<i><b>Legal Tech</i></b><br> Four Cases Highlighting e-Discovery Trends in the First Half of 2017

Rule 37(e) does not apply when intentional spoliation occurs, empowering the court to use inherent authority to issue sanctions.

Case Facts

Sexual harassment case in which the plaintiff created a digital recording of her meeting with an HR representative. After spoliation sanctions were filed, the plaintiff found the supposedly deleted audio recording.

Ruling

Based on the court's inherent authority, the court issued an adverse inference against plaintiff. Rule 37(e) did not apply, because the spoliation in this case was intentional.

Case #2: United States ex rel. Scutellaro v. Capitol Supply, 2017 WL 1422364 (D.D.C. Apr. 19, 2017)

Why this Case is Important

Violations of regulatory or contractual obligations are not within the purview of Rule 37(e), empowering courts to issue spoliation sanctions based on inherent authority.

Case Facts

Over seven years, the plaintiff served the defendant with numerous subpoenas, which weren't complied with. The defendant failed to retain relevant “case dispositive” data, thus the plaintiff filed for spoliation sanctions.

Ruling

Since the defendant failed to preserve data in violation of their regulatory duty and not in anticipation of litigation, the court ruled Rule 37(e) did not apply. Based on its inherent authority, the court granted the plaintiff's motion for an adverse inference.

Analysis

“The requirements under Rule 37(e) do not clearly state the conditions for when it should apply. I think that they use the term 'intent to deprive,' which is confusing, because in a lot of the cases they discussed the 'intent to destroy,' and then intent to destroy is mentioned once in the committee notes. So, if it's really about intent to destroy, that's the language that should have been used, and if it was about intent to deprive, but not intent to destroy, it becomes a gray area and leaves confusion.” James Keuning, Director of Practice Support; Briggs and Morgan, P.A.

“I think the Hsueh case sheds light on an area that, in e-discovery, we don't talk about enough, and that is the electronic data that individual plaintiffs have within their “possession, custody, and control,” because whether you're counsel for the defendant of the plaintiff, you don't have a lot of control over that data. So for both, it's very important to use tools, work with a trusted vendor and a trusted tool to be able to capture that data, especially social media data and other employee data that easily disappears. So, working with tools, paying attention to the data, and making sure to capture this data when you can with neither side relying on an individual plaintiff to do it.” Brendan Kenny, Esq., Trial Lawyer; Blackwell Burke.

What Constitutes an Undue Burden in e-Discovery?

Case: Meredith et. al. v. United Collection Bureau, Inc., Case No. 16-01102 (N.D. Ohio, Apr. 13, 2017)

Why this Case is Important

If evidence is proven to be relevant and necessary for litigation, then parties may be compelled to take extensive measures to produce requested data.

Case Facts

In this class action suit, the court rejected the plaintiff's motion to compel, because it was unduly burdensome to conduct a manual review of data. As an alternative, the plaintiff requested that the defendant write a computer program to find responsive data. The defendant refused, and subsequently the plaintiff filed a motion to compel specified data.

Ruling

The court granted the plaintiff's motion based on their justification that the requested data was relevant and necessary for litigation.

Analysis

“I think the lack of cooperation on the defendant's part was a factor in the ruling against the defendant, but I also think that, and there wasn't a mention of this, you might have some applicability of Rule 26(g) here, because the lawyers are saying the information cannot be generated, but then the CIO says it can. So, did the lawyers not talk to the CIO? Rule 26(g) requires that responses be made to the best of the person's knowledge, information, and beliefs formed after a reasonable inquiry. I think the judge was not happy to find out that there was a technical solution to a problem when counsel had said there wasn't.” James Keuning, Director of Practice Support; Briggs and Morgan, P.A.

“You can't rely on blanket rules, and in this case, the defendant used a blanket rule you have heard again and again — that you can't require someone to move heaven and earth and create a computer program to comply with discovery. But the defendant ran into what I would call an unreliable narrator problem, because counsel said this is going to be an unbelievably burdensome process, and then their own chief technology officer said it wouldn't be. The plaintiff also had an expert. If the opposing party is able to present an attractive set of facts for their position to the court, there's probably going to be a way around whatever blanket rule you think is a firewall.” Brendan Kenny, Esq., Trial Lawyer; Blackwell Burke.

A Shift in Your TAR Approach

Case: FCA US LLC v. Cummins, Inc., 2017 U.S. Dist. LEXIS 45212 (E.D. Mich. Mar. 28, 2017)

Why this Case is Important

The debate/controversy continues about when and how to apply Technology Assisted Review (TAR) for identifying responsive data.

Case Facts

In this product liability case, the parties were presented with numerous e-discovery complications. One of the arguments was when to apply TAR: Before or after the application of keyword search terms.

Ruling

The court agreed with the plaintiff to apply TAR to the data set before keyword search.

Analysis

“I think the important question is: What does keyword searching accomplish when we use TAR? Arguably the reason to use keywords is to reduce the data volume, because we pay by the gigabyte for hosting the data in the TAR system, and we often pay premium for gigabyte fees.

We just need to vet the keywords. You run a statistically valid sample of the documents that hit on keywords, and if your analysis of the sample shows that you have a good set of keywords, then go ahead and remove the documents that are not responsive. So, while the logical part of my brain says you do not run keywords before TAR, the practical part says it can be a cost-saving measure, which can be defensively performed, and courts should allow it when supported by the proper quality control workflow.” James Keuning, Director of Practice Support; Briggs and Morgan, P.A.

“Obviously, keyword searching is just a part of e-discovery in many cases, but what about all the things we can find out about the data we're looking at that doesn't require looking at the actual documents themselves or using keywords? There's a lot of information using data visualization and tools that can allow you to see things about the data you've collected and also present that information to the other side, so you don't get into this whole dispute around sharing the seed-set for TAR with the other side. You can share information without sharing the documents themselves on the front end to try to get some agreement, maybe decide on custodians, maybe decide to do discovery in stages, maybe take a date range — there are a lot of things you can do to narrow the scope of discovery other than just taking everything, using TAR, and keyword searching.” Brendan Kenny, Esq., Trial Lawyer; Blackwell Burke.

*****
Mike Hamilton is the Director of E-Discovery Programs at Exterro. With a legal and business background, he is experienced and passionate about creating thoughtful, out-of-the-box educational resources that help keep legal teams interested and on top of emerging need to know e-discovery issues.

New Rule 37(e) and Inherent Authority: More Ambiguous than Before

Case #1: Hsueh v. New York State Department of Financial Services, 2017 WL 1194706 (S.D.N.Y. Mar. 31, 2017)

Why this Case is Important

Rule 37(e) does not apply when intentional spoliation occurs, empowering the court to use inherent authority to issue sanctions.

Case Facts

Sexual harassment case in which the plaintiff created a digital recording of her meeting with an HR representative. After spoliation sanctions were filed, the plaintiff found the supposedly deleted audio recording.

Ruling

Based on the court's inherent authority, the court issued an adverse inference against plaintiff. Rule 37(e) did not apply, because the spoliation in this case was intentional.

Case #2: United States ex rel. Scutellaro v. Capitol Supply, 2017 WL 1422364 (D.D.C. Apr. 19, 2017)

Why this Case is Important

Violations of regulatory or contractual obligations are not within the purview of Rule 37(e), empowering courts to issue spoliation sanctions based on inherent authority.

Case Facts

Over seven years, the plaintiff served the defendant with numerous subpoenas, which weren't complied with. The defendant failed to retain relevant “case dispositive” data, thus the plaintiff filed for spoliation sanctions.

Ruling

Since the defendant failed to preserve data in violation of their regulatory duty and not in anticipation of litigation, the court ruled Rule 37(e) did not apply. Based on its inherent authority, the court granted the plaintiff's motion for an adverse inference.

Analysis

“The requirements under Rule 37(e) do not clearly state the conditions for when it should apply. I think that they use the term 'intent to deprive,' which is confusing, because in a lot of the cases they discussed the 'intent to destroy,' and then intent to destroy is mentioned once in the committee notes. So, if it's really about intent to destroy, that's the language that should have been used, and if it was about intent to deprive, but not intent to destroy, it becomes a gray area and leaves confusion.” James Keuning, Director of Practice Support; Briggs and Morgan, P.A.

“I think the Hsueh case sheds light on an area that, in e-discovery, we don't talk about enough, and that is the electronic data that individual plaintiffs have within their “possession, custody, and control,” because whether you're counsel for the defendant of the plaintiff, you don't have a lot of control over that data. So for both, it's very important to use tools, work with a trusted vendor and a trusted tool to be able to capture that data, especially social media data and other employee data that easily disappears. So, working with tools, paying attention to the data, and making sure to capture this data when you can with neither side relying on an individual plaintiff to do it.” Brendan Kenny, Esq., Trial Lawyer; Blackwell Burke.

What Constitutes an Undue Burden in e-Discovery?

Case: Meredith et. al. v. United Collection Bureau, Inc., Case No. 16-01102 (N.D. Ohio, Apr. 13, 2017)

Why this Case is Important

If evidence is proven to be relevant and necessary for litigation, then parties may be compelled to take extensive measures to produce requested data.

Case Facts

In this class action suit, the court rejected the plaintiff's motion to compel, because it was unduly burdensome to conduct a manual review of data. As an alternative, the plaintiff requested that the defendant write a computer program to find responsive data. The defendant refused, and subsequently the plaintiff filed a motion to compel specified data.

Ruling

The court granted the plaintiff's motion based on their justification that the requested data was relevant and necessary for litigation.

Analysis

“I think the lack of cooperation on the defendant's part was a factor in the ruling against the defendant, but I also think that, and there wasn't a mention of this, you might have some applicability of Rule 26(g) here, because the lawyers are saying the information cannot be generated, but then the CIO says it can. So, did the lawyers not talk to the CIO? Rule 26(g) requires that responses be made to the best of the person's knowledge, information, and beliefs formed after a reasonable inquiry. I think the judge was not happy to find out that there was a technical solution to a problem when counsel had said there wasn't.” James Keuning, Director of Practice Support; Briggs and Morgan, P.A.

“You can't rely on blanket rules, and in this case, the defendant used a blanket rule you have heard again and again — that you can't require someone to move heaven and earth and create a computer program to comply with discovery. But the defendant ran into what I would call an unreliable narrator problem, because counsel said this is going to be an unbelievably burdensome process, and then their own chief technology officer said it wouldn't be. The plaintiff also had an expert. If the opposing party is able to present an attractive set of facts for their position to the court, there's probably going to be a way around whatever blanket rule you think is a firewall.” Brendan Kenny, Esq., Trial Lawyer; Blackwell Burke.

A Shift in Your TAR Approach

Case: FCA US LLC v. Cummins, Inc., 2017 U.S. Dist. LEXIS 45212 (E.D. Mich. Mar. 28, 2017)

Why this Case is Important

The debate/controversy continues about when and how to apply Technology Assisted Review (TAR) for identifying responsive data.

Case Facts

In this product liability case, the parties were presented with numerous e-discovery complications. One of the arguments was when to apply TAR: Before or after the application of keyword search terms.

Ruling

The court agreed with the plaintiff to apply TAR to the data set before keyword search.

Analysis

“I think the important question is: What does keyword searching accomplish when we use TAR? Arguably the reason to use keywords is to reduce the data volume, because we pay by the gigabyte for hosting the data in the TAR system, and we often pay premium for gigabyte fees.

We just need to vet the keywords. You run a statistically valid sample of the documents that hit on keywords, and if your analysis of the sample shows that you have a good set of keywords, then go ahead and remove the documents that are not responsive. So, while the logical part of my brain says you do not run keywords before TAR, the practical part says it can be a cost-saving measure, which can be defensively performed, and courts should allow it when supported by the proper quality control workflow.” James Keuning, Director of Practice Support; Briggs and Morgan, P.A.

“Obviously, keyword searching is just a part of e-discovery in many cases, but what about all the things we can find out about the data we're looking at that doesn't require looking at the actual documents themselves or using keywords? There's a lot of information using data visualization and tools that can allow you to see things about the data you've collected and also present that information to the other side, so you don't get into this whole dispute around sharing the seed-set for TAR with the other side. You can share information without sharing the documents themselves on the front end to try to get some agreement, maybe decide on custodians, maybe decide to do discovery in stages, maybe take a date range — there are a lot of things you can do to narrow the scope of discovery other than just taking everything, using TAR, and keyword searching.” Brendan Kenny, Esq., Trial Lawyer; Blackwell Burke.

*****
Mike Hamilton is the Director of E-Discovery Programs at Exterro. With a legal and business background, he is experienced and passionate about creating thoughtful, out-of-the-box educational resources that help keep legal teams interested and on top of emerging need to know e-discovery issues.