue an order to show cause why one attorney should not be personally sanctioned. Brookdale Univ. Hosp. & Med. Ctr., Inc. v. Health Ins. Plan of Greater N.Y., 2009 WL 393644 (E.D.N.Y. Feb. 13, 2009). The defendant sought reconsideration of an order requiring them to return or destroy inadvertently produced documents and prohibiting them from making use of the information contained therein. On the motion for reconsideration, the court stated that it is “closing and locking the door” and held that it would not entertain any argument on documents that might have been inadvertently produced by the plaintiff. The court also held that a confidentiality agreement between Copyright © 2009, The Sedona Conference ® 14 www.thesedonaconference.org
Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009 the parties was unavailable to the plaintiff as a basis to assert further claims of possible inadvertent waiver, as it had failed to act promptly to raise any such claims. The court also refused to extend the discovery period, noting that it had not authorized new discovery requests and that the plaintiff had failed to raise timely objections to a defendant’s production. Lastly, the court directed the parties to meet and confer with regard to the plaintiff’s failure to provide certain metadata (“email string headers”) to the defendant. Bro-tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008). In a trade secret theft case, the defendants had been ordered by the magistrate judge to produce forensically sound images of data storage devices reviewed by the defendants’ expert for inspection by the plaintiff. The district judge modified the order in part, distinguishing between the data storage devices reviewed by the expert in his role as a witness, which would be subject to full disclosure regardless of any claim of privilege under Rule 26(a)(2)(B), and data storage devices reviewed in the expert’s consulting expert capacity, disclosure of which would be limited to relevant, non-privileged data identified by a hash value and key word search protocol. In a subsequent decision, 2008 WL 5210346 (E.D. Pa. Dec. 11, 2008), the court denied a motion to compel production of a disputed document, enforcing the terms of the clawback agreement entered into by the parties, which required that a party objecting to a privilege claim concerning an inadvertently disclosed document must object within five business days and that the objection would be resolved by the e-discovery master. Buckley v. Mukasey, 538 F. 3d 306 (4th Cir. 2008). In this civil rights claim brought by a DEA agent, the plaintiff appealed the district court’s refusal to impose spoliation sanctions. The appellate court noted that the district court applied the incorrect standard in determining the appropriate level of culpability. The court explained that the standard in the Fourth Circuit is whether the destruction was intentional rather than whether it was done in bad faith. The court also observed that the district court should apply the standard that the duty of preservation arises when litigation is reasonably foreseeable, providing additional grounds for a spoliation finding. The court then opined that “we already are remanding for a new trial on other grounds, we simply leave it to the district court to consider on remand . . . Buckley’s request for an adverse inference instruction.” Butler v. Kmart Corp., 2007 WL 2406982 (N.D. Miss. Aug. 20, 2007). In a personal injury action against a retailer, the plaintiff moved to compel production of ESI related to the retailer’s security operations. Alleging that the defendant did not sufficiently discharge its discovery obligations, the plaintiff sought direct access to the defendant’s databases. The defendant responded with affidavits describing its search efforts. The court ordered the defendant to produce responsive ESI or demonstrate unsuccessful diligent searching, but denied the plaintiff’s request for direct access to the databases based on the lack of evidence of improper action. B-Y Water Dist. V. City of Yankton, 2008 WL 5188837 (D.S.D. Dec. 10, 2008). In this action, the defendant asked the court to bar the plaintiff from using two exhibits at trial, arguing that these were privileged, inadvertently produced, and discovered by Copyright © 2009, The Sedona Conference ® 15 www.thesedonaconference.org
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