April Edition of Notable Cases and Events in E-Discovery

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1 APRIL 16, 2015 E-DISCOVERY UPDATE April Edition of Notable Cases and Events in E-Discovery This update addresses the following recent developments and court decisions involving e-discovery issues: 1. A decision by Magistrate Judge Andrew J. Peck of the Southern District of New York approving the parties stipulated technology assisted review protocol for documents and noting judicial acceptance of the practice when proposed by the parties and the emerging issue of disclosure of the seed set used in the process; 2. A Northern District of Illinois opinion finding only those electronic discovery costs associated with the conversion of paper documents to electronic versions and the conversion of native files to TIFF files were recoverable by a prevailing party; 3. An Eastern District of New York opinion denying as overbroad defendant s motion to compel access to all plaintiff s cell phone records and Facebook account information but granting defendant access to samples of each to determine relevancy and permitting defendants to renew their request upon a finding of probative evidence; and 4. A Middle District of Florida decision denying defendant s motion to compel a forensic examination of plaintiff s computer for lack of a showing of good cause. 1. In Rio Tinto PLC v. Vale S.A., 2015 WL (S.D.N.Y. Mar. 2, 2015), Magistrate Judge Andrew J. Peck approved the parties stipulated review protocol for the technology assisted review (TAR) of documents, noting judicial acceptance of the practice when proposed by the parties and the emerging issue of disclosure of the seed set used to train the program. The parties submitted for the court s approval a stipulation and order with a cover letter regarding the use of TAR. Instead of simply signing the order, Magistrate Judge Peck issued an opinion because of the interest within the e-discovery community about TAR cases and protocols. Id. at *3. In particular, Magistrate Judge Peck noted the law s development since he had issued what appeared to be the first court approval of TAR in Da Silva Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182 (S.D.N.Y. 2012). In the three years since Da Silva Moore, Magistrate Judge Peck stated, the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it. Rio Tinto, 2015 WL , at *1. Magistrate Judge Peck noted that an issue that remains open is how transparent and cooperative parties need to be with respect to the seed or training set(s). Id. at *2. He pointed out that where the parties do not agree to transparency, the decisions are split and the debate in the discovery literature is robust. Id. at *2. Some courts Sidley Austin provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Attorney Advertising - For purposes of compliance with New York State Bar rules, our headquarters are Sidley Austin LLP, 787 Seventh Avenue, New York, NY 10019, ; One South Dearborn, Chicago, IL 60603, ; and 1501 K Street, N.W., Washington, D.C ,

2 Page 2 have held that the seed documents and other documents used to determine TAR s findings of responsiveness must be disclosed, whereas others have ruled that there is no such requirement. Id. (citations omitted). The issue did not arise in the present case because the parties agreed to disclose all non-privileged documents in the control set. The Magistrate Judge approved the TAR protocol stipulated by the parties but noted it was the result of party agreement and not court order. He viewed the stipulated protocol as being somewhat vague and generic but noted that the parties had also included a cover letter that described some of the TAR processes as provided by the parties respective vendors. Rio Tinto, 2015 WL , at *3. The stipulated protocol and cover letter described, among other things, the process of selecting the control set based on a statistically-valid random sample, the development of a seed set by human reviewers, the development of an algorithm to classify the documents and the assessment of the responsiveness scores and precision level. Id. 2. In Bagwe v. Sedgwick Claims Management Services, Inc., 2015 WL (N.D. Ill. Jan. 27, 2015), Magistrate Judge Young B. Kim held that defendants could recover under 28 U.S.C only those electronic discovery costs associated with the conversion of paper documents to electronic versions and the conversion of native files to TIFF files, but not costs associated with gathering, processing, searching and extracting ESI. Plaintiff Ratna Bagwe brought a Title VII action against Sedgwick Claims Management Services, Inc. and individual defendants. The court granted defendants motion for summary judgment, and defendants filed a bill for costs of $137,654 to recover electronic discovery costs, court reporting costs, reproduction and other costs. More than $113,000 in costs was for electronic discovery. Plaintiff objected to these costs on several grounds, including that she was unable to pay and that defendants were not entitled to electronic discovery costs. In response, defendants lowered the total request to $82,309 and reduced the electronic discovery fees to $57,858. Magistrate Judge Kim ruled that defendants were entitled only to those discovery costs related to conversion of paper to electronic documents and conversion of native files to TIFF files. Federal Rule of Civil Procedure 54(d)(1) permits the prevailing party to recover costs, defined as, inter alia, costs for making copies of any materials where the copies are necessarily obtained for use in the case. 28 U.S.C Although the definition of costs is limited, Magistrate Judge Kim noted, courts have latitude and authority to interpret the meaning of allowable costs. Bagwe, 2015 WL , at *2. The Magistrate Judge pointed out the disconnect between the aging cost rules and the global migration to storing information electronically and interpreted the recovery for copies to include those costs associated with the conversion of ESI into readable format, such as scanning or otherwise converting a paper version to an electronic version or converting native files to TIFF files but excluding costs related to the gathering, preserving, processing, searching, culling and extracting of ESI. Id. at *5 (quoting Massuda v. Panda Express, Inc., 2014 WL , at *6 (N.D. Ill. Jan. 15, 2014)). The Magistrate Judge rejected defendants efforts to seek recovery of broader electronic discovery costs, as well as its efforts to distinguish Massuda and other cases denying recovery of such costs. Bagwe, 2015 WL , at *6 (citations omitted). Thus, defendants were entitled to recover only those costs for electronic discovery associated with converting data into an electronically readable format and were awarded $7,266. Id. at *6-*7.

3 Page 3 Totaling all the costs deemed recoverable, the Magistrate Judge awarded defendants costs to be paid by plaintiff of $22, In Caputi v. Topper Realty Corp., 2015 WL (E.D.N.Y. Feb. 25, 2015), Magistrate Judge Steven I. Locke denied defendants motion to compel access to all plaintiff s cell phone records and Facebook account information but granted defendant access to samples of each to determine relevancy and permitted defendants to renew their request upon a finding of probative evidence. Plaintiff Doreen Caputi brought an action against defendants Topper Realty and others under the Fair Labor Standards Act. The defendants sought access to plaintiff s cell phone records and Facebook account, among other things, to determine whether plaintiff engaged in personal activities during work hours and if there was evidence inconsistent with her claims of emotional distress. Plaintiff resisted defendants discovery requests, and defendants filed a motion to compel. With respect to access to cell phone records, defendants claimed that plaintiff may have made non-work-related phone calls at times that she claimed to be working for defendants. Citing Ritz v. Directory Publishing Solutions, Inc., 2014 U.S. Dist. LEXIS (E.D. Mo. 5/14/14), the Magistrate Judge denied defendants broad request for all cell phone records as a potential fishing expedition. Instead, the Magistrate Judge ordered plaintiff to produce a sampling of her cell phone records covering the relevant period. Caputi, 2015 WL , at *5. If defendants discovered probative evidence namely, evidence that plaintiff engaged in non-work phone calls during working hours the defendants could then renew their application for the balance of the plaintiff s records. Similarly, the Magistrate Judge denied defendants broad request covering five and a half years for a complete history of [plaintiff s] Facebook account, including without limitation all wall posts, status updates, pictures messages, communications to or from [plaintiff s] account and any other content displayed at any time on [plaintiff s] Facebook account. Id. at *5-*6 (internal quotations omitted). Plaintiffs sought this information to establish that defendant was engaged in non-work-related activities during working hours and to rebut claims that plaintiff suffered emotional distress during the relevant time period. In the Magistrate Judge s view, the request for all Facebook information was too broad to withstand scrutiny, as defendants had not established a sufficient predicate showing that this broad class of material is reasonably calculated to lead to the discovery of evidence establishing Plaintiff s whereabouts during the Relevant Time Period. Id. at *6. Plaintiff had not shielded her Facebook account from public view, but the defendants had provided only a single photograph to support their claim, which the Magistrate Judge stated cannot validate such a broad inspection. Id. at *7. The Magistrate Judge denied defendants request for access to such information to establish her whereabouts, finding that such records would be too tangential and not likely to be probative of location information. With respect to the issue of emotional distress, the Magistrate Judge again denied defendants request for full access to plaintiff s Facebook material. Instead, Magistrate Judge Locke noted court decisions in Reid v. Ingerman Smith LLP, 2012 U.S. Dist. LEXIS (E.D.N.Y. 12/27/12) and Giacchetto v. Patchogue-Medford Union Free School Dist., 293 F.R.D. 112 (E.D.N.Y. 2013) that permitted focused discovery of emotional distress

4 Page 4 issues and ruled that defendants could have access to a sample of plaintiff s Facebook information covering November 2011 to November 2013 that made specific references to plaintiff s emotional distress claims or to any alternative source or cause of plaintiff s alleged distress. As with defendants access to cell phone records, the Magistrate Judge permitted defendants to renew their request for the balance of plaintiff s Facebook records upon a showing of probative evidence uncovered from the sampling, if any. Id. at *8. 4. In Bradfield v. Mid-Continent Casualty Co., 2014 WL (M.D. Fl. Sept. 15, 2014), Magistrate Judge Philip R. Lammens denied defendant s motion to compel a forensic examination of plaintiffs counsel s computer for failure to show good cause. Plaintiffs brought an action against Mid-Continent Casualty Company seeking damages relating to structural defects in their custom home. The plaintiffs had negotiated a settlement agreement with the contractors that built the home and then sought to enforce the judgment against the contractors insurance company. The insurance company, in turn, filed documents requests seeking materials relating to the settlement agreement. Plaintiffs produced relevant documents, but the data on a computer of one of plaintiffs attorneys were corrupted as the result of a power surge. Id. at *1-*2. The plaintiffs hired an IT specialist to recover the contents of the damaged computer. Electronic documents and hard copy documents were produced from the damaged computer and from other attorneys involved in the settlement agreement. To determine whether missing documents and files could be recovered, Mid-Continent filed a motion to compel a forensic examination of plaintiffs counsel s computer. Plaintiffs argued that relevant information had been produced, either through documents or deposition testimony. Id. at *2. Magistrate Judge Lammens turned to Federal Rule of Civil Procedure 26(b)(2) governing limitations on the frequency and extent of discovery to resolve this issue. As set forth in the Rule, the requesting party must show that it has a need for discovery that outweighs the costs of locating, retrieving and providing the information. The Magistrate Judge, in particular, pointed to the following factors: the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessible sources, and predictions as to the importance and usefulness of the further information. Id. at *3 (quoting Fed. R. Civ. P. 26(b)(2) comment 2006 Amendment). The Magistrate Judge noted that other courts had found information not readily accessible when a party must hire an expert consultant because the data is not in searchable format. Bradfield, 2014 WL , at *3. The materials here, Magistrate Judge Lammens found, were not readily accessible because counsel s computer was damaged. An affidavit from an expert consultant hired by counsel described the consultant s efforts to recover the lost data to no avail. Id. Magistrate Judge Lammens concluded that defendant had failed to show good cause. Defendant received documents and information in response to its request but was seeking more, but the information provided should have served as the basis for defendant to articulate some basis for why the intrusive search he proposes is necessary due to its importance to the issues at stake in this action. Yet, he has failed to do so. Id. at *3. The Magistrate Judge found that this was simply an instance of the defendant believing there is something more to find, without specifying any missing documents, the type of information sought, or whether such information would be of any importance. Id. at *4.

5 Page 5 In addition, in the Magistrate Judge s view, the defendant could seek information from other sources, and it was likely that any additional discovery would be cumulative or duplicative. Id. While the Magistrate Judge noted defendant s offer to defray the costs of the forensic investigation, he found that defendant still had not justified the intrusiveness of the search and inherent privacy concerns. Id. On balance, Magistrate Judge Lammens found that the request for a forensic examination of counsel s computer was not supported by a showing of good cause, and accordingly, the motion to compel was denied. *** If you have any questions regarding this Sidley Update, please contact the Sidley lawyer with whom you usually work. Sidley E-Discovery Task Force The legal framework in litigation for addressing the explosion in electronic communications has been in flux for a number of years. Sidley Austin LLP has established an E-Discovery Task Force to stay abreast of and advise clients on this shifting legal landscape. An inter-disciplinary group of more than 25 lawyers across all our domestic offices, the Task Force monitors and examines issues and developments in the law regarding electronic discovery. The Task Force works seamlessly with our firm s Litigators who regularly defend and prosecute all types of litigation matters in trial and appellate courts, federal and state agencies, arbitrations, and mediations throughout the country. The co-chairs of the E-Discovery Task Force are: Alan C. Geolot ( , ageolot@sidley.com), Robert D. Keeling ( , rkeeling@sidley.com) and Colleen M. Kenney ( , ckenney@sidley.com). To receive Sidley Updates, please subscribe at BEIJING BOSTON BRUSSELS CHICAGO DALLAS GENEVA HONG KONG HOUSTON LONDON LOS ANGELES NEW YORK PALO ALTO SAN FRANCISCO SHANGHAI SINGAPORE SYDNEY TOKYO WASHINGTON, D.C. Sidley Austin refers to Sidley Austin LLP and affiliated partnerships as explained at