All posts tagged case law

October 2017 Ediscovery Case Summaries

Court Issues Sanctions for Loss of Cell Phone Data by Non-Party, Holding that “Control” for FRCP 37(e) Applies to Non-Parties
Ronnie Van Zant, Inc. v. Pyle, 2017 U.S. Dist. LEXIS 138039 (S.D.N.Y. Aug. 28, 2017)

Court Declines to Impose Sanctions for Litigation Hold that Gave Employees Self-Preservation Discretion
N.M. Oncology & Hematology Consultants v. Presbyterian Healthcare Servs., 2017 U.S. Dist. LEXIS 130959 (D.N.M. Aug. 16, 2017)

Citing “Reasonably Calculated” in Discovery Request is “All Too Familiar, But Never Correct”
Pothen v. Stony Brook Univ., 2017 U.S. Dist. LEXIS 146026 (E.D.N.Y. Sept. 8, 2017)

Court Emphasizes Equal Use of the Rule 26(b)(1) Proportionality Factors
Oxbow Carbon & Minerals LLC v. Union Pac. R.R., 2017 U.S. Dist. LEXIS 146211 (D.D.C. Sept. 11, 2017)

For Productions “Reasonably Usable Form” (and Not “Form Ordinarily Maintained”) Is the Standard for FRCP 34
Ortega v. Mgmt. & Training Corp., 2017 U.S. Dist. LEXIS 3861 (D.N.M. Jan. 6, 2017)

September 2017 Ediscovery Case Summaries

Court Orders an Aggressive Production Timeline, Citing Efficiencies of TAR
Rabin v. Pricewaterhousecoopers LLP, 2017 U.S. Dist. LEXIS 125404 (N.D. Cal. Aug. 08, 2017)

Court Puts the Brakes on Auto Manufacturer’s Proposed Discovery Protocol Involving an Onerously Restrictive Onsite Inspection
Pertile v. GM, 2017 U.S. Dist. LEXIS 141088 (D. Colo. Aug. 31, 2017)

Court Rules that Asking for Everything is Overly Broad and Unacceptable
Mirmina v. Genpact LLC, 2017 U.S. Dist. LEXIS 90422 (D. Conn. June 13, 2017)

Mere Speculation is Not Enough to Compel an Additional Search for ESI
Mirmina v. Genpact, 2017 WL 3189027 (D. Conn. July 27, 2017)

Privilege Waived as a Result of Reckless Production and Inadequate Clawback Agreement
Irth Sols. v. Windstream Commc’ns, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017)

Antitrust Law in the Era of Trump, Brexit and Technological Innovation

Recently, leading practitioners in antitrust law congregated in Washington, DC to discuss various effects the changing world has on antitrust laws and enforcement. At the Annual Spring Meeting of the ABA Section of Antitrust Law, KrolLDiscovery partnered with The Capitol Forum to create a video series of thoughts and insights from nationally-renowned antitrust experts.

Political change and technological advancement throughout the world has transformed policies and institutions enforcing antitrust law. The new administration of President Trump, Brexit, various policy changes and fast-moving technological advancements all create implications in the many fields of antitrust law. Part one of our video series will focus on how these changes are affecting antitrust law and litigation. Each video is organized with a short description to make it easier for you to decide which of these compelling videos to view first. Enjoy!

DOJ and FTC Involvement in Antitrust Law and Mergers

Watch: The Role of the FTC’s General Counsel featuring Bill Blumenthal, partner at Sidney Austin LLP, as he discusses his experience with antitrust law and merger regulations while acting as former General Counsel for the Federal Trade Commission.

Watch: Major Changes to the Antitrust Guidelines for International Enforcement and Cooperation featuring Jeff Jaeckel, co-chair of Morrison & Foerster’s antitrust law practice group, as he discusses the new DOJ and FTC antitrust guidelines on international law released in January 2017.

Watch: Competitive Effects featuring Ken Reinker, a partner at Cleary Gottlieb Steen Hamilton LLP, as he discusses how agencies review and analyze competitive effects and what impact the new administration will have on this analysis.

Technology’s Role in Merger Review and Antitrust Litigation

Watch: Big Data and Antitrust Enforcement featuring Maurice Stucke, of counsel at the Konkurrenz Group and law professor at the University of Tennessee, as he discusses big data’s impact on the traditional areas of antitrust enforcement and the resulting issues for mergers.

Changing Global Policies Impact U.S. Antitrust Laws

Watch: Global Antitrust Approach featuring Nick Gaglio, a partner at Axinn Veltrop & Harkrider LLP, as he discusses the importance of a global antitrust counsel, complexities of dealing with multiple jurisdictions and the effects of the new administration on global antitrust regimes.

Watch: Impacts of a Changing World featuring Jay Modrall, a partner at Norton Rose Fulbright, as he discusses differences in the Commission’s and CMA’s approach to transactions, the present and future impact of Brexit on global antitrust law, and how to mitigate the ensuing negative consequences.

In the next month, watch for part two of The Capitol Forum series, containing additional interviews with leading antitrust experts.

Last Year’s Cases; This Year’s Practices

Last week I had the opportunity to speak at the February meeting of the Minnesota Association of Litigation Support Professionals chapter. About 50 people gathered for lunch and learning, sharing in a retrospective of ediscovery case law in 2016. This was a chance for me to “go deep” into the facts and holdings of some of the foremost judicial opinions in the past year and, for me personally, the experience was enjoyable. In full disclosure, I have been asked to speak at MALSP on this topic in years past; however, the assignment never grows monotonous. Each year there are always interesting and meaningful developments to discuss, with no shortage of captivating facts.

In addition to examining Bard, Gilead Sciences, CAT3 and Hyles, we talked about how the decisions of 2016 will shape ediscovery law and practices in 2017. There was great consensus that in 2016, courts and parties were finding their footing applying the 2015 FRCP amendments to ediscovery. In 2017, it is anticipated that courts will be off and running, digging into thornier issues as parties make stronger arguments for and against proportionality under Rule 26(b)(1) and sanctions under Rule 37(e). At the end of 2016, I published an article focused on both of these topics and more. As you prepare for ediscovery in 2017, be sure to take five minutes and read “How This Year’s Experience With the New Rules Will Shape Next Year’s Ediscovery.”

Looking Back, Peering Forward: The Top Ediscovery Cases of 2016

The 2015 FRCP amendments are now one year old and there are a full twelve months of case law to guide practitioners through the contours of the new rules. The last year in case law has seen stark developments on how courts interpret the proportionality, levy sanctions, utilize new technologies and reconsider costs to make ediscovery “just, speedy and inexpensive.”

Our webinar, The Top Ediscovery Cases of 2016, updates practitioners on the ediscovery highlights of the past year and features three ediscovery experts, offering the perspective of both counsel and judges:

  • Patrick Oot, Shook, Hardy & Bacon
  • Magistrate Judge Hildy Bowbeer, District of Minnesota
  • Magistrate Judge David J. Waxse, District of Kansas

Rule 26(b)(1): Proportionality Today

The webinar first discusses that the most drastic change of Rule 26(b)(1) is the essential change of mindset. The case Gilead Scis. v. Merck is used as an example to illustrate the place of proportionality in ediscovery. Gilead reveals the required sound reasoning both a party requesting discovery and a party objecting to discovery need to employ. In other words, “now the scope of discovery is neither broad nor liberal…it is proportional.” Attorneys that ignore proportionality do so at their own risk: the case Fulton v. Livingston Fin. is also used to show how the court imposed sanctions on a litigant who made arguments based on the old rule.

Rule 37(e): Sanctions Illustrated

The webinar then discusses the scope of Rule 37(e) and addresses the need to utilize “reasonable steps” to prevent sanctions, as this rule was formed with the intent of curtailing excessive ESI storage. The webinar uses the case Marten Transp. v. Plattform Adver. to show that the scope of a preservation duty is focused: courts expect “reasonable steps,” not perfection. The case Living Color is also used to highlight the fact that parties cannot simply make conclusory statements about prejudice resulting from ESI spoliation without any evidence and expect the court to levy sanctions.

One reason for excessive ediscovery costs is a cultural one and the webinar highlights that Rule 37(e) fits with Rule 1, which was amended for this reason. Cooperation between litigants is a key component of successful preservation, and a panelist observed, “Lawyers too often ignore their obligation to cooperate.”

Predictive Coding: New Frontiers

There are two myths underlying document review discussed in the webinar. The first is the myth that a response to discovery needs to be perfect when in fact the rules call only for “reasonable inquiry.” The second myth is that human review is the best way to ensure responsive documents are not missed when manual review has been shown to be imperfect. In this webinar, the discussion of these two myths sets the stage for asserting that predictive coding technology can be utilized to make ediscovery a more efficient practice.

2017: The Year of Ediscovery

In 2017, one common wish is that attorneys become better educated in ediscovery and the new technologies available. Courts will continue to dissect what constitutes reasonable steps for ESI preservation and also provide additional guidance for when discovery is proportional. Even though counsel may not be proficient in proportionality, the webinar concludes by stating that judges “recognize proportionality when they see it.”

With new opinions continuing to emerge, we expect the ediscovery landscape in 2017 to continue to evolve. Watch this webinar, The Top Ediscovery Cases of 2016, to learn more about the impact of the 2015 FRCP amendments and predictions for the upcoming year.

2017: The Year of Proportionality

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.

2016: Ediscovery Year in Review

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., [2016] EWHC 256 (Ch)

Looking for more? Check out our Top Ediscovery Cases of 2016 guide to review these significant ediscovery cases.

Throwback Thursday: 6 Months of Case Law Under the New FRCP [Webinar]

A Tale of Two Rules

The first six months after the FRCP amendments produced extensive case law as courts and parties grappled with the application of the new rules. In particular, Rule 26(b)(1) with its emphasis on proportionality and Rule 37(e) with its “reasonable steps” language have impacted the ediscovery environment.

To guide practitioners, Kroll Ontrack has compiled an extensive case law digest containing case summaries and analysis to guide practitioners through the nuances of these new rules. In addition to the downloadable e-book, Kroll Ontrack partnered with Judge Elizabeth Preston Deavers of Ohio and nationally renowned civil procedure expert Tom Allman to present a webinar that explored the most prominent cases and developments.

Rule 26(b)(1): The Age of Proportionality

In the webinar, Judge Deavers discussed the changes to Rule 26(b)(1) and their resulting impact on ediscovery. Most notably, the old and often cited “reasonably calculated” language of this rule has been removed, and the rule was revised to emphasize the need for proportionality. Webinar speaker Tom Allman referenced a new research paper he authored, Proportionality Today, which he made available to webinar attendees.

As the new rules take hold, one theme clearly emerges: There is no substitute for specificity. Parties need to be prepared to explain why their discovery request is both relevant and proportional, while parties that are objecting to discovery need to be able to explain why it is not.

In the background of this is newly amended Rule 1, which encourages cooperation between the parties. Keeping discovery proportional and manageable is no longer solely the responsibility of the courts: parties are now expected to do their part to contain the parameters of discovery and resolve any disputes.

Rule 37(e): Preservation Under the Shadow of Inherent Power

In addition to the Rule 26 discussion, Tom Allman reviewed the amendments to Rule 37(e) in regards to sanctions for ESI spoliation and directed webinar attendees to another piece of his research, Applying Amended Rule 37(e). The new language specifies that “reasonable steps” must be taken to preserve ESI, however the rules do not specify what this constitutes, leaving it to the courts to determine depending on the facts of the case.

Despite the lack of explanation of what constitutes “reasonable steps,” the rule clarifies that a party must still have act with intent or “bad faith” before sanctions will be imposed. Suspicious activity or honest mistakes are not enough to warrant sanctions, in most cases. However, if a party acts irresponsibly to preserve evidence, a court may infer a finding of intent.

In addition, Rule 37(e) has attracted attention because some courts are going beyond the parameters of Rule 37(e) and using their “inherent power” to sanction parties. In these cases, the court reached the conclusion that Rule 37(e) did not provide a suitable remedy for the behavior.

With new opinions emerging on an almost daily basis, the impact of the 2015 FRCP amendments continues to evolve, changing the ediscovery landscape.

6 Months of Case Law Under the New FRCP

Six months have passed since the December 1, 2015 amendments to the Federal Rules of Civil Procedure (FRCP) took effect. What has been the impact of the new rules on civil litigation and discovery?

In particular, Rule 26(b)(1) and Rule 37(e) have attracted a sizeable amount of jurisprudence, as both courts and parties grapple with the applications of these new rules. To aid today’s practitioner, Kroll Ontrack analyzed the most significant judicial opinions of the last six months relating to Rule 26(b)(1) and Rule 37(e).

How have the amendments impacted discovery? Download the FRCP case law digest.

Proportionality Reigns Supreme

In the first six months since the 2015 amendment to Rule 26(b)(1), courts have struggled with the removal of the “reasonably calculated” language, and the additional emphasis on proportionality. Pioneering lawsuits have fleshed out the most pressing questions such as what factors matter the most when arguing proportionality? In what way should a party object to discovery under the new rules? Looking at the totality of the case law, one new theme has emerged—there is no substitute for specificity. Both parties are required to state with specificity why they are requesting or objecting to discovery.

Safe Harbors for “Reasonable Steps”

In the past, organizations have been pressured to preserve massive amounts of ESI at tremendous expense. The 2015 amendments have attempted to require only “reasonable steps” be taken to preserve the information. But is it actually advancing adequate data preservation causes? What constitutes “reasonable steps” under the new FRCP amendments? If evidence was preserved and then lost, what level of intent is needed before a court will impose sanctions?

Each of these questions are addressed in Kroll Ontrack’s case summary digest, with the most relevant case law opinions highlighting the expectations from the courts in the first six months since the 2015 FRCP amendments. Download a copy of the FRCP case law digest by Kroll Ontrack, which not only summarizes key findings but also contains a circuit-by-circuit list of judicial opinions referencing FRCP amendments to Rule 26(b)(1) and Rule 37(e).

Still catching up on the 2015 amendments? Download a copy of Kroll Ontrack’s 2015 FRCP Amendments guidebook, which contains each of the December 1, 2015 amendments and full text of the Advisory Committee notes.

Year in Review: Top Ediscovery Cases of 2015

As another year wraps up, we look forward to the holidays and the promise of a new year. There is no better time to remember the highlights of ediscovery case law in 2015. Duty to preserve, emphasis on proportionality and reasonable form of production dominated this year’s ediscovery judicial opinions as courts prepared for the amendments to the Federal Rules of Civil Procedure to take effect December 1, 2015.

Beyond the domination of preservation, proportionality and production, Kroll Ontrack’s analysis of 55 significant state and federal ediscovery opinions led to the classification of 5 major categories that arose most commonly in 2015 ediscovery case law. These significant cases are summarized in Kroll Ontrack’s guide, Top Ediscovery Cases of 2015. This guide includes the following topics and cases:

35 percent of opinions dealt with disputes over production and the methods used.

  • Webb v. Ethicon Endo-Surgery, 2015 WL 317215 (D. Minn. Jan. 26, 2015)
  • Wilson v. Conair Corp., 2015 WL 1994270 (E.D. Cal. Apr. 30, 2015)

20 percent of opinions focused on preservation and spoliation, including when the duty to preserve is triggered.

  • HM Electronics, Inc. v. R.F. Technologies, Inc., 2015 WL 4714908 (S.D. Cal. Aug. 7, 2015)
  • Fidelity Nat. Ins. Co. v. Captiva Lake Invs., 2015 WL 94560 (E.D. Mo. Jan. 7, 2015)
  • Kan-Di-Ki, LLC v. Suer, 2015 WL 4503210 (Del. Ch. July 22, 2015)

16 percent of opinions addressed cost considerations, such as cost shifting and taxation of costs.

  • Comprehensive Addiction Treatment Ctr. v. Leslea, 2015 WL 638198 (D. Co. Feb. 13, 2015)
  • Colosi v. Jones Lang LaSalle Americas, Inc., 2015 WL 1186765 (6th Cir. Mar. 17, 2015)
  • Hanwha Azdel, Inc. v. C&D Zodiac, Inc., 2015 WL 1417058 (W.D. Va. Mar. 27, 2015)

16 percent of opinions discussed procedural issues, such as search and predictive coding protocols, cooperation and privilege.

  • Rio Tinto PLC v. Vale S.A., 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015)

13 percent of opinions issued orders regarding sanctions for spoliation or failure to produce.

  • Parsi v. Daioleslam, 2015 WL 525146 (D.C. Cir. Feb. 10, 2015)
 
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