NEWS YOU CAN USE : 2018 eDiscovery Case Decision Highlights

Here are eDiscovery Case Highlights from 2018. They are “News You Can Use” because each of them comes with a caution and a best practice you can leverage in your advice to in-house counsel, outside counsel, business clients and the technology and legal teams on which you work.

AL OTRO LADO, INC v NIELSEN 3:17-CV-02366-BAS-KSC (U.S.D.C. S.D Ca) Sept. 17, 2018

A motion for discovery protective order was denied in a class action alleging restriction of access to asylum process. The Court concluded that the U.S. had only taken into consideration its own IT capabilities and not the full range of preservation obligations it had.

SUBJECT MATTER: FRCP 26(c) Motion for Protective Order

NEWS YOU CAN USE: Make a strong effort early in the case to identify all the sources of ESI that may be relevant and how you will preserve them.  An early preservation protective order can give you a tactical advantage if you are willing to identify to your opponent early in the case what ESI you are preserving, and what ESI is in or outside of your view of the scope of discovery.

KLIPSCH GROUP INC. v EPRO ECOMMERCE 880 F.3rd 620 (2nd Cir.) Jan 25, 2018

The Second Circuit ruled that $2.7 million plus other sanctions were appropriate and proportional because of the costs associated with rectifying respondent’s bad faith during discovery. The responding party had left a “trail of false and misleading representations” throughout the discovery process, yielding “evident uncertainty about the plausibility, as well as the accuracy, of the [its] current factual assertions …”

SUBJECT MATTER: FRCP 37(e) Sanctions for Intent to Deprive

NEWS YOU CAN USE: The 2015 revisions to FRCP 37(e) provide parties great relief from “strict liability” for loss of ESI that should have been preserved. However, the new rule lowers the boom on litigations who intentionally seek to deprive an opposing party of relevant ESI, and the Courts are not squeamish about imposing significant sanctions.

CARPENTER v UNITED STATES 585 U.S. __, 138 S. Ct. 2165 (Jun. 22, 2018)

In this criminal case, the United States Supreme Court analyzed the seizure of cell site location information (CSLI) without a warrant. CLSI was argued to be the “business data” of the third party and subject to an exception under the Stored Communications Act. The Court deemedCLSI to be within the individual’s expectation of privacy, not voluntarily, but routinely turned over.  “Cell phones and the services they provide are “such a pervasive and insistent part of daily life” that carrying one is indispensable to participation in modern society…[A] cell phone logs a cell-site record by dint of its operation, without any affirmative act on the user’s part beyond powering up.

SUBJECT MATTER: 4TH Amendment of the U.S. Constitution; Stored Communications Act

NEWS YOU CAN USE: Assume that this definition of CLSI will seep into eDiscovery requests under the FRCP. This is a narrow 5-4 decision with two dissents. It does not affect or call into question other sources or conventional surveillance tools such as security cameras or other business records that might incidentally reveal location information.

WAYMO v UBER 17-00939 N.D. Cal. Jan. 29 2018

Among many eDiscovery arguments in this case, Waymo alleged that Uber was using Wickr to hide its tracks in a long-running IP feud. “Uber’s use of ephemeral messaging may be used to explain gaps in Waymo’s proof… but such evidence will not be permitted, however, to the extent that it becomes cumulative, invites improper speculation, vilifies Uber without proving much else, or threatens to overwhelm the trial and distract from the merits of the case…. Nor will the Court short-circuit the ordinary process of proof in a jury trial by ushering in such “evidence” through adverse-inference instructions…. Waymo may adduce only that Uber sought to reduce its paper trail by use of ephemeral apps, and Uber in its defense may show that Waymo uses the same kind of apps….”

SUBJECT MATTER: FRCP 37(e) Sanctions in the context of apps with disappearing ESI

NEWS YOU CAN USE: Court specifically said this is not a37(e) ruling, but rather, an exercise of inherent authority. Many organizations use, allow, support, or look the other way when its business people use Wickr, Signal, and others that can make both the sent and received messages disappear on reading or according to a schedule. Consider how it affects discovery obligations.  Consider also that the USDepartment of Justice has said that “[T]he following items will be required fora company to receive full credit for timely and appropriate remediation [ofFCPA violations]…“Appropriate retention of business records, and prohibiting the improper destruction or deletion of business records, including prohibiting employees from using software that generates but does not appropriately retain business records or communications.” [Timely and Appropriate Remediation in FCPA Matters November 2017 jm-9-47000 FCPA.]

EPAC v HARPERCOLLINS CHRISTIAN PUB 3:12-cv-00463 (M.D. Tenn.)March 29 2018

In this “quagmire of adversarialism,…passed through the dockets of six district judges and two magistrate judges, Plaintiff moved for sanctions on the spoliation of “at least 750,000 messages and attachments”through arrogance by management, lack of initiative byIT, and pitiable lack of legal leadership…” The boilerplate legal hold letter was not tailored to the specific needs of the case; counsel and management provided no follow-up; and the respondent was late (by 3 years!) to inform the records manager that there is a legal hold.

SUBJECT MATTER: FRCP 37(e) Sanctions for Prejudice to Requesting Party

NEWS YOU CAN USE: Counsel has the duty accurately to craft the legal hold, to understand how it is being accomplished, and to monitor and audit its enforcement. Courts will use their authority to cure prejudice for spoliation even if there is no finding of intent to deprive.

LAWRENCE v. CITY OF NEW YORK 15-cv-8947 (SDNY) July 27, 2018

Plaintiff produced PDFs of photos two years after she alleged that police caused damage when they entered her home. City requested forensic copies of the phones used to take the photograph, based on conflicting testimony about who took what photos when. Right-click metadata showed that the photos were taken just days before their production. Plaintiff’s attorney claimed he didn’t know, hired ethics counsel, and was fired before he could withdraw. The Court dismissed the case citing its inherent power to impose sanctions, but limited sanctions based on plaintiff’s poverty. 

SUBJECT MATTER: Court analyzed but did not use the following to make its decision: FRCP Rule11: “a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law.”FRCP Rule 26(g), attorney certifies that after reasonable inquiry, the production is: (1) “complete and correct as of the time it is made”; (2) consistent with existing law;(3) “not interposed for any improper purpose…” FRCP “Rule 37 does not apply to this situation. This rule “provides generally for sanctions against parties or persons unjustifiably resisting discovery….”

NEWS YOU CAN USE: A Court may use its inherent power to impose the ultimate sanction of dismissal, based on prejudice or other wrongdoing, even without FRCP 37(e). An attorney contemplating the use of a“smoking gun” or other potentially dispositive item of ESI should thoroughly examine its origin and chain of custody and be prepared to authenticate it fully. An attorney should investigate and document the sources and means of collecting important ESI. Self-collection has its perils.


A highly detailed ESI protocol ordered de-duplication, threading, domain analysis, targeted collections, exception reporting, custodians, search term protocols, TAR software and methodology, disclosure of sources and custodians searched and not, and elusion testing, to provide quality control and testing for the development of search terms and TAR results. Sampling levels of 95% confidence with a margin of error of +/-5% was deemed sufficient for quality control of coding documents responsive and non-responsive. Sampling at 95% +/-2% was deemed sufficient for testing the universe of documents not reviewed to see what may have been left behind. This latter kind of sampling is known as “elusion testing”, to test the volume of potentially responsive material that eluded search and review.


NEWS YOU CAN USE: Quality assurance testing should be built into the development of search terms and the use of TAR (Technology-AssistedReview). The amount of testing that can accomplish reasonable goals may involve only the review of between 500 and 2000 documents, even in eDiscovery projects involving millions of documents.

IN RE: VOLKSWAGEN “CLEAN DIESEL” MDL4967, MDL 2672 (N.D. Cal) April 24, 2018

Motion to compel “documents provided to US, NY and CA government agencies in the United States in connection with investigations…”  Respondents argue that the investigations are not co-extensive with Plaintiff’s claims.  “A party “may obtain discovery of any non-privileged matter that is relevant to their claims or defenses and that is proportional to the needs of their case. See Fed. R. Civ. P. 26(b)(1).The traditional route for obtaining document discovery is to serve subject-matter-specific requests for production, which “must describe with reasonable particularity each item or category of items to be inspected.” Fed.R. Civ. P. 34(b)(1)(A.”)….“The document requests or subpoenas issued by the federal and state agencies to [Respondent] are not before the Court. And because those investigations are confidential and ongoing, the [Plaintiffs]acknowledge that [Respondents] have not told them “what was produced, to which entities and when productions were made.”

SUBJECT MATTER: FRCP 26(b)(1) Proportionality; FRCP 34(b)(1)(A) Specificity of Requests

NEWS YOU CAN USE: Discovery is limited to “claims and defenses” and the specific discovery requests. A requesting party does not automatically gain production of materials produced in a prior or ongoing investigation. Cf. Schneider v. Chipotle Mexican Grill, Inc., No. 16-cv-2200-HSG (KAW), 2017 WL 1101799 (N.D. Cal. Mar. 24, 2017) in which Plaintiffs submitted with their motion to compel the complaint in the other action, which allowed the court to conclude that they contain “the same legal claims based on the same facts.”

IN RE: DOMESTIC AIRLINE TRAVEL ANTITRUST LIT 1:15-mc-01404 (D.D.C. Sept 13, 2018).

During pre-class certification discovery, Plaintiffs filed a Rule 16(b)(4) motion to extend discovery, based on unexpected volume of production after a respondent’s TAR review and production. An agreed-upon TARProtocol included recall at 75% and precision at a “reasonable level”.Respondents provided their validation set the day before the due date identifying recall at 85% and precision at 58%. Plaintiffs’ own testing after receiving the production showed recall at 97.4% and precision at 16.7% on 3.5million documents produced, a million more than all other defendants combined, and a calculation of roughly only one document out of five actually responsive.  Finding no prejudice to any party, the Court allowed the extension of time.

SUBJECT MATTER: FRCP 26; ESI Protocols; Technology-AssistedReview (TAR) Precision and RecallNEWS YOU CAN USE: A dogmatic approach to using TAR is not particularly useful. Negotiating particular precision and recall for a TAR review in advance does not necessarily yield the expected results. Parties must continue to meet-and-confer during the review to identify how “rich” the collection may be and how large the production may become. Parties using TAR should be prepared with its metrics to change course to employ additional modes of filtering and machine learning.

[1] These cases were presented as “NEWS YOU CAN USE” for the Women In eDiscovery Los Angeles Chapter meeting on January 16, 2016 at Buchalter, PC

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