Archive for May 2017

“Discovery can be burdensome even as it is inexpensive.�

Gordon v. T.G.R. Logistics, Inc., No. 16-cv-00238-NDF, 2017 WL 1947537 (D. Wy. May 10, 2017)

In this personal injury case, Defendant requested production of Plaintiff’s entire “Facebook account history� for her two accounts (and later limited the relevant timeframe of the request to information from three years prior to the accident through the present). In response, Plaintiff produced information that referenced the at-issue auto accident or her injuries and also provided information identified by a set of keywords set forth by Defendant.  She objected to further production based on a lack of relevance, undue burden, and invasion of privacy.  The court granted Defendant’s subsequent motion to compel, but imposed significant limits on the scope of production.

Addressing Defendant’s motion, the court focused first on the scope of discovery and the principle of proportionality, noting that social media presented some “unique challenges to courts� including the modern trend toward posting information “historically … considered private� to a “very loosely defined group of ‘friends,’ or even the entire public internet� in a “permanent and easily retrievable� format. The court reasoned that “[t]here can be little doubt that within those postings there will be information which is relevant to some issue in the litigation� but also acknowledged that “much of the information will be irrelevant.�

The court went on to reason that “[j]ust because the information can be retrieved quickly and inexpensively does not resolve the issue. Discovery can be burdensome even as it is inexpensive� and “[c]ourts have long denied discovery of information which was easy to obtain, but which was not discoverable.�

In the present case, the court noted, the defendant was correct that “there would be very little time or expense involved in the initial production� but reasoned that “[t]he problem is that such vast information has the potential to generate additional discovery or impact trial testimony.�

It’s not difficult to imagine a plaintiff being required to explain every statement contained within a lengthy Facebook history in which he or she expressed some degree of angst or emotional distress or discussing life events which could be conceived to cause emotion upset, but which is extremely personal and embarrassing. There is also substantial risk that the fear of humiliation and embarrassment will dissuade injured plaintiffs from seeking recovery for legitimate damages or abandon legitimate claims.

“That being said,� the court went on to acknowledge that:

Defendant has a legitimate interest in discovery which is important to the claims and damages it is being asked to pay. Information in social media which reveals that the plaintiff is lying or exaggerating his or her injuries should not be protected from disclosure. Courts must balance these realities regarding discovery of social media and that is what most of the courts which have addressed this issue have done.

Ultimately, following analysis of several cases addressing social media discovery, the court concluded that granting Defendant’s motion would be “casting the net too wide� (even where Defendant had narrowed the time frame) and would “provide minimal relevant information while exposing substantial irrelevant information. As such the discovery would exceed the proper limits of proportionality.�

The court specifically denied Defendant’s request for social media information from prior to the accident. However, the court was not convinced that Plaintiff had produced all relevant information subsequent to that date and thus ordered production of “all relevant history which addresses Plaintiff’s significant emotional turmoil, any mental disability or ability, or relate significant events which could reasonably be expected to result in emotional distress� as well as all references to the accident, its aftermath and her injuries and any postings related to her level of post-accident physical activity.  In footnote the court explained that “use of the term ‘significant’ is to avoid disclosure of transient and trivial emotional distress� and that close calls could be submitted to the court for in camera review.

A copy of the court’s full opinion is available here.

“Applying TAR to the universe of electronic material before any keyword search reduces [it] is the preferred method.�

FCA USA LLC v. Cummins, LLC, No. 16-12883 (E.D. Mich. Mar. 28, 2017)

In this case, the court was asked to rule on the parties’ dispute regarding “whether the universe of electronic material subject to TAR review should first be culled by the use of search terms.� The court, although expressly reluctant to get involved, concluded that it should not:

Be that as it may, having reviewed the letters and proposed orders together with some technical in-house assistance including a read of The Sedona Conference TAR Case Law Primer, 18 Sedona Con. J. __ (forthcoming 2017), the Court is satisfied that FCA has the better postion [sic]. Applying TAR to the universe of electronic material before any keyword search reduces the universe of electronic material is the preferred method. The TAR results can then be culled by the use of search terms or other methods.

A full copy of the court’s short order is available here.

Court Concludes Data Is within Defendant’s Possession, Custody or Control, Declines to Shift Costs

Williams v. Angie’s List, No. 1:16-00878-WTL-MJD, 2017 WL 1318419 (S.D. Ind. April 10, 2017)

Plaintiffs in this case—48 current and former employees of Defendant—alleged they were entitled to “substantial compensation� for hours worked without pay. Plaintiffs further alleged that Defendant’s computerized time records did not entirely reflect their hours worked because Defendant had instructed them to underreport their overtime hours and because many of those hours were worked from home.  Plaintiffs therefore sought production of “background data� automatically recorded while they were working on Defendant’s sales platform, Salesforce, in an effort to “close the gaps� in other records.  Defendant produced one year’s worth of the requested data, but refused to produce the additional two years sought by Plaintiffs arguing that the information was maintained by Salesforce, “a third-party provider of services,� and that Defendant had “no greater rights� to the data “than any other person.� Defendant also noted the $15,000 invoice it received from Salesforce related to the initial production, which it claimed supported its position that it did not have possession, custody or control of the information.  Ultimately, the court granted Plaintiffs’ motion to compel and denied Defendant’s motion to shift costs.

The court first addressed Defendant’s assertion that it did not have possession, custody, or control over the data and quickly rejected Defendant’s argument. Specifically, the court reasoned that the evidence established a “longstanding contractual relationship� between Defendant and Salesforce and that the background data in question was recorded “‘for’ Angie’s List as part of the ordinary course of their business relationship� and could be accessed upon request.  Indeed, most compelling was the fact that Defendant had actually acquired and produced a year’s worth of data already.  Thus, the court concluded that Defendant had “the legal right� to obtain the discovery sought—the relevant test in the Seventh Circuit.  In so concluding, the court also addressed Defendant’s argument that the cost to acquire the data from Salesforce bolstered its position that it had no legal right to the data and reasoned that “[t]he fact that Angie’s List must pay for the extracting of this data is of no moment; quite frequently, retrieving and compiling electronic discovery costs substantial sums. Indeed, all discovery costs money.�

The court then turned to Defendant’s request to shift the costs of production because of the alleged burden of production and marginal relevance of the data at-issue.  Summarizing broadly, the court acknowledged its authority to “proportion the costs of e-discovery in cases of undue cost or burden,� subject to consideration of eight factors bearing striking resemblance to the factors addressing proportionality under FRCP 26, as acknowledged by the court (“As both parties observe, district courts in the Seventh Circuit have transmuted the test for whether discovery is proportional under Rule 26(b)(1) to guide the court’s discretion in whether to shift discovery costs.�). Those factors are:

1) the likelihood of discovering critical information; 2) the availability of such information from other sources; 3) the amount in controversy as compared to the total cost of production; 4) the parties’ resources as compared to the total cost of production; 5) the relative ability of each party to control costs and its incentive to do so; 6) the importance of the issues at stake in the litigation; 7) the importance of the requested discovery in resolving the issues at stake in the litigation; and 8) the relative benefits to the parties of obtaining the information.

Considering each of the factors, the court ultimately concluded that “[t]he relevant factors, especially those addressed to the importance of the discovery at issue, all weigh against cost shifting.� In so concluding, the court reasoned, in part, that Plaintiffs were “not requesting the[ ] records on a blank slate as part of a fishing expedition,� but rather had already discovered evidence to undermine the accuracy of Defendant’s official time tracker, including the previously-produced Salesforce records that “strongly suggest[ed] employee activity outside of the time reflected� on Defendant’s usual timekeeping system.

A full copy of the court’s order is available here.