All posts in Case Law
Failure to Preserve Interactive Website Data Held Insufficient to Impose Sanctions Under Rule 37(e)
FTC v. Directv, Inc., 2016 U.S. Dist. LEXIS 176873 (N.D. Cal. Dec. 21, 2016)
Jury to Decide Issue of Intent for Spoliation
Cahill v. Dart, 2016 U.S. Dist. Lexis 166831 (N.D. Ill. Dec. 2, 2016)
Australian Court Takes Predictive Coding Down Under
McConnell Dowell Constructors (Aust) Pty Ltd v. Santam Ltd & Ors (No 1),
 VSC 734 (Dec. 2, 2016)
Illinois State Court Leverages Proportionality Standards in FRCP 26(b)(1) to Determine if Forensic Imaging is too Intrusive
Carlson v. Jerousek, 2016 IL App (2d) 151248 (Ill. App. Ct. 2d Dist. 2016)
Kansas Court Rejects Proportionality Arguments and Boilerplate Objections
Duffy v. Lawrence Mem. Hosp., 2016 U.S. Dist. LEXIS 176848 (D. Kan. Dec. 21, 2016)
Editor’s note: this article originally appeared in Legaltech News.
Of the many changes that emerged from the 2015 FRCP amendments, none has spurred uncertainty within the legal community as much as Rule 26(b)(1) and its emphasis on proportionality. Judges and counsel alike have wrestled to apply the new rule, leaving 2016 case law rife with complex, fact-based interpretations. Even the Sedona Conference issued a publication addressing this issue in their recent publication, Commentary on Proportionality in Electronic Discovery (with public comments due Jan. 31, 2017). As we head into 2017, one conclusion is certain: Proportionality is here to stay.
What Is Proportionality?
Rule 26(b)(1) provides a list of factors, requiring parties to take into account “the amount in controversy,” “the parties’ resources” and “the importance of the issues at stake in the action,” among other factors. At its core, proportionality is about balance, ensuring that parties receive the information they need to plead their claims and argue their defenses, while curtailing expensive and time-consuming waste. While the concept of proportionality seems simple enough, applying it can be difficult for parties.
One mistake counsel make is to look at the factors involving monetary expenditures and stop their analysis there. However, as the Sedona Conference Publication indicates, this is just the beginning of the analysis. Courts care about the claims at issue, and they still have the same commitment to ensuring that parties will have the relevant information that they need. Relevance still matters, but it no longer stands alone. Courts are now more likely to say “no” to requests that are designed to burden parties and have relatively little value.
Another mistake that counsel make is to tell a judge that a discovery request is not proportional but then offer no suggestion as to how a request can be altered to make it so. If a discovery request is too broad, offer a suggestion as to how it can be narrowed, and be prepared to show the court documentation for costs involved. Where scope of discovery is in dispute, show the court a willingness to cooperate and be in contact with the opposing party when issues arise, rather than filing a motion to compel at the first sign of conflict. In 2017, more Rule 26(b)(1) opinions will have judges admonishing parties for failing to attempt to cooperate with each other. In fact, in the latter part of 2016, judges were increasingly reminding parties that the court is a last resort—not the first—when it comes to managing scope of discovery.
What We Have Learned in 2016
A blanket rule cannot be crafted to determine whether a request is proportional. In many of the Rule 26(b)(1) opinions in 2016, the courts took each specific discovery request and applied proportionality to the facts at hand. While judges might not be able to define proportionality, they recognize it when it is presented to them. When the proportionality analysis is so fact-specific, the job of counsel is to demonstrate to a judge how proportionality can work in the case. In a world buried in data, to be successful in gaining access to the most critical information, counsel must see proportionality as a tool and not a constraint.
In 2017, the expectation will be even higher for counsel to have adopted and be proficient with the new rules. Judges will have less and less patience for those who still apply the old “reasonably-calculated” language of Rule 26(b)(1). While in 2016, some courts themselves were still applying the old standard, in 2017, courts will expect parties to have fully acclimated themselves to the new rule. Courts are getting tired of paring down broad discovery requests and instead are sending the dispute back to the parties with orders to attempt to resolve the issue themselves.
Before the 2015 amendments took effect, the legal community was unsure whether the new emphasis on proportionality meant a material change in ediscovery. The opinions of 2016 have shown that judges have more than wrestled with proportionality; they have embraced it. Gone are the days in which parties can ask for everything and, frankly, strategic litigators know they do not want to be overwhelmed with all that useless data. 2017 will be the year of proportionality, and it is up to counsel to keep pace.
All good things must come to an end; even a great year in ediscovery.
As another year wraps up, we look back at a year that brought great changes to ediscovery. There is no better time than now to remember the highlights of ediscovery case law in 2016. The arrival of the FRCP amendments in December 2015 altered ediscovery practice and set new precedents. The duty to preserve, a new emphasis on proportionality and the intent to deprive dominated ediscovery judicial opinions as courts applied the new FRCP amendments.
Beyond the domination of preservation, proportionality and production, Kroll Ontrack’s analysis of 57 significant state and federal ediscovery opinions led to the classification of 4 major categories that arose most commonly in 2016 ediscovery case law. The most important of these cases are summarized in Kroll Ontrack’s guide, Top Ediscovery Cases of 2016. This guide includes the following topics and cases:
56 percent of opinions dealt with disputes involving production and the methods used, and arguments about proportionality and the scope of discovery.
- Fulton v. Livingston Fin., 2016 U.S. Dist. LEXIS 96825 (W.D. Wash. July 25, 2016)
- Carr v. State Farm Mut. Auto. Ins., 312 F.R.D. 459 (N.D. Tex. 2015)
- Jackson v. E-Z-Go. Div. of Textron, 2016 U.S. Dist. LEXIS 146951 (W.D. Ky. Oct. 24, 2016)
- Gilead Scis. v. Merck, 2016 U.S. Dist. LEXIS 5616 (N.D. Cal. Jan. 13, 2016)
32 percent of opinions dealt with disputes involving preservation, spoliation and motions for sanctions.
- Orchestratehr v. Trombetta, 2016 U.S. Dist. LEXIS 51405 (N.D. Tex. Apr. 18, 2016)
- Living Color Enters. v. New Era Aquaculture, 2016 U.S. Dist. LEXIS 39113 (S.D. Fla. Mar. 22, 2016)
- Marten Transp. v. Plattform Adver., 2016 U.S. Dist. LEXIS 15098 (D. Kan. Feb. 8, 2016)
- GN Netcom v. Plantronics, 2016 U.S. Dist. LEXIS 93299 (D. Del. July 12, 2016)
- Cat3 v. Black Lineage, 2016 U.S. Dist. LEXIS 3618 (S.D.N.Y. Jan. 12, 2016)
4 percent of opinions addressed cost considerations, such as cost shifting and taxation of costs.
- R. Med. Emergency Grp. v. Iglesia Episcopal Puertorriqueña, 2016 U.S. Dist. LEXIS 99391 (D.P.R. July 26, 2016)
- Elkharwily v. Franciscan Health Sys. 2016 U.S. Dist. LEXIS 99795 (W.D. Wash. July 29, 2016)
9 percent of opinions discussed procedural issues, such as search and predictive coding protocols.
- Dynamo Holdings v. Comm’r of Internal Revenue, 2016 WL 4204067 (T.C. July 13, 2016)
- Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016)
- Pyle v. Selective Ins. Co. of Am., 2016 U.S. Dist. LEXIS 140789 (W.D. Pa. Sept. 30, 2016)
- In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016)
The guide also includes a special section on International Predictive Coding, discussing the major opinions to emerge from overseas.
- Pyrrho Investments Ltd. v. MWB property Ltd.,  EWHC 256 (Ch)
Looking for more? Check out our Top Ediscovery Cases of 2016 guide to review these significant ediscovery cases.
Failing to Cooperate Has Negative Consequences for Party
Venturedyne, Ltd. v. Carbonyx, Inc., 2016 U.S. Dist. LEXIS 157722 (N.D. Ind. Nov. 15, 2016)
Court Holds “Skepticism” Not Enough for Computer Forensic Search
Coast to Coast Eng’g Servs. v. Roop, 2016 U.S. Dist. LEXIS 154758 (D. Me. Nov. 8, 2016)
Court States “Old Habits Die Hard” With the New FRCP
In re Bard IVC Filters Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 126448 (D. Ariz. Sept. 16, 2016)
Court Upholds High Bar for Sanctions
Richard v. Inland Dredging Co., LLC, 2016 U.S. Dist. LEXIS 134859 (W.D. La. Sept. 29, 2016)
Court Finds Lesser Sanctions of District Court Sufficient
BMG Rights Mgmt. (US) LLC v. Cox Communs., Inc., 2016 U.S. Dist. LEXIS 105981 (E.D. Va. Aug. 8, 2016)
Ediscovery professionals are celebrating the one-year anniversary of the amendments to the Federal Rules of Civil Procedure. With 365 days of applying the new rules, now is a great time to ask: What’s been the impact of the FRCP amendments?
How do you think the amendments have impacted ediscovery practices? What about preservation practices in Rule 37(e)? Clawback motions? The questions are simple and we want to know what you think.
After you answer five easy questions about how the FRCP amendments have impacted ediscovery practices, you will be entered to win a Kindle Paperwhite e-reader.
Court Declines to Compel a Party to Utilize Predictive Coding
In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016)
No Obligation to Produce Information Outside of a Party’s Legal Right of Control
Jackson v. E-Z-Go. Div. of Textron, Inc., 2016 U.S. Dist. LEXIS 146951 (W.D. Ky. Oct. 24, 2016)
Court Grants Discovery Objection that Was Stated With Specificity
Arenas v. Unified Sch. Dist. No. 223, 2016 U.S. Dist. LEXIS 143338 (D. Kan. Oct. 17, 2016)
Court Holds It Will Not “Micro-Manage” Ediscovery; Orders Parties to Meet and Confer about Search Terms
Pyle v. Selective Ins. Co. of Am., 2016 U.S. Dist. LEXIS 140789 (W.D. Pa. Sept. 30, 2016)
“No Emails Found” is Insufficient; Court Requires Party to Explain Steps Taken to Locate Responsive Email
Carter v. Cummings, 2016 U.S. Dist. LEXIS 137118 (W.D. Wis. Oct. 3, 2016)
Court Clarifies that Data Must be Permanently Deleted for Sanctions
Erhart v. BofI Holding, Inc., 2016 U.S. Dist. LEXIS 129906 (S.D. Cal. Sept. 21, 2016)
Court Issues a Cornucopia of Sanctions for Discovery Violations
Arrowhead Capital Fin., Ltd. v. Seven Arts Entm’t, Inc., 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016)
Court Compels Party to Identify Knowledgeable IT Personnel
Collins v. St. Paul Fire & Marine Ins. Co., 2016 U.S. Dist. LEXIS 135615 (D. S.D. Sept. 30, 2016)
Court Orders Party to Attempt On-Site Data Collection
Sky Med. Supply Inc. v. SCS Support Claim Servs., 2016 U.S. Dist. LEXIS 121215 (E.D.N.Y. Sept. 7, 2016)
Court Discusses What Constitutes Reasonable Steps for Preserving Text Messages
Shaffer v. Gaither, 2016 U.S. Dist. LEXIS 118225 (W.D.N.C. Sept. 1, 2016)
Court Will Not Force Responding Party to Use TAR; Judge Peck Authors another Key Predictive Coding Opinion
Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016)
Proportionality Factors Persuade Court to Grant Motion to Compel
First Niagara Risk Mgmt. v. Folino, 2016 U.S. Dist. LEXIS 106094 (E.D. Pa. Aug. 11, 2016)
Court Limits Request for Social Media to Certain Relevant Information
Baxter v. Anderson, 2016 U.S. Dist. LEXIS 110687 (M.D. La. Aug. 18, 2016)
Court Holds that Predictive Coding Does Not Change Discovery Standard
Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, No. 2685-11, 8393-12, 2016 WL 4204067 (T.C. July 13, 2016)
Court Refuses to Compel Production of Archived Emails on Backup Tape
Elkharwily v. Franciscan Health Sys., 2016 U.S. Dist. LEXIS 99795 (W.D. Wash. July 29, 2016)
The first couple of months after the Federal Rules of Civil Procedure (FRCP) amendments were enacted in December 2015 changed the ediscovery atmosphere. During that time, it was unknown to practitioners whether the changes to Rules 26(b)(1) and 37(e) would create any reaction by the courts, much less if they would substantially influence the course of discovery. The early opinions became a sounding board as both courts and parties struggled with the challenges of interpreting the new amendments and the impact they would have on their cases.
In just a few short months, the 2015 amendments will be one year old and many courts now have established expectations based on the new rules. Practitioners can no longer afford to ignore the changes. In order to help practitioners avoid making their case a lightning rod, Kroll Ontrack has compiled a number of useful resources published this summer to help you navigate the current framework.
Summer 2016: New Ediscovery Resources
- Published in mid-August 2016, Gibson, Dunn & Crutcher’s report, 2016 Mid-Year E-Discovery Update, highlights the current trends of courts in regards to 26(b)(1) and 37(e).
- Kroll Ontrack’s e-Book, 6 Months of Case Law Under the New FRCP, which is mentioned in the Gibson, Dunn & Crutcher report, gives a six month overview of cases which have had the most impact due to the new amendments.
- Nationally renowned ediscovery expert, Tom Allman, has released a new treatise entitled, Applying the 2015 Civil Rules Amendments. The article provides useful background information on the formation of the new amendments, as well as an analysis of how the rules are being utilized by the courts.
- The recent Sedona Conference publication, TAR Case Law Primer, offers a comprehensive overview of the jurisprudence surrounding the use of TAR. The primer also includes a discussion of the use of TAR in an international context.
Don’t miss out on these great new resources!