COALSP 2013 E-Discovery Case Law Update. Drew Unthank Partner Wheeler Trigg O Donnell LLP

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1 COALSP 2013 E-Discovery Case Law Update Drew Unthank Partner Wheeler Trigg O Donnell LLP

2 Agenda Where have we come from? Where are we now? Where are we going?

3 Antacids

4 Where Have We Come From? Litigation holds? Paper-based collections and reviews. Inspection and copying. Paper productions. Hand-placed bates stamps.

5 The Good Old Days

6 Where Are We Now? Social Media Preservation/Spoliation Forms of Production Cost Containment Proposed Rule Amendments

7 Social Media Enemy propaganda Plaintiffs class-action firms trolling for class reps Groups and forums built around consumer discontent Creates self-fulfilling echo chamber Discovery Jackpot Candid, unguarded admissions Pictures are worth a thousand words

8 Social Media Cont. The number of published cases involving social media evidence from 2010 through the first half of 2012 was: 1009

9 Social Media Cont. Pereira v. City of New York, 2013 WL (Queens Sup. Ct. June 19, 2013). ISSUE: Discoverability of private Facebook content over Plaintiff s objection as to relevance. FACTS: Plaintiff suffered injuries in an accident and claimed physical impairment; Defendant produced public photos of golf outings and travel. RULING: Court ordered in camera review of all private content to determine relevance.

10 Social Media Cont. Gatto v. United Airlines, No. 10-CV-1090 (D.N.J. March 25, 2013). ISSUE: Discoverability of private Facebook content over Plaintiff s objection as to relevance. FACTS: Defendant sought social media content to disprove Plaintiff s injuries; Plaintiff deactivated account while motion to compel was pending and all content was auto-deleted before order issued to produce. RULING: Court issued adverse inference instruction based on spoliation of Facebook evidence.

11 Social Media Cont. Alllied Concrete v. Lester, 736 S.E.2d 699 (Va. 2013). ISSUE: Appropriate sanction for Plaintiff s counsel s direction to clean up Facebook content. FACTS: Defendant made routine request for social media content; then discovered directive during post-trial proceedings and moved for mistrial and sanctions. RULING: Court sanctioned Plaintiff s counsel $542,000 and Plaintiff $180,000, but upheld nearly $5 million jury verdict for wrongful death.

12 Social Media Cont. EEOC v. HoneyBaked Ham, 2012 U.S. Dist. LEXIS (D. Colo. Feb. 27, 2013). ISSUE: Appropriate sanction for failure to abide by Court s ESI order for social media. FACTS: Court ordered production of extensive ESI and related devices (e.g., cell phones) and EEOC delayed compliance with production protocol. RULING: Court entered sanctions under Rule 16(f), which does not require finding of bad faith, but did provide for award of fees to HBH for delayed compliance.

13 Social Media Cont. What is Rule 16(f)? Provides for sanctions, including fees, where a party fails to obey a scheduling or other pretrial order. In HoneyBaked, the EEOC violated the Court s ESI order by delaying the discovery process. This is the first published case imposing ESIrelated sanctions under Rule 16(f).

14 Social Media Cont. A final note about the power of Rule 16

15 Social Media Takeaways It s EVERYWHERE Identify and preserve it early Don t try to clean up the content Under Rule 16(f), just enough might not be enough

16 Preservation/Spoliation Sekisui American v. Hart, 2013 U.S. Dist. LEXIS (S.D.N.Y. Aug. 15, 2013). ISSUE: Appropriate sanctions for failure to timely preserve ; Defendant s s entirely deleted. FACTS: files deleted five months after notice of suit, and outside IT vendor not notified of duty to preserve until nearly 20 months after notice. RULING: Magistrate declined to enter sanctions; Judge reversed and ordered adverse inference instruction.

17 Preservation/Spoliation Simon Property v. Lauria, 2012 U.S. Dist. LEXIS (M.D. Fla. Dec. 13, 2012). ISSUE: Appropriate sanctions for willfully destroying relevant ESI. FACTS: Made-for-TV movie RULING: Entry of default against Defendant; all that remained was to determine damages.

18 Preservation/Spoliation Simon Property Cont.

19 Preservation/Spoliation Evans v. Mobile Health Dept., 2012 U.S. Dist. LEXIS 8530 (S.D. Ala. Jan. 24, 2012). ISSUE: Appropriate sanctions for willfully destroying relevant ESI. FACTS: Plaintiff testified to having relevant s and other ESI relating to discrimination claim, but failed to disclose that she burned her computer. RULING: Order awarding fees for bringing motion to compel.

20 Preservation/Spoliation Evans v. Mobile Health Cont.

21 Preservation/Spoliation Takeaways Litigation Holds: Issued from upper levels of management; Issued to outside IS vendors if necessary; Issued as soon as dispute becomes possible. Don t drown it. Don t burn it.

22 Forms of Production Wasniewski v. Sanofi-Aventis U.S., 2013 WL (D. Nev. June 28, 2013). ISSUE: Whether Defendant should have done more than produce documents as kept in usual course. FACTS: Undisputed that Defendant produced documents as kept in ordinary course, but production was so voluminous that Plaintiff complained. RULING: Defendant met requirement of Rule 34 because it provided (1) searchable text, (2) metadata, and (3) a table of contents.

23 Forms of Production Branhaven LLC v. Beeftek, Inc., 2013 WL (D. Md. Jan. 4, 2013). ISSUE: Appropriate sanctions for failing to make documents available for inspection and copying. FACTS: Plaintiff s counsel served discovery responses stating that documents would be made available for inspection and copying, but none were available at the time the responses were served, or for months thereafter. RULING: Award of fees for bringing motion to compel and costs associated with processing untimely production.

24 Production Takeaways Consider going the extra mile by providing a table of contents for voluminous productions. Negotiate form of production in advance. Eliminate vestiges of productions past, e.g., will make responsive documents available for inspection and copying.

25 Cost Containment Pippins v. KPMG, 279 F.R.D. 245 (S.D.N.Y. 2012). ISSUE: Whether KPMG must preserve hard drives for thousands of former employees within potential nationwide class. FACTS: Cost to preserve 2,500 drives was $1.5 million, but KPMG declined Plaintiffs offers to take 30(b)(6) deposition or review five random drives to develop information permitting more targeted requests. RULING: Preservation required because KPMG s position prevented the Court from demonstrating that the drives were irrelevant or duplicative of each other.

26 Cost Containment Cont. Boeynaems v. L.A. Fitness, 285 F.R.D. 331 (E.D. Pa. 2012). ISSUE: Whether putative class members were required to pay costs of discovery sought to support class certification motion. FACTS: Defendant estimated costs of $600,000 to review requested documents, and objected to scope of Plaintiffs requests. RULING: Plaintiffs ordered to pay costs of collection and review of limited scope of documents within the original requests.

27 Cost Containment Takeaways Be reasonable, and negotiate scope up front. E.g., will collect, review, and produce documents from five key custodians, with Plaintiffs obligated to pay cost of further collection Don t be afraid to seek cost-shifting arrangements. It puts motions to compel or for protective orders into perspective. Read Boeynaems! Excellent summary of costshifting authority

28 Where Are We Going? Proposed 2015 Rule Amendments: Sanctions will be more difficult to obtain under Rule 37 due to heightened standards. Negligent destruction of evidence no longer a basis for sanctions. Must prove the destruction either (1) caused substantial prejudice and was in bad faith, or (2) irreparably deprived a party of a meaningful opportunity to present its case.

29 Where Are We Going? The Court in Sekisui disagreed that the burden to prove substantial prejudice should fall on the innocent party. What about Rule 16? May still provide for costshifting. Notice and comment period currently underway.

30 Takeaways Know what you have, where it is, and how it can be preserved and collected. Facebook? Clients should issue litigation holds ASAP Negotiate collection, review, and production agreements in advance Produce in usable format; if production is voluminous, then consider table of contents Don t burn it, or throw it in a river

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