All posts tagged meet and confer

Case Law: Haraburda v. Arcelor Mittal USA, Inc

Case Law

Court Orders Defendants to Issue Litigation Hold Before Rule 26(f) Conference

Haraburda v. Arcelor Mittal USA, Inc., 2011 WL 2600756 (N.D. Ind. June 28, 2011). In this employment discrimination suit, the plaintiff requested the court order the defendant to preserve e-mail evidence, claiming the defendant previously deleted e-mails from the plaintiff’s account without her permission and refused to issue a litigation hold prior to the Fed.R.Civ.P. 26(f) meet and confer. The defendant argued the plaintiff’s request was premature as Rule 26(d)(1) prohibited a party from seeking discovery before the Rule 26(f) conference. Disagreeing with the defendant’s argument, the court noted Rule 26(d)(1) prohibited requesting production – not compelling preservation – and stated that ruling to the contrary would leave a party with knowledge of an intent to destroy evidence without a remedy. Accordingly, the court found the plaintiff could suffer measurable prejudice based on the suit’s heavy reliance on e-mails if evidence was destroyed and ordered the defendant to implement a litigation hold.

Commentary

Although the defendant put forth a novel argument, it failed to acknowledge the obligations each party has to proactively preserve evidence upon the reasonable anticipation of litigation. As the Sedona Conference® notes, the duty to preserve evidence “includes an obligation to identify, locate, and maintain, information that is relevant to specific, predictable, and identifiable litigation”. The Sedona Conference®, Commentary on Legal Holds: The Trigger and the Process.

However, the issue of when the duty actually arises is often a challenging one as different courts have found various triggers to be applicable. Generally, courts recognize that the “mere possibility of litigation” does not trigger the duty to preserve because litigation is “an ever-present possibility” in modern society. Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc.

Recently, the District of Colorado determined that the defendant’s duty to preserve evidence triggered when the plaintiff filed a formal complaint at work (racial discrimination lawsuit), which put the defendant on notice to preserve all existing and future video that included the plaintiff. The defendant failed to do so, and the court found the plaintiff was prejudiced by the defendant’s willful destruction of video recordings. Accordingly, the court issued both mandatory and permissive adverse inference instructions as well as attorney fees relating to the spoliation motion. McCargo v. Texas Roadhouse, Inc., 2011 WL 1638992 (D. Colo. May 2, 2011). In the 2009 case, Goodman v. Praxair Services, Inc., the District of Maryland concluded that the defendant’s duty to preserve triggered following receipt of a letter informing the defendant the plaintiff had consulted attorneys. Further, a ruling from the Southern District of New York found the duty to preserve arose no later than the lawsuit’s filing. Green v. McClendon.

As demonstrated by the sampling of cases above (which by no means present an exhaustive list of possibilities), it is no wonder parties are confused as to when the duty to preserve arises. It is better for parties to be safe than sorry by implementing a written legal hold sooner rather than later if litigation appears to be on the horizon. To increase defensibility, parties should maintain detailed notes of the preservation protocol followed, which includes when the hold was issued, what details were included in the hold, to whom the hold was issued and the efforts taken to continually monitor compliance.

Case Law: Adams v. AllianceOne, Inc.

Case Law

Court Declines to Impose Sanctions Despite Inconsistent Production Formats

Adams v. AllianceOne, Inc., 2011 WL 2066617 (S.D. Cal. May 25, 2011). In this class action suit, the plaintiff requested $17,076.06 in sanctions arguing the defendant committed discovery abuse by producing over 20 million pages of documents in unsearchable PDFs. In response, the defendant argued a PDF was the most useable format available because data extraction from its third party, proprietary software storage system rendered the data unreadable “mush” that could become readable only via printing (impractical due to the volume) or PDF conversion. Further, the PDFs could be searched using commercially available software. Finding the plaintiff did not specify a desired format and noting that past production practices do not dictate future requirements absent a party agreement, the court found no basis on which to impose sanctions. The court additionally found the information was usable and searchable, that translating data between formats was permissible under the Fed.R.Civ.P. and that there was insufficient evidence the defendant acted with willful intent. Although the court remained “less than pleased” with the defendant’s past discovery delays, it withdrew its informal recommendation for sanctions and denied the motion.

Commentary

Production problems continue to plague practitioners despite having rather clearly dictated requirements included in the Federal Rules of Civil Procedure and case law from around the country. In 2010, of the 39 percent of cases that addressed production issues, 27 percent involved production disputes. A separate 18 percent of cases addressed various production considerations (but did not involve sanctions).

In this case, the plaintiff filed for sanctions claiming the defendant violated its production and discovery obligations by producing unsearchable PDFs. However, because the plaintiff did not specify a particular format upfront, the court refused to impose sanctions after finding the format was within the bounds of the Federal Rules of Civil Procedure. This highlights the importance of discussing production formats early at the meet and confer. To have a productive discussion, counsel must be prepared and understand what the best production options for the case are taking into account associated review and production expenses. Production is one part of the ediscovery puzzle that can be negotiated and agreed upon early, theoretically eliminating future disputes which only serve to waste time and money. Act proactively now and save headaches later on.

Case Law: B & B Hardware, Inc. v. Fastenal Co

Case Law

Court Admonishes Parties for “Armed Combatant” Approach to Discovery

B & B Hardware, Inc. v. Fastenal Co., 2011 WL 2115546 (E.D. Ark. May 25, 2011). In this discovery dispute, the plaintiff sought to compel production and requested a hearing to determine what the defendant had done to meet its obligation to produce responsive ESI, forensically image hard drives and conduct a search of 1,182 backup tapes (estimated to cost $84,854,704.90). Characterizing the plaintiff’s motion as peremptory, the court determined the plaintiff failed to abide by Local Rule 7.2(g) of the U.S. District Court for the Eastern District of Arkansas which requires attorneys to confer in good faith before filing a motion to compel. Further, the court noted the defendant produced approximately 31,000 documents within the response period, thus fulfilling its production obligations. Admonishing the plaintiff’s actions, the court declined to compel discovery or grant a hearing. Regarding the issues of forensic imaging and backup tapes, the court found the defendant sufficiently raised objections on the grounds of undue burden and scope, denied the motion and warned the parties to “act less like armed combatants and more like highly skilled professionals” going forward.

Commentary

This case provides an excellent example of a party being too eager to “jump the gun” and file a motion to compel discovery responses. As the court noted, the defendant’s time to respond and produce the requested ESI had not even expired; in fact, the defendant produced the required documents before time ran out.

This case also demonstrates the increased pervasiveness ESI is having throughout jurisdictions nationwide. The Eastern District of Arkansas is not one we read opinions from often (more typically the “major” decisions come from states like New York, California, Florida and Texas) but it is important for practitioners to remember that ediscovery is not limited to a particular state or territory. Practitioners must educate themselves on ediscovery best practices and procedures on a general scale, and then take efforts to understand the local obligations they must fulfill. In this case, plaintiff’s counsel had a duty under the Local Rules of the district court to meet and confer in good faith prior to filing a motion. The plaintiff failed to do so and was admonished by the court. Getting on the court’s bad side is never where a practitioner wants to be. Thus, parties must be familiar with local rules and customs, and model their behavior accordingly.

Case Law: In re Facebook PPC Adver. Litig.

Case Law

Court Orders Parties to Meet and Confer to Develop Discovery Plan and Resolve Production Disputes

In re Facebook PPC Adver. Litig., 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011). In this breach of contract litigation, the plaintiffs sought resolution of various production disputes including a disagreement regarding the development of an Electronically Stored Information (ESI) Protocol. Rejecting as speculative the defendant’s concern that entering an ESI Protocol would frustrate and slow the discovery process, the court ordered the parties to meet and confer to develop an ESI Protocol in light of the “clear thrust of the discovery-related rules, case law, and commentary,” including the Federal Rules of Civil Procedure, case law and the Sedona Conference® that suggest communication is crucial to a successful discovery process. Turning to the production disputes, the court prohibited the defendant from using a secure and restrictive document-viewing website in lieu of actual production, finding the website was unduly burdensome, inefficient and unnecessary in light of a two-tiered protective order. The court also ordered the defendants to reproduce unusable, non-searchable files – including an 18,000 page customer complaint database – in their native format, disclose relevant source code, and meet and confer to determine the appropriate method of production for proprietary documents relating to the dispute.

Commentary

In this case, rather than producing certain documents, the defendant uploaded them onto website, watchdox.com that provided the plaintiff with viewing access, but gave the defendant the ability to limit it in significant ways: restrict access, track viewer activity, set document expiration dates and prohibit searching, annotating and printing. The defendant’s justification for the use of this service in lieu of actual production was that it was necessary to protect the disclosure of “extremely sensitive and confidential” documents. As noted in the summary above, the court denied these justifications and noted that the two-tiered protective order (which the defendant agreed to be bound by) provided sufficient protection to obviate the website’s use. Accordingly, the court ordered the defendant to stop using the website and produce the documents in had uploaded to the plaintiff in a fully accessible form.

Although this opinion is relatively brief in length and scope, it involves certainly a creative attempt to circumvent the more traditional methods of production. After all, cases involving parties withholding documents altogether are very common, but a party offering only limited access via a secure portal is a relatively novel development in the ediscovery world.

This case demonstrates the importance of reaching an agreement regarding the use of these solutions at the meet and confer. The court’s opinion seems to indicate that if the parties had agreed to use the restricted viewing technology before discovery began, it may have been permitted. Taking the time to meet and confer and negotiate mutually beneficial production agreements can pay dividends by potentially avoiding unnecessary, expensive discovery disputes and protecting important party-specific interests.

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Case Law: Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc.

Case Law

Court Grants Motion to Compel Citing Failure to Identify Information Not Reasonably Accessible

Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 2011 WL 1125493 (W.D.N.Y. Mar. 21, 2011). In this business litigation, the plaintiff sought disclosure of internal e-mails relating to its breach of contract claim. Opposing the motion, the defendant argued the request was untimely and that the information sought was not relevant, responsive or readily accessible. Noting the duty to supplement production continues even after the discovery period closes, the court found the requested e-mails were relevant and responsive to the plaintiff’s initial document request. Despite the defendant argument that producing the e-mails would require searching Exchange databases housed on an external 4 terabyte storage array at a cost of $13,000, the court asserted that the defendant had a duty to identify sources of information that were not reasonably accessible in its discovery response and rejected its belated arguments regarding burden. Accordingly, the court determined the defendant’s initial production was incomplete and granted the motion to compel.

Commentary

This case demonstrates the importance of being prepared for the Rule 26(f) meet and confer conference in order to address important ediscovery issues fully and accurately. It is important to engage in these early discussions as well-informed, prepared counsel may find itself in an elevated bargaining position capable of dictating advantageous terms. In the conference, counsel should make efforts to understand the opposing party’s technical landscape, clarify the scope of document requests, resolve any production format disagreements and pre-empt the negative impact of inadvertent production of privileged documents by entering into a clawback agreement. Other ediscovery topics that counsel should discuss include the preservation of evidence, testifying experts, cost allocation and other anticipated evidentiary disputes.

In order to be prepared for this conference, counsel should also understand their client’s electronic information and can achieve this through collaborating with IT personnel and in-house counsel (or the organization’s ediscovery team). A data map, which is essentially an outline of a company’s information systems and processes, is also an incredibly helpful resource in identifying data sources and making determinations regarding accessibility of data – something that was amiss in the current case. Use the data map to strengthen pre-discoverability inaccessibility arguments by providing credible evidence of undue burden and cost. Other technology, such as early data assessment (EDA), can also be helpful in meet and confer preparations. EDA will help you determine appropriate search terms allowing parties to collaborate on this important discussion point. The reporting functions within this technology can also help document the process used to determine search terms and validate the quality of those terms for both hits and non-hits.

Finally, it is important for counsel to discuss the use of advanced technology at this conference and reach a documented agreement regarding whether it is acceptable to use such things as intelligent review technology. Although not discussed in case law yet, reaching an agreement regarding the use of this technology at the Rule 26(f) conference will greatly bolster defensibility. Be prepared to explain to opposing counsel what the technology is and how you plan to use it – a process that may be aided by enlisting the help of an expert .

Case Law: Techsavies, LLC v. WDFA Mktg. Inc.

Case Law

Court Bars Introduction of and Reliance on Relevant Documents Not Timely Produced

Techsavies, LLC v. WDFA Mktg. Inc., 2011 WL 723983 (N.D. Cal. Feb. 23, 2011). In this discovery dispute, the plaintiff requested sanctions alleging the defendant failed to both timely produce documents and respond to an interrogatory. Despite the plaintiff’s multiple complaints that the first production of 32,000 documents was incomplete, the defendant did not produce approximately 120,000 additional responsive documents until after discovery closed, claiming it “moved offices and simply forgot about them.” Agreeing the defendant was on notice of its inadequate responses, the court found the defendant had an affirmative duty to investigate but failed to do so in a timely manner. Further, the defendant did not seek leave of the court before correcting its production. Concluding the defendant was unable to show its conduct was substantially justified or harmless, the court held sanctions were appropriate; however, the court also noted that the plaintiff contributed to the problems as it never moved to compel discovery. Thus, the court barred the defendant from introducing and relying on any untimely produced documents and ordered the parties to meet and confer regarding this issue.

Commentary

Rule 34(b) is often central to numerous discovery disputes. Whether practitioners seem to ignore the importance of this rule, are tied up with concerns relating to other aspects of the discovery process (such as preservation) or simply are unsure of proper production practices is unclear. What is clear is that fulfilling your production obligations appropriately will eliminate many disputes that are inherently unnecessary and costly both in terms of time and money.

In this case, the defendant “simply forgot” about the additional responsive documents claiming it had moved offices. The plaintiff had complained multiple times of the defendant’s incomplete production, but the defendant failed to acknowledge its duty to continue conducting searches for remaining documents that should have been produced. As a result of this failure, the court sanctioned the defendant by barring it from introducing and relying on any untimely produced documents. Had the defendant conducted its due diligence in fulfilling its discovery obligations under the Federal Rules of Procedure, the time and money spent litigating this motion would have likely been unnecessary. In addition, the defendant would not be faced with formulating case strategy with the absence of what could well be critical or influential documents.

A successful production begins with proactive planning. Planning should include determining what production options would be best for the case, including the timing and volume of productions, the output medium and whether multiple productions will be required. Counsel should formulate answers to these considerations prior to the meet and confer conference in order to be prepared to discuss production and other discovery issues. Prepared counsel at this conference will likely be able to secure a more favorable outcome regarding various discovery concerns. Be prepared as well to raise an objection to the format specified by the requesting party if necessary. Also, counsel is well-advised to simply play it straight, avoiding attempts to hide the ball. Nothing positive is gained by conducting discovery in bad faith, other than sanctions that could be detrimental to your case, your client and even your professional reputation and career.

Case Law: Moore, II v. Shands Jacksonville Med. Ctr., Inc.

Case Law

Court Denies Request for Reproduction Citing Parties’ Failure to Confer in Good Faith

Moore, II v. Shands Jacksonville Med. Ctr., Inc., 2010 WL 5137417 (M.D. Fla. Dec. 10, 2010). In this employment discrimination litigation, the plaintiffs moved to compel discovery responses including the reproduction of video surveillance footage. The defendants initially produced DVDs containing the responsive footage; however, the plaintiffs were allegedly unable to view the content without access to a particular type of media software. When informed by the defendants that the necessary software was freely available on the Internet, the plaintiffs claimed they were “insulted” and that accessing the program was not feasible and would cause undue hardship. Arguing the “DVDs were rigged,” the plaintiffs sought reproduction. An unsympathetic court noted the plaintiffs failed to specify the format prior to production and did not attempt to confer in good faith to resolve the issue before seeking relief. Accordingly, the court denied the plaintiffs’ motion as it related to reproduction of the surveillance footage, but ordered production of additional responsive video footage.

Commentary

Similar to Brinckerhoff v. Town of Paradise this case involved a production dispute related to the provisions in Federal Rule of Civil Procedure 34(b). One of the more litigated rules of the 2006 ediscovery amendments, parties continue struggle with production format issues. Significantly, in a large portion of these cases, the parties did not undertake efforts to meet and confer to discuss production format prior to producing, which courts often find would have been of notable help in preventing or resolving the dispute prior to seeking relief in the courtroom. Indeed, in the case summarized above, the court denied the plaintiffs’ motion seeking reproduction citing their failure to make any attempt to meet and confer to discuss the issue with the defendants. Based on that failure, the court determined the defendants’ production was in a reasonably usable form in compliance with Fed.R.Civ.P. 34(b). Parties could avoid many of the headaches and costs associated with litigating these types of disputes by simply meeting with the opposing party prior to undertaking these ediscovery efforts. Counsel should arrive at the meet and confer prepared to discuss what formats they plan to produce in and should make a solid attempt to reach agreement with the other side. Undertaking these cooperation efforts will also help with future arguments to the court in case disputes do arise.

 
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