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The winter of 2017-18 saw court rulings on e-discovery matters that:
Firefighters' Retirement System v. Citco Group Limited (M.D. La., Jan. 3, 2018)
Winning a motion to compel additional discovery starts with crafting a narrowly tailored request with a reasonable justification. Without those two important components, you'll likely lose.
Case Facts
In this unfair trade practices case, the plaintiffs renewed their motion to compel the defendants to conduct additional searches for relevant information. The defendants argued that this request would be disproportionate to the needs of the case.
The plaintiff had previously filed a motion to compel, which sought an order for the defendants to respond to multiple interrogatories about the defendants” discovery procedures. Within a status conference, the court ruled that a 30(b)(6) deposition would help clarify and answer the plaintiffs” questions.
Unsatisfied with the responses given in the 30(b)(6) deposition, the plaintiffs claim that the witness's responses were “incomplete and inaccurate” leading to a “flawed list of custodians,” resulting in a “flawed electronic search for documents.” Alternatively, the defendants argued that a reasonable search for relevant data was conducted and any subsequent searches were not necessary under Rule 26(b)(1).
Ruling
Expert Opinion
“Cooperation and reasonableness are still the gold standard when it comes to discovery disputes. This case may have turned out differently if the plaintiff had just identified a few additional custodians and search terms, and provided a basis for these additions. The defendants were willing to supplement their production if there was a basis for doing so, but plaintiffs refused to meet them halfway. Don't cut off your nose to spite your face.”
— Cristin Traylor, Esq., Counsel, McGuireWoods
|Fairholme Funds, Inc. v. United States (Fed. Cl. Oct. 23, 2017)
When contemplating discovery procedures, be sure to educate the court on what you think is the most streamlined, cost-effective approach.
Case Facts
While the Court of Federal Claims doesn't often deal with large document e-discovery issues all that often, in this case, shareholders sued the government on a Fifth Amendment claim for a regulatory taking based on the denial of stock dividends.
In the case, the government withheld documents on the basis of privilege, but the plaintiffs did not trust the government's privilege determinations. The plaintiffs sought to compel a “quick peek” at 1,500 documents that were withheld as privileged under procedures spelled out in FRE 502 (d). The defendant refused, explaining that they wouldn't consent to the quick peek and that a “comprehensive review” was already completed.
Ruling
Expert Opinion
“There will always be “gray-area” documents that reasonable people can disagree about, but be as careful as you can in the privilege review. Don't make long-shot arguments. If you think you'd have a 5% or 10% chance of winning an argument that the document is privileged, don't make that argument because that will lose you credibility if the issue comes to a head.”
— David Cohen, Partner and Chair of Records and E-Discovery Group, Reed Smith LLP
|In Re Broiler Antitrust (N.D. Ill., Jan 3, 2018)
If you're going to use technology assisted review (TAR), take a look at the order used in this case, which gives an ideal blueprint for managing the TAR process.
Case Facts
In this class action lawsuit, the plaintiffs alleged that companies in the broiler chicken industry were colluding to limit the supply of chickens to double the prices consumers would need to pay for chicken. In this document-intensive antitrust case, the judge appointed a special master to help the parties resolve e-discovery disputes.
The court issued a long, very detailed procedure for how the parties were to conduct TAR, including search, validation and document sourcing approaches. The order is split into three primary sections: 1) How the parties will act; 2) what search technologies will be used; and 3) outlines a document review validation protocol.
Ruling
Expert Opinion
“Five years ago, people were predicting that human review was going to be going away and everything was going to be replaced by TAR. It hasn't happened. I have these conversations in almost every case with more than 25,000 documents to review: Can we use TAR to speed it up? More often than not, the answer is no. Parties are afraid to use TAR, because they're afraid of these kinds of details, negotiations, and court battles that will end up costing more than the savings.”
— David Cohen, Partner and Chair of Records and E-Discovery Group, Reed Smith LLP
|In looking at key lessons learned from these three important e-discovery case rulings from the winter of 2017-18, legal professionals should bear in mind:
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Mike Hamilton is the Director of E-Discovery Programs at Exterro. With a legal and business background, Mike 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.
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