Welcome to the new eLessons Learned

eDiscovery Written by Law Students

eDiscovery Written by Law Students

eLessons Learned features insightful content authored primarily by law students from throughout the country. The posts are written to appeal to a broad spectrum of readers, including those with little eDiscovery knowledge.

Law + Technology + Human Error

Law + Technology + Human Error

Each blog post: (a) identifies cases that address technology mishaps; (b) exposes the specific conduct that caused a problem; (c) explains how and why the conduct was improper; and (d) offers suggestions on how to learn from these mistakes and prevent similar ones from reoccurring.

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Visit our signature feature, e-Discovery Origins: Zubulake, designed to give readers a primer on the e-discovery movement through blog posts about the Zubulake series of court opinions which helped form the foundation for e-discovery. Go There

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What Happens When An Entity’s Record Retention Policy Threatens Spoliation? Policy Suspension and Evidence Preservation

Author: Samantha MonteleoneCase Citation: Houston v. Coveny, No. 14-cv-6609, 2017 U.S. Dist. (W.D.N.Y. Mar. 13, 2017)Employee/Personnel/Employer implicated: New York Department of Corrections and Community SupervisioneLesson Learned: When a retention policy threatens to destroy evidence, courts will suspend the policy and preserve all evidence reasonably related to the pending litigation, for the duration of the case.Tweet This: “Court Orders ‘No Locking Those Records Behind Bars’ in Suit Against NY State Department of Corrections Employees” The United States District Court for the Western District of New York recently ordered the New York State Department of Corrections and Community Supervision (“DOCCS”) to preserve a series of videos and audio recordings related to claims against over 40 of its employees, suspending the DOCCS’ routine policy of retaining recordings for only one year.  Pro se plaintiff Tyrone Houston is an inmate at the Five Points Correctional Facility, in the custody of the DOCCS.  Mr. Houston brought a suit alleging that the defendants, some 40 prison officials, retaliated against him for filing a prior lawsuit, in violation of his constitutional rights.  In a motion to preserve evidence, Mr. Houston asked that the Court order the defendants to preserve eight videos and audio recordings, ranging from September 8, 2015 to December 31, 2015, of his tier and grievance hearings. These video and audio recordings were related to claims included in Mr. Houston’s proposed amended complaint.  In his motion, Mr. Houston attached letters from the DOCCS stating that the recordings (which Mr. Houston requested via the Freedom of Information Law) will be retained for one year, in accordance with the DOCCS’ retention policy. The Court granted Mr. Houston’s motion to preserve evidence, reasoning that the Court may grant a preservation order if “a party can demonstrate that the evidence is in some danger of being destroyed absent court intervention.”  Pointing to Mr. Houston’s exhibits detailing the DOCCS’ retention policy, the Court found it appropriate to ensure that the recordings are preserved throughout the pendency of the case.  The Court noted that although it is not clear that Mr. Houston’s amended complaint will become the operative pleading, the recordings at issue are the subject of pending litigation and thus should be preserved. Accordingly, the Court suspended the DOCCS’ “routine document and retention/detention policy” and ordered the DOCCS to preserve all evidence reasonably related to Mr. Houston’s existing and proposed claims.  One cannot fault the DOCCS for maintaining a routine policy of retaining recordings, even if for only one year.  Certainly, most entities maintain record retention policies these days.  However, when a retention policy threatens spoliation, courts will suspend the policy and preserve all evidence reasonably related to the pending litigation, for the duration of the case. Houston v. Coveny, No. 14-CV-6609-FPG, 2015 U.S. Dist. (W.D.N.Y. June 16, 2015)Houston v. Covey, No. 14-CV-6609-FPG, 2017 U.S. Dist. LEXIS 139740 (W.D.N.Y. Aug. 29, 2017) Samantha Monteleone is a third year law student at Seton Hall University School of Law (Class of 2018).  She was born and raised in New Jersey and has plans to practice in the state after graduation.  She has a passion for all things family law but enjoys reading and writing about all vanguard topics in the law. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When might you be required to preserve certain ESI beyond your routine record retention policy? When that ESI is the subject of pending litigation and a court determines that ESI is in danger of being destroyed pursuant to your policy.

Author: Sarah E. Hsu WilburCase Citation: Houston v. Coveny, No. 14-cv-6609, 2017 WL 972124 (W.D.N.Y. Mar. 3, 2017)Employee/Personnel/Employer implicated: Department of Corrections and Community Supervision (DOCCS)eLesson Learned: A court can order an entity to suspend its routine record retention policy and preserve certain electronically stored information (ESI) related to pending litigation if it determines the ESI is in danger of being destroyed due to that policy.Tweet this: A one-year routine record retention policy could be enough for a court to order certain data under that policy be preserved. Courts generally do not have to order parties to a lawsuit to preserve evidence because Federal Rule of Civil Procedure 37 states that parties must take reasonable steps to preserve material related to litigation. Micolo v. Fuller, No. 15-cv-6374, 2016 WL 158591, at *1 (W.D.N.Y. Jan. 13, 2016). But courts do sometimes issue such an order if a party demonstrates that certain evidence related to pending litigation is in danger of being destroyed without court intervention. Id. That is exactly what happened in this case. The plaintiff, in this case, a pro se prisoner, filed a motion to compel the Defendants, Department of Corrections and Community Supervision (DOCCS) officials, to preserve evidence—specifically video and audio recordings from eight specified dates of Plaintiff’s tier and grievance hearings, which recordings related to claims Plaintiff included in his proposed amended complaint. Plaintiff requested these recordings through a Freedom of Information Law request. In support of his motion, Plaintiff attached letters from DOCCS stating that the recordings he requested would only be retained for one year. Given DOCCS’s one-year routine record retention policy, the court found that the requested recordings were in danger of being destroyed (presumably at the end of that one-year period or at least before the end of the litigation) and thus granted Plaintiff’s motion to preserve the recordings. The court stated an order was “appropriate to ensure the recordings would be preserved throughout the pendency of this case.” Additionally, the court noted that even though a judge had not yet ruled on whether Plaintiff’s proposed amended complaint was sufficient, the court stated the recordings should nonetheless be preserved because they were the subject of the pending litigation. West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). The court accordingly directed DOCCS to suspend “its routine document and retention/destruction policy” and stated that DOCCS was on notice going forward that it must preserve “all evidence reasonably related to plaintiff’s existing and proposed claims.” Luellen v. Hodge, No. 11-cv-6114P, 2014 WL 1315317, at *5 (W.D.N.Y. Mar. 28, 2014) (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003)). Sarah is a Seton Hall University School of Law student (Class of 2018), pursuing an Intellectual Property concentration through the Privacy and Security Law Track. After graduating, she will begin working as a Litigation Associate in a large Manhattan law firm. Sarah graduated from the University of Florida in 2009 with a B.S. in Journalism, and she worked as both a multimedia journalist and a legal assistant before attending law school. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When is a Lost Cell Phone Spoliation? When it was Requested to be Preserved on the Record, and it was used by the Party Claiming it Lost it During the Time it was Lost.

Author: Frank McLaughlinCase Citation: Brown v. Certain Underwriters at Lloyds, London, et al., No. 16-cv02737 (E.D. Pa. June 12, 2017).Employee/Personnel/Employer implicated: Insurance Beneficiary as Plaintiff, Accomplice, InsurereLesson Learned: If you are asked on the record to preserve evidence for discovery, you should not fraudulently claim it is lost or destroy it intentionally when the other party seeks to review said evidence. If you do claim evidence is lost, you must have a reasonable reason as to why it is lost, and there should be no evidence supporting that it is actually not lost and in your possession at the time you claimed it was lost. Imagine if your cell phone could convict you of a crime. Weird to think of; yes. But think of the implications your cell phone straps you with. Cell phones have become more than just a device for placing calls and receiving the occasional text message. Now they have evolved, becoming a crucial tool for tasks like GPS mapping, emails, making NFC payments, and more. With these new capabilities, the areas of law that cell phones become a major part of are virtually limitless. Furthermore, because your cell phone is highly complex technology, nearly every button press or Face ID unlock is recorded somewhere, meaning it can be used as evidence! As Mr. Brown (the plaintiff here) learned, your cell phone, just like any other evidence, should not be tampered with to hinder the opposing party’s case. In Brown v. Certain Underwriters at Lloyds, London, et al. (hereinafter, “Lloyds”), Mr. Brown claimed Lloyds did not compensate him as his insurer, when Mr. Brown’s property burned down. Lloyds had conducted a standard preliminary investigation to see what caused the fire and to access damages. At this preliminary investigation, Lloyds took the testimony of Mr. Brown under oath and requested, on the record, that he preserve any evidence existing on his cell phone for evidence if future discovery were to occur. When the time came for Mr. Brown to produce his cell phone, Mr. Brown simply told Lloyds and the court that it was lost. Nothing more . . . nothing less. Lloyds filed a counterclaim against Mr. Brown claiming spoliation of evidence. Spoliation of evidence exists if (1) the evidence was in the party’s control, (2) the evidence is relevant to the claims or defenses in the case, (3) there has been actual suppression or withholding of said evidence, and (4) the duty to preserve the evidence was reasonably foreseeable. The main issue here was the third element, as the court claimed Mr. Brown clearly knew there was a duty to preserve the evidence based on Lloyd’s prior request. Here is where things get funny. Mr. Brown claimed he lost his cell phone, but he never notified Lloyds that the phone was lost until it was requested by Lloyds, and Ms. Judy Cooks testified against Mr. Brown, providing sufficient evidence, that Mr. Brown sent her text messages during the time Mr. Brown claimed his phone was lost. Not only that, but the messages suggested that Mr. Brown burned down his own property! Ms. Cooks also testified that she never rented space in Mr. Brown’s property, which was required by Lloyds for the fire coverage. This is fraudulent and textbook spoliation. Lloyds wanted the cell phone to trace Mr. Brown’s location and see other contact information related to Mr. Brown’s whereabouts and plans on the night his property burned down. Because Mr. Brown intentionally failed to produce his cell phone for discovery and did so in bad faith, as determined through other evidence proffered by Lloyds, the court ruled Mr. Brown should receive serious sanctions. Mr. Brown’s case was not dismissed, but the jury was instructed to view the lost cell phone as an inference that it had bad, bad stuff on it against Mr. Brown. How could Mr. Brown have avoided this situation? Well, he should have not burned down his own property! That would have been the best strategy most likely. Another solution, though teetering on the dark side with this one, would have been for Mr. Brown to notify Lloyds immediately when he lost his phone (or destroyed it) and for Mr. Brown to have provided some reasonable story of how he lost his phone (e.g. went kayaking in the ocean and it fell into the deep blue sea). He could have also just preserved the cell phone as evidence, which could have potentially saved Mr. Brown from having to pay Lloyds’s costs associated with seeking to have Mr. Brown produce it. But, yeah, Mr. Brown should just have not burned down his own property and, having done so, he should not have filed a claim in court for Lloyds to pay him for his self-inflicted misfortune. That is really the only answer in this one folks. Frank McLaughlin is currently a law student at Seton Hall University School of Law, and he is in his last semester of his 3L year.  Frank has worked throughout law school and continues to work at Lasser Hochman, LLC, where he is a law clerk and focuses on real estate and finance law.  Prior to attending law school, he attended George Mason University, where he earned a B.S. in both finance and economics. After graduating from George Mason University, Frank worked as an accountant and a consultant for a public accounting firm in Washington, D.C., for three years and then worked in the CFO’s office at Prudential Financial, Inc. in Newark, NJ. Want to read more articles like this?  Sign up for our post notification newsletter, here.

How Do You Get Away Without Spoliation Sanctions? Oops, I lost my phone!

Author: Preeya SoniaCase Citation: Charles v. City of New York, No. 12-CV-6180 (SLT)(SMG), 2017 WL 530460 (E.D.N.Y., Feb. 8, 2017).Employee/Personnel/Employer implicated: Plaintiff, resident of Brooklyn, NYeLesson Learned: Plaintiff had the obligation to preserve her video of the police conduct. However, because her phone was lost negligently, rather than with gross negligence, Defendants cannot infer that the lost video would have been favorable. Thus, Defendants would need to establish at trial that the lost video would have been favorable to them.Tweet This: Negligent Plaintiff loses iPhone video of cops – too bad for the cops. In June 2012 Plaintiff was taking a walk in her neighborhood in Brooklyn, NY when she spotted two police officers questioning a group of neighborhood teens. She overheard one of the teens proclaiming that he had done nothing wrong. Taking matters into her own hands, Plaintiff began to approach and asked the officers why they had stopped the teens. Plaintiff, as a tax paying citizen living on the block, believed she had a right to know about a “process on the block.” Thus, she began to record the incident with the cops on her iPhone. As she recorded, the officers repeatedly asked her to step back. She did. Upon the third request to Plaintiff to step back, she refused. One of the officers then pushed her back. The cops called for backup and arrested Plaintiff. Plaintiff was held in a cell for a period anywhere between 33 minutes and 80 minutes before being released. Thereafter, she received a summons for disorderly conduct. Plaintiff and Defendants disagree about much of the facts of this incident. Plaintiff claims she was an arms-length away from the officers as she recorded them. The cops claim she was right in their faces as she recorded. On one account Plaintiff was violently shoved, and on the other, the cop accidentally made contact with Plaintiff due to her close proximity to the cops while recording. Each party’s witnesses have differing accounts, as well. Plaintiff’s iPhone video would have been a great help in determining the actual nature of the confrontation. Unfortunately, the phone went missing mere days after Plaintiff’s arrest.  Plaintiff claims that she viewed the video after her arrest to confirm that it had not been compromised. She also viewed the video at work in front of a coworker. Then, two days after her arrest, Plaintiff attended a gala. She brought a small purse with her and unfortunately, her phone would not fit inside and thus, she had to hold it all night. As a result, Plaintiff lost her phone and never downloaded the video. Defendants then moved for Spoliation Sanctions. Spoliation is the “destruction or significant alteration of evidence” or the “failure to preserve property” for another party to use as evidence in pending or reasonably foreseeable litigation. Defendants sought dismissal of the lawsuit, or alternatively, an adverse inference instruction. Thus, Defendants must establish: 1) that Plaintiff had an obligation to preserve the video at the time it was destroyed; 2) that the video was destroyed with a “culpable state of mind;” and 3) that the destroyed video was “relevant” to Defendant’s claim, such that a reasonable trier of fact could find that it supports the defense. Defendants proved the first two elements based on the nature of the video and Plaintiff’s negligence in losing the phone. Plaintiff was negligent because she chose to carry a small purse in which she could not fit her phone, which contained a video with important evidence to this case. However, because this was mere negligence and not gross negligence, the court cannot infer that the video would have been favorable to Defendants. Thus, the court denied Defendant’s motion for spoliation sanctions without prejudice if evidence is introduced at trial that the iPhone video is likely favorable to Defendants. This entire case was centered around Plaintiff’s iPhone video. Thus, she was quite aware that the video was very important evidence and she had a duty to preserve it. Plaintiff was negligent in carrying around her phone and putting it down during the gala, where there were many people around and it would be easy for her to lose the phone. Plaintiff should have kept the phone secure. Additionally, Plaintiff should have downloaded the video immediately upon her release. However, luckily for her, because she was merely negligent, Defendants could not establish that the video was favorable to them. Therefore, Plaintiff was not susceptible to spoliation sanctions. However, if Defendants somehow found such evidence and introduced it at trial, Plaintiff would be out of luck. Preeya Sonia is a third-year law student at Seton Hall University School of Law and resides in Newark, NJ.

What electronic data should a company preserve?

Author: Carla Zavala Case Citation: Marten Transp., Ltd. v. Plattform Adver., Inc., No. 14-cv-02464-JWL-TJ, 2016 U.S. Dist. LEXIS 15098 (D. Kan. Feb. 8, 2016) Employee/Personnel/Employer implicated: Employer eLesson Learned: The duty to preserve electronic data only attaches to the information that the party has reason to believe is relevant to the litigation, at the time the party finds out it is relevant. Tweet This: No spoliation sanctions for deleting e-data that seems irrelevant to litigation. Most businesses know that once litigation begins, they have a duty to preserve all electronically stored information that might be relevant to the lawsuit. What many people do not know, however, is when this duty attaches and what they are required to preserve. Should a business just freeze all data maintenance at the first mention of the word “lawsuit?” Does the duty to preserve data include an entry-level employee’s emails about lunch plans? The court in Marten Transport, Ltd. V. Plattform Advertising, Inc., interpreted then-newly amended Rule 37(e) to examine the timing and scope of a company’s duty to preserve. The plaintiffs, a trucking company, brought a suit against the defendants for misusing their trademarks. The plaintiff hired the defendant to post job openings on the defendant’s website. According to the plaintiff, the defendant had continued to post on the plaintiff’s behalf even after their business relationship ended, which they believe infringed on their trademarks. The plaintiff sent a letter to the defendant in Fall 2013, threatening to sue for trademark infringement. The plaintiff finally filed a complaint against the defendant in September 2014. In June 2015, the defendant sent a letter to the plaintiff alleging that, in its investigation, it had discovered that one of the plaintiff’s employees had admitted in an email to a third party to having posted on the defendant’s website after the business relationship had terminated. By the time the defendant discovered this email, however, the plaintiff no longer had access to the employee’s internet history. The defendant sought spoliation sanctions against the plaintiff for failing to preserve the employee’s internet history. The court denied the sanctions. It found that Rule 37(e) requires a party to take reasonable steps to preserve information. The rule requires that the court take into consideration “the routine, good-faith operation of an electronic information system” when determining whether the party acted reasonably to preserve information. Here, the information at issue was lost when the employee’s computer was replaced during routine maintenance. Crucially, the computer was replaced in April 2014, before the defendant raised the defense that the plaintiff’s own employees were posting the job listings. By the time the issue was raised in the litigation, the computer had been donated and the information was lost permanently. Under the court’s interpretation of Rule 37(e), just because the duty to preserve has attached, does not mean that it has attached to all electronically stored information. The duty to preserve only applies to the data that the party has reason to know will be relevant in the litigation. The company does not need to preserve the entry-level employee’s email about lunch plans, unless it has reason to believe the lunch will be implicated in the litigation. Carla Zavala is a student at Seton Hall University School of Law (Class of 2017). She is a member of the Seton Hall Law Review, where she serves as Senior Articles Editor. In Fall 2016, the Seton Hall Law Review published her student comment, Manslaughter by Text: Is Encouraging Suicide Manslaughter? She is also a student attorney at the Seton Hall Law School Center for Social Justice’s Equal Justice Clinic. After graduation, Carla will serve as a clerk to a judge of the Superior Court of New Jersey, Appellate Division.

How To Tell The Difference Between Harmful Spoliation and Harmless Spring Cleaning

Author: David Solomon   Case Citation: Living Color Enters. v. New Era Aquaculture, 2016 U.S. Dist. LEXIS 39113 (S.D. Fla. Mar. 22, 2016).   Employee/Personnel/Employer implicated:   eLesson Learned:  While accidents do happen, in order to avoid court ordered sanctions, it’s important for a defendant to play by the rules.   Tweet This: What to keep in mind before deleting e-files. Don't let being tidy at home be your downfall in court.     Any good lawyer will tell you, it doesn’t take much to end up in trouble with the court. When it comes down to it, most activities that you may think are routine can suddenly become grounds for some severe sanctions from a not so understanding judge.   In the case of Living Color Enters v. New Era Aquaculture, this became the central issue of focus for our poor defendant. When it came down to discovery, there began to be a sinking suspicion by the plaintiff in regards to the potential that the defendant was holding out on a few old text messages.   Specifically, the defendant was accused of a few things: deleting old text messages between the parties, refusing to turn over the archived messages, and having an alternative email address.   The court ultimately developed a test made up of three questions. The first was ‘whether the evidence should have been preserved’; followed by was the evidence lost because someone didn’t take reasonable steps to preserve it; and finally, can the evidence be restored or replaced through additional discovery.   The court goes on to asses that if the answer to all three questions is ‘no’, then there is no issue. In the Living Color case though, they were all answered affirmatively. This meant the court needed to go on to decide whether not there was bad faith or prejudice to the other side from the lack of the evidence.   Luckily for the defendant, the court took into consideration that the plaintiff managed to receive the majority of the necessary communications from a third party. Also, a lot of the information that was being requested by the plaintiff were found to be unnecessary to their case.   It’s safe to say that all of this could have been avoided if the defendant just kept an archive of his messages, especially when he found out that he was going to be sued. I mean, seriously, it doesn’t matter if you have a weekly ritual of smashing your iPhone with a sledgehammer because your scared of the government tracking you. If you find out that you’re getting a complaint in the mail, you either start saving your messages, or live with your fear of the feds following you. Either way, playing by the rules will save you both money and headaches in the end.   David received his B.A. in English and Communication from Rutgers University. He will receive his J.D. from Seton Hall University School of Law in 2017. Presently, David interns for a non-profit organization involved with prisoner reentry. After graduation, David will clerk for a judge in the Superior Court of New Jersey. 

What Happens to an Injured Plaintiff who Skips a Deposition and Fails to Hand Over Pertinent Medical History?

Author: EJ Scarillo   Case Citation: Carr v. State Farm Mut. Auto. Ins., 312 F.R.D. 459 (N.D. Tex. 2015).   Employee/Personnel/Employer implicated: Plaintiff who was Involved in a Personal Injury Case     eLesson Learned: Do not dodge discovery requests!   Tweet This: Plaintiff stymies State Farm’s attempts to schedule deposition and collect medical information. Is this a sanctionable offense? To be determined.   Imagine the all too common discovery issue: one party requests certain discovery and receives nothing in return. The party requesting the discovery follows up with another request, but again hears only static on their end. Frustrated, the party then moves to compel the discovery. The court yawningly hears the evidence and issues a banal opinion, which concludes an order to compel the deficient discovery.   In Carr v. State Farm Mut. Auto Ins., the nameless party can be substituted in for a personal injury plaintiff who seemed a little too keen to avoid taking a deposition and tried to avoid providing blatantly discoverable evidence relating his personal injury claim. Specifically, the plaintiff was seeking to recover from his insurance company, State Farm, on an underinsured motorist claim. State Farm, being naturally inclined to avoid paying such a claim, requested the plaintiff’s medical history subsequent to the accident. State Farm also requested information pertaining to whether the plaintiff had any other insurance coverage. To no avail, State Farm diligently attempted to collect these documents. Alas, the court was asked to step in.   The plaintiff here valiantly tried to raise a novel privacy defense to avoid handing over his medical records. Further, he tried to claim the information relating to his other insurance was not relevant under Federal Rule of Civil Procedure 26. However, for the deposition, the plaintiff did not bother to mount a defense.   Simply put, the plaintiff would have better conserved his energy (and checkbook) by providing the discovery early on, as well as rescheduling the deposition. In life, as well as before a judge, “I do not know” is usually not the most prudent answer to a direct question. Yet, this is the exact response the plaintiff offered when asked why he did not reschedule the deposition he failed to attend.   Further, while patients have an obvious interest in maintaining the confidentiality of their medical records, State Farm’s request for medical records was narrowly tailored. Considering that they only asked for the plaintiff’s medical history subsequent to the date of the accident, it was glaringly apparent that this medical history would be discoverable. The same goes for answering whether the plaintiff maintained insurance other than his State Farm Policy.   All in all, the only potential silver lining for the plaintiff is that he may avoid being sanctioned. The court (in a rather charitable move) suspended its judgment on whether the plaintiff would have to pay State Farm’s expenses related to making the motion to compel, including attorney’s fees. Bluntly, there was no legally cognizable reason for the plaintiff not providing this discovery, other than neglect. A word of advice to the wary, save your and the court’s time by providing discovery to narrowly tailored discovery requests.

Using the court to drag your opponents production of ESI out of the stone age probably won’t work.

Author: Peter H. Robinson   Case Citation: Hyles v. N.Y. City, No. 10CIV3119ATAJP, (S.D.N.Y. Aug. 1, 2016)   Employee/Personnel/Employer implicated:   Employer, Employee   eLesson Learned: The court will not force a party to use predictive coding (TAR) as long as their preferred method of production is reasonable.   Tweet This: Parties can’t force one another to produce documents using predictive coding.     In a discovery dispute about the method of production used by one party, the court is very reluctant to impose a particular method of production, such as TAR, on an unwilling party. When an attorney requests that their adversary produce electronically stored information (ESI), the requesting attorney has very little control over how that information is produced.

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Which party controls the initial approach to searching for ESI? The producing party, as long its method produces sufficient results that are reasonable and proportional.

Author: RHL   Citation: In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., No. 16-md-02691-RS (SK), 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016).   Employee/Personnel/Employer implicated: Plaintiff’s Counsel   eLesson Learned: Plaintiff’s counsel should have shown the judge how defendant’s use of keyword search for electronically stored information (ESI) would produce insufficient results instead of pointing out the advantages and savings from using technology assisted review (TAR) or predictive coding.   Tweet This: To compel your opponent to use your preferred method of search for ESI, you must convince the judge that the opponent’s chosen method will not produce sufficient results, and that your method will.     In an ongoing lawsuit against Pfizer, In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., No. 16-md-02691-RS (SK), 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016), the courtdenied plaintiffs’motion to compel defendant to use technology assisted review (TAR) or predictive coding to search for electronically stored information (ESI) instead of Pfizer’s proposed keyword search method.   The court pointed out that “the responding party is the one best situated to decide how to search for and produce ESI responsive to discovery requests.” Id., at *51. The court further noted that plaintiffs did not cite any cases that required the responding party to use the “best” method of search, and as long as the responding party is able to produce results that are reasonable and proportionate, the court should not get involved.    The court heavily based its holding on a recent decision in Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390, (S.D.N.Y. Aug. 1, 2016)), where the court agreed that TAR was a better approach to search for ESI, but saw no basis in law to require defendant to use it. Like the court in Hyles, the court here refused to strong-arm the defendant into using TAR or predictive coding to search for ESI when plaintiffs did not demonstrate that the use of keyword search would produce insufficient result. The court noted that even if keyword search result would be less complete than TAR-based, the standard is not perfection, but whether the results produced will be reasonable and proportional. The court held that as long as the discovery responses produced are sufficient, the court should not force the responding party to use a particular approach to search for ESI.    RHL is a law student at Seton Hall University School of Law

When is a Motion to Compel in Patent Litigation Too Broad? Proportionality and Pharmaceuticals: A Battle of Titans

Author: Thomas J Patania   Case Citation: Gilead Scis., Inc. v. Merck & Co., No. 5:13-cv-04057-BLF, 2016 U.S. Dist. LEXIS 5616 (N.D. Cal. January 13, 2016).   Employee/Personnel/Employer Implicated: Outside Counsel   eLesson Learned: When a party seeking discovery already has information regarding a patent in question, but refuses to take the opposing party at its word, a Court will find a Motion to Compel information related to other patents disproportionate. Specifically, when dealing with nucleosides and other molecular compounds, counsel should limit discovery requests to the specific compound at issue.   Tweet This: Taking the other party at its word: Disproportionality in patent litigation between pharmaceutical Titans   Taking the other side at its word can be extremely difficult, but in the case of pharmaceuticals, a party may have to do just that. Proportionality is key in patent litigation cases.  In Gilead Scis., Inc. v. Merck & Co., the Defendant (“Merck” or “Defendant”) sought discovery of several molecular compounds synthesized by the Plaintiff (“Gilead” or “Plaintiff”), even though Defendant already had information related to said molecular compounds.   Defendant, through a Motion to Compel, advocated its position by discussing the similarity between the molecular weight of the compound sought in discovery and the compound at issue in the suit. Defendant asserted that Plaintiff was infringing two of Defendant’s patents to a certain molecular compound named PSI-6130. Through a separate suit, Defendant had obtained a photo of several different tubes of compounds in Plaintiff’s possession. The molecular weight listed on one of the tubes was 259.2 grams, the same weight as PSI-6130. Thereafter, Defendant obtained information from Plaintiff that the tube in question held either PIS-0194 or PSI-1834, and not PSI-6130.   Even though Defendant was aware that the tube in question did not hold PSI-6130, Defendant filed a Motion to Compel, seeking discovery of the tubes, refusing to take Plaintiff’s word. Defendant claimed that because the molecular weight of PSI-6130 and the tube in question were the same, Defendant was entitled to discovery of the tube. Looking to the December 2015 updated language of Fed. R. Civ. P. 26(b)(1), the Court found that the discovery sought was disproportionate to the case. While the Court noted that proportionality was a requirement prior to the December 2015 Amendment, the Court emphasized that now, “a party seeking discovery of relevant, non-privileged information must show, before anything else, that the discovery sought is proportional to the needs of the case.”  Gilead Scis., Inc. v. Merck & Co., No. 5:13-cv-04057-BLF, 2016 U.S. Dist. LEXIS 5616 (N.D. Cal. January 13, 2016) (quoting Fed. R. Civ. P. 26(b)(1)). Because Defendant had failed to introduce any evidence that the discovery provided by Plaintiff was false, the Court noted that it “must take the producing party . . .  at its word.” Gilead Scis., Inc. v. Merck & Co., No. 5:13-cv-04057-BLF, 2016 U.S. Dist. LEXIS 5616 (N.D. Cal. January 13, 2016). In denying Defendant’s Motion to Compel, the Court noted that asking Plaintiff “to produce discovery on all sorts of compounds . . . [is] like requiring GM to produce discovery on Buicks and Chevys in a patent case about Cadillacs simply because all three happen to be cars.” Id.   In the future, Defense counsel may be wise to limit discovery requests to the specific compound at issue. While discovery isn’t specifically limited to the precise subject matter of the suit, here PSI-6130, Fed. R. Civ. P. 26(b)(1) is clear that discovery must be proportional to the matter at hand. Remember, when a requesting party refuses to believe that information is what the producing party claims, the opposing party is stuck taking the producing party at its word unless the requesting party can prove proportionality.    Thomas Patania, a Seton Hall University School of Law Student (Class of 2018), focuses his studies in the areas of general civil and healthcare litigation. Thomas spent his first three semesters in Birmingham, Alabama, at Cumberland School of Law, where he was a member of the Cumberland Law Review and National Trial Team. Outside of studying the law, Thomas enjoys snowplowing and hunting.

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    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg


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