Case Law in In 2014, Kroll Ontrack summarized 50 salient ediscovery opinions apportioned by topic as follows: 22% 42%

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2 Contents Case Law in 2014 Procedural Issues: Predictive Coding Preservation & Spoliation: Unique Data Types Production: Scope and Proportionality Sanctions: Delegation of Ediscovery Costs: Shifting and Taxation Case Law Predictions for

3 Case Law in 2014 Sanctions Procedural Issues Costs Preservation & Spoliation Production 14% 13% 9% 42% 22% In 2014, Kroll Ontrack summarized 50 salient ediscovery opinions apportioned by topic as follows: Procedural Issues (13%) such as search protocols, cooperation and privilege Preservation & Spoliation (22%) of ESI, including when the duty to preserve is triggered Production (42%) of ESI for discovery disputes and the methods used Sanctions (9%) for spoliation, production disputes and noncompliance with court orders Costs (14%) such as shifting and taxation costs 3

4 Case Law Trend Procedural Issues: Predictive Coding The benefits of predictive coding are clear: it cuts costs and increases efficiency. In 2014, courts and litigants embraced the issue of predictive coding, with judges across the country issuing milestone opinions. 4

5 1 2 3 The New Mexico State Inv. Council v. Bland 2014 WL (N.M. Dist. Feb. 12, 2014) Fed. Hous. Fin. Agency v. HSBC N. Am. Holdings Inc WL (S.D. N.Y. Feb. 14, 2014) Bridgestone Ams. Inc. v. Int l Bus. Machs. Corp WL (M.D. Tenn. July 22, 2014) relevant documents in a large pay-to-play matter. TAR & predictive coding enabled the reviewers on the document analysis teams to work more efficiently with the documents and identify potentially relevant information with greater accuracy than standard linear review. The court limited the scope of discovery in this case after careful consideration. Predictive coding had a better track record in the production of responsive documents than the human review. The process used to produce documents in this litigation was a herculean undertaking, and that no one could or should expect perfection from this process. Even though it was allowing a party to switch horses in midstream, the court allowed the plaintiff to first cull with keyword search, and then use predictive coding on the remaining documents. The court rejected the defendant s argument that keyword search and predictive coding are incompatible. The judge held that the law firm s investigation into the facts of the matter was sufficient to reach a fair and reasonable settlement with four of the defendants. The court denied the defendants request to challenge the completeness of the document production at risk of opening the entirety of the document production and endorsed predictive coding. The judge upheld the combined use of keyword search and predictive coding, even though there appeared to be a conflicting case management order. 5

6 4 5 Dynamo Holdings Ltd. Partnership v. Comm r of Internal Revenue 2014 T.C. No. 9 (2014) Good v. Am. Water Works 2014 WL (S.D. W.Va. Oct. 29, 2014) Other Important Predictive Coding Cases from 2014 Petitioner s approach would reduce the universe of information on the tapes from upwards of 7 million documents to a more manageable 200, ,000. The Court ruled that the best way to secure the just, speedy, an inexpensive determination of the case, under the rules, would be to use predictive coding. The court allowed predictive coding in response to a production request of ESI on two backup storage tapes that contained both relevant and non-relevant privileged information. The applicability of 502(d) clawbacks to technology assisted review versus manual review was disputed. The defendants wanted to use manual privilege review, but the plaintiffs wanted to rely solely on technology assisted review. The court preserved the option of technology assisted review and encouraged its use in combination with linear review. Progressive Cas. Ins. Co. v. Delaney 2014 WL (D. Nev. May 20, 2014) The court rejected a unilateral decision to utilize predictive coding, and instead ordered the plaintiff to produce all documents produced from the agreed-upon keyword search. F.D.I.C. v. Bowden 2014 WL (S.D. Ga. June 6, 2014). After a plethora of time and expense spent on discovery, the court denied expansive ESI protocol and suggested predictive coding should be used. 6

7 Case Law Trend Preservation & Spoliation: Unique Data Types While the same discussions of duty to preserve ESI and spoliation of data continued in the courts this year, there was a new discussion centered on preservation of unique data types. Among the 22% of cases on preservation and spoliation, courts questioned whether voice memos, text messages and social media accounts needed to be preserved. 7

8 6 7 8 Calderon v. Corporacion Puertorriquena de Salud 2014 WL (D. P.R. Jan. 16, 2014) Painter v. Atwood 2014 WL (D. Nev. March 18, 2014) Automated Solutions Corp. v. Paragon Data Sys., Inc WL (6th Cir. June 25, 2014) Other Important Preservation & Spoliation Cases from 2014 Plaintiffs only produced a portion of the demanded text messages and claimed the others had been deleted. The defendants claimed the plaintiff and her two main witnesses intentionally destroyed text and Facebook messages. The defendants claimed the plaintiff and her two main witnesses intentionally destroyed text and Facebook messages. Ewald v. Royal Norwegian Embassy 2014 WL (D. Minn. Apr. 1, 2014) The court declined to order sanctions because the proportionality element of Rule 26 had been abandoned as the costs and fees of each party outweighed the amount in controversy. When the defendant subpoenaed the cell phone records, they moved to dismiss for spoliation in bad faith. The court found that the plaintiff had spoliated evidence on Facebook, but there was no culpability for the deleted texts. The court found that the plaintiff had spoliated evidence on Facebook, but there was no culpability for the deleted texts. The court ordered an adverse inference instruction to be given at trial due to the plaintiffs attempt to conceal text messages. The court held that plaintiff s counsel should have informed the plaintiff of her duty to preserve Facebook posts and text messages and ordered an adverse inference instruction. The court held that plaintiff s counsel should have informed the plaintiff of her duty to preserve Facebook posts and text messages and ordered an adverse inference instruction. T & E Inv. v. Faulkner 2014 WL (N.D. Tex. Feb. 12, 2014) The court ruled that the use of a bulk file changer to try and hide a failure to produce demonstrated an act of bad faith and imposed sanctions. 8

9 Case Law Trend Production: Scope and Proportionality } At 42% of ediscovery cases this year, production issues dominated the ediscovery opinions in While similar issues surrounding scope of production, clawback agreements and motions to compel abounded, the top two production cases of 2014 reinforced the importance of ediscovery agreements. } 9

10 9 10 Boston Sci. Corp. v. Lee 2014 WL (N.D. Cal. Aug. 4, 2014) Melian Labs, Inc. v. Triology LLC 2014 WL (N.D. Cal. Sept. 4, 2014) Other Important Production Cases from 2014 The defendant produced ESI from one company laptop, but plaintiffs demanded data from a second laptop that the defendant had begun using after litigation commenced. The defendant moved to quash under Fed. R. Civ. P. 45 because the second laptop contained confidential company information. The court concluded that the time to tap flexibility and creativity is during the meet and confer, not after and refused to let the plaintiffs search the defendant s second, non-related laptop. The parties agreed on production stipulations, but then the defendant challenged plaintiff s compliance with that protocol. The plaintiff had produced documents in paper, PDF or TIFF format and not in native format unless it was practicable to do so. The court agreed with the defendant and held that the stipulations controlled the form of production and refused to order native format production. Venture Corp. v. Barrett 2014 WL (N.D. Cal. Oct. 16, 2014) The judge gave the parties Rule 34 lessons on production and ordered the plaintiff to produce organized documents including indexes or tables not just folders. United States v. Vayner 769 F.3d 125 (2d Cir. 2014) The Second Circuit ruled the defendant was entitled to a new trial after the district court erroneously admitted the Russian equivalent of Facebook into evidence. 10

11 Case Law Trend Sanctions: Delegation of Ediscovery Only 9% of the ediscovery cases in 2014 specifically addressed sanctions, though many cases in other topic areas briefly mentioned sanctions. Cases specifically addressing sanctions usually were the result of extreme behavior either hands-off ediscovery management resulting in data loss or obstructive conduct preventing discovery of information. 11

12 11 Brown v. Tellermate Holdings Ltd WL (S.D. Ohio July 1, 2014) Other Important Sanctions Cases from 2014 Plaintiffs only produced a portion of the demanded text messages and claimed the others had been deleted. When the defendant subpoenaed the cell phone records, they moved to dismiss for spoliation in bad faith. Sec. Nat l Bank of Sioux City, Iowa v. Abbott Labs 299 F.R.D. 595 (N.D. Iowa 2014) The court rejected a unilateral decision to utilize predictive coding, and instead ordered the plaintiff to produce all documents produced from the agreed-upon keyword search. Shaw Group Inc. v. Zurich Am. Ins. Co WL (M.D. La. May 12, 2014) The defendant failed to produce ESI after a motion to compel was granted. The court issued a stern warning that continued violations would result in severe sanctions. The court levied severe sanctions against an attorney who was too hands-off with the ediscovery process. 12

13 Case Law Trend Costs: Shifting and Taxation Costs cases, though a small percentage of the total cases (only 14%), were all over the board in Some cases dealt with cost shifting, others with taxation of costs, and some with costs for data storage. 13

14 12 Apple v. Samsung 2014 WL (N.D. Cal. Sept. 19, 2014) The plaintiff sought over $1.5 million in costs for production of documents. To determine the taxable costs, the court established the fees and costs that were associated directly with document production to the defendant not uploading documents to a repository for review and analysis. The court awarded the plaintiff over $238,00 in taxable costs because 16% of its ediscovery costs were spent on production to the defendant. Other Costs Cases from 2014 Wis. Res. Prot. Coun. v. Flambeau Mining Co WL (W.D. Wis. Aug. 1, 2014) The court affirmed taxation of costs. Life Plans, Inc. v. Sec. Life of Denver Ins. Co WL (N.D. Ill. June 25, 2014) The court encouraged a more cooperative discovery plan. Zeller v. S. Cent Emerg y Med. Servs. Inc WL (M.D. Pa. May 20, 2014) The court ordered cost shifting after determining produced ESI benefited both parties. Chavis Van & Storage of Myrtle Beach, Inc. v. United Van Lines, LLC WL (E.D. Mo. May, 2014) The court awarded only a fraction of the ESI costs sought. Kwan Software Eng g, Inc. v. Foray Techs WL (N.D. Cal. May 8, 2014) The court denied costs for data storage. United States v. Shabudin 2014 WL (N.D. Cal. Apr. 8, 2014) The court determined the defendants cause would be prejudiced by plaintiff s cancellation of its database. More Costs Cases The court awarded only a fraction of the ESI costs sought in Chavis Van & Storage of Myrtle Beach, Inc. v. United Van Lines, LLC. The court denied costs for data storage in Kwan Software Eng g, Inc. v. Foray Techs. The court determined the defendants cause would be prejudiced by plaintiff s cancellation of its database in United States v. Shabudin. 14

15 Case Law Predictions for 2015 Looking forward, Kroll Ontrack makes five predictions for the future of ediscovery case law. Predictive Coding will be more widely accepted by more courts. In anticipation of the changes to the Federal Rules of Civil Procedure, courts will more carefully analyze preservation duties and proportionality. New technology devices and concepts associated with the Internet of Things (IoT) will push the scope of discovery boundaries. Sanctions opinions for ediscovery misconduct will continue to diminish, with a handful of notable opinions addressing flagrant ediscovery abuses. Courts will continue to grapple with ediscovery cost allocation. 15

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