Legal Tech: Summer 2019 E-Discovery Case Law Review

In this fraud lawsuit, the two parties could not come to terms on what would be produced by the defendants.

After a Rule 26(f) conference, the plaintiffs requested interrogatory responses and data from the defendants. The defendants refused to comply and objected to almost every discovery production request by the plaintiffs, stating that the plaintiffs' requests were:

"vague, overly broad, unduly burdensome … that is irrelevant and/or not reasonably calculated to lead to the discovery of admissible evidence."

Hoping to resolve the dispute, the court held a conference. While it failed to resolve the discovery disagreement, it did unearth the fact that the defendants had not produced any data to plaintiffs. Subsequently, the plaintiffs requested the court order the defendant to comply with their requests.

Ruling

• Judge Rules for Plaintiffs. The court found that the defendants:(1) failed to comply with Rule 26(a)(1), disclosing custodian names with discoverable data; 2) must respond to plaintiffs' requests and "tailor their objections with much greater particularity; and(3) disclose a "statement detailing their efforts to preserve discoverable information."
• Transparency Around Custodians. The defendants only said "corporate representative[s]" held discoverable data. This action was in direct violation of Rule 26(a)(1), which instructs parties to disclose any specific custodians who are "likely to have discoverable information."
• No Boilerplate Language. As numerous other courts have ruled, they will not accept boilerplate language in objections or responses to discovery requests.

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Don't Ask for Everything In E-Discovery

Santana v. MKA2 Enterprises, Inc. (D. Kan. Jan. 8, 2019)

An appropriately tailored production request doesn't ask for "all" of anything. When making such requests, be sure to ask for specific data. If you do ask for "all" of something, make sure you have case precedents or a clearly defined reason for doing so.

Case Facts

In this employment race discrimination case, the defendant moved to compel the plaintiff to produce "all" his mobile phones.

Specifically, the defendant wanted any mobile phone used by the plaintiff from the start of the defendant's employment for "inspection and copying."

The plaintiff objected because he argued the request would produce irrelevant information and would be unduly burdensome on him.

Ruling

• Defendant's Motion Rejected. The court ruled that defendant's request was too broad stating, "Defendant sets out no protocol or process through which the data it deems responsive would be culled from the copy or image of the phone(s) and any responsive and/or privileged data removed or protected."
• Alternative Solution. The court proposed that another request by the defendant for text messages would be a more appropriate, less intrusive measure for obtaining relevant mobile phone data.
• No Supporting Evidence. The defendant offered no case precedents for collecting an entire mobile phone for inspection within discovery. Additionally, the plaintiff had shown no signs of providing "incomplete and inconsistent responses to production requests."

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Deleted Text Messages Lead to Sanctions In Prince Music Case

Paisley Park Enterprises, Inc. v. Boxill (D. Minn March 4, 2019)

Even if you enter into an e-discovery protocol, that protocol does you no good if key custodians in your case don't follow the guidelines. If your key custodians can't be trusted, take precautionary measures to ensure the preservation of relevant data.

Overview

In this infringement case, centering around the deceased artist Prince and his unreleased music, the plaintiffs motioned for spoliation sanctions due to the deletion of text messages from two of the defendant's key custodians.

At the outset the sides agreed on protocols for preserving data. In the midst of e-discovery, the plaintiffs received text messages between the defendants and the defendant's PR firm. Based on the relevance of these text messages, the plaintiffs' requested additional text messages from the defendants' and their PR firm. The defendants could not produce the requested text messages because the phones in question were discarded and backups were not kept.

As a result, the plaintiffs moved for spoliation sanctions.

Ruling

• Spoliation Sanction Granted In Part. The court ruled that the defendants had a duty to preserve and the plaintiffs were prejudiced by the loss of the text messages. But considering that discovery is ongoing, the court deferred ruling on an adverse inference instruction to a later date. Defendants were ordered to pay a $10,000 fine for expenses the plaintiffs incurred.
• Defendants Should Have Preserved the Text Messages. Back in 2017, the defendant sent an email acknowledging the possibility of litigation for releasing Prince's unreleased music. After the case was filed in 2018, the defendants' key custodians not only failed to disengage the auto delete feature on their phones, they wiped and destroyed their phones.

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Analysis

While these three cases ended in "victory" for the plaintiffs, each case had enough ins-and-outs to make them potentially unreliable precedents for future litigations. And currently, there is no case law that establishes a different standard for preservation of text messages vs. some other data format or technology. So while litigators may not be able to demand every bit of data available, it's likely in the best interest of parties to preserve as much data as they can (and that doesn't necessarily mean "collect it") — particularly when the anticipation of litigation arises. So for now, and possibly the foreseeable future, the "Goldilocks zone" of data collection remains a mystery.

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Mike Hamilton, JD 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.