Archive for July 2017

Court Compels Production of Documents Withheld as Nonresponsive, Orders Requesting Party to Bear Costs of Re-Review

Nachurs Alpine Sols. Corp. v. Banks, No. 15-CV-4015-LTS, 2017 WL 2918979 (N.D. Iowa July 7, 2017)

In this case, Defendants identified a number of potentially responsive documents by conducting a search with court-approved terms. Upon review of those documents, many were withheld from production as nonresponsive.  When Plaintiff sought to compel production of additional documents it suspected were relevant, the court granted the request, but shifted the burden of reviewing the withheld documents to Plaintiff, including cost.

In this case, Defendants used search terms approved in the court’s ESI order to identify potentially responsive documents and then reviewed those documents for privilege, duplication and relevance. Many thousands of documents were withheld from production as not responsive.  When Plaintiff “took issue,� Defendants eventually produced a log of all documents withheld as nonresponsive and also agreed to produce a number of those documents with conditions, including that they be designated Attorneys Eyes Only and that production “would not serve as an admission that the documents were responsive.�  However, Defendants refused to produce all nonresponsive documents.

Based on the log provided, Plaintiff identified four categories of documents it believed were relevant and sought to compel Defendants to produce them, “with defendants to bear the costs of sifting through the withheld documents.” Alternatively, Plaintiff requested that Defendants be ordered to produce all withheld documents and to pay the attorneys fees for Plaintiff’s costs to review them.  In support of its motion, Plaintiff provided a number of examples that it believed would be relevant based on the information contained in the log.  As to each, Defendants demonstrated that the document was either irrelevant or had already been produced.  Defendants also argued that Plaintiff’s motion amounted to a request for a second review and that the request was disproportional to the needs of the case.  In reply, Plaintiff argued, among other things, that the “only logical reasonâ€� for Defendants’ refusal to provide Plaintiff with the nonresponisve documents to review was that there was something they did not want Plaintiff to find.

Taking up the motion, the court acknowledged the need to assess the proportionality of the request and that Plaintiff needed to make a threshold showing that the information sought was within the scope of discovery before the burden shifted to Defendants to resist the motion. Turning to the facts before it, the court reasoned that there was “at least a colorable prima facie showing� that the documents fell within the scope of discovery because they contained one of the court-approved search terms, but acknowledged that “Plaintiff has not made a strong showing, other than this, that the withheld documents are relevant.�  While the court accepted that Defense counsel made a “good faith� determination of nonresponsiveness, the court went on to reason that its “confidence in defendants’ response [was] colored� by Defendants’ prior failure to comply with discovery obligations (which the court did not explicitly discuss beyond reference to a prior order).  Ultimately, the court found that it would be disproportional to require Defendants to re-review the documents and also disagreed with Plaintiff’s assumption that Defendants had something to hide.  Nonetheless, the court found that “the appropriate resolution� was to require Defendants to produce all of the at-issue documents under the conditions of the prior production, with Plaintiff to bear the costs for the review.  The court further instructed that if Plaintiff identified documents that were wrongfully withheld, it could bring a motion for sanctions to recover attorneys’ fees.

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

“No Harm, No Foul�: Court Denies Motion for Spoliation Sanctions Pursuant to Rule 37(e)

Snider v. Danfoss, LLC, 15 CV 4748, 2017 WL 2973464 (N.D. Ill. July 12, 2017)

In this case, the court addressed Plaintiff’s request for sanctions for Defendant’s failure to preserve emails and, concluding the information did “not appear to be relevantâ€� and that Plaintiff was not prejudiced, denied Plaintiff’s motion for sanctions:

Federal Rule of Civil Procedure 37(e) incorporates the long-standing legal principle embodied in the phrase used on basketball courts everyday across the country: “No harm; no foul.� Under the particular facts of this case, Defendant’s admitted and erroneous destruction of electronically stored information (ESI), which does not appear to be relevant, has not prejudiced Plaintiff. Accordingly, sanctions are not warranted under Rule 37(e).

This was an employment case alleging retaliation against the plaintiff for reporting sexual harassment.  About two months after reporting sexual harassment resulting in the temporary suspension of the accused, Plaintiff was transferred to a position which she considered a demotion in retaliation for her complaint.  Defendant claimed her transfer was performance related.  A week after the transfer, an attorney working on Plaintiff’s behalf sent a preservation request to Defendant which “foreshadowed legal action.�  Two weeks later, Plaintiff left her job with Defendant.  90 days after that, pursuant to Defendant’s policy, all of Plaintiff’s emails were deleted.  Notably, the woman to whom Plaintiff reported her harassment and who “essentially� acted as Plaintiff’s supervisor (her “acting supervisor�) also left her position with Defendant about 9 months later and her emails were also deleted pursuant to Defendant’s policy.  Two months after that, Plaintiff filed suit.

When deposed, Plaintiff’s former acting supervisor “suffered from a case of ‘testimonial amnesia’ and was unable to recall a variety of facts, even benign irrelevant facts.â€� When Plaintiff’s counsel therefore requested copies of Plaintiff’s and the acting supervisor’s emails, the deletions were revealed.  Ultimately, Defendant searched for and produced additional emails from one of Defendant’s HR representatives, including emails to and from Plaintiff and the acting supervisor.  Additional emails from Plaintiff’s actual supervisor (who was responsible for Plaintiff’s transfer)—including emails to and from Plaintiff and to and from Plaintiff’s acting supervisor—were also eventually produced for in camera inspection by the court and ultimately ordered to be provided to the plaintiff.

Turning to the motion for sanctions, the court identified Rule 37(e) as the “sole� basis for sanctioning a party for failure to preserve ESI. The court’s analysis focused on the question of prejudice and acknowledged that “establishing prejudice is tricky business� where no one knows precisely what was lost.  In the present case, the court reasoned that there were “four possible characterizations� of the lost emails: Plaintiff’s emails could have refuted or supported the proffered reasons for her transfer (i.e., that she had conflicts with her coworkers) and the acting supervisor’s emails could have refuted or supported the proffered reasons for the transfer.  The court ultimately concluded that the loss of Plaintiff’s email did not result in prejudice where Plaintiff had first-hand knowledge of their content.  As for the loss of Plaintiff’s acting supervisor’s emails, the court reasoned that the loss of emails casting Plaintiff in a negative light did not prejudice Plaintiff and that prejudice resulting from the loss of positive emails was minimized by the other productions.  The court also noted the lack of evidence regarding the “particular nature of the missing ESI� and reasoned that it was “pure speculation� that the missing emails would benefit the plaintiff.

Briefly acknowledging Rule 37(e)(2), the court stated that Plaintiff presented no evidence that Defendant destroyed the emails with the requisite intent to deprive and that “[i]nstead, what little evidence presented on the issue of intent indicates that [Defendant] acted with a pure heart but empty head.�

Ultimately, the court denied Plaintiff’s motions for sanctions pursuant to Rule 37(e) and the court’s inherent authority but did bar Defendant from using any of the emails produced for in camera inspection (and then to Plaintiff) in any summary judgment or at trial.

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

The ABA Journal’s Web 100 – Nominate Your Favorites!

Dear Readers,

It is our pleasure to provide you with regular summaries of important and interesting e-Discovery opinions and other e-Discovery resources. We hope you enjoy them.  If you do, please consider nominating us for the ABA Journal’s Web 100 – a celebration of the “best of the legal industry on the web.â€�  Nominations are due no later than 11:50 p.m. CT on Sunday, July 30, 2017 and can be made by filling out the nomination form, available here.

Thanks for your interest in our blog!

Sincerely,

The K&L Gates Electronic Discovery Law Blog Team

Lack of “Meaningful� Communication with Opposing Counsel, Client Results in “Overly Complex� and Burdensome Agreement; Partial Costs Shifted

Bailey v. Brookdale Univ. Hosp. Med. Ctr., No. C 16-2195(ADS)(AKT), 2017 WL 2616957 (E.D.N.Y. June 16, 2017)

In this single-plaintiff employment litigation, Plaintiff claimed that the cost of production, equaling approximately $2,000-$3,000, was unduly burdensome in light of his personal financial situation, despite the existence of an ESI agreement between the parties, “so-ordered” by the court. Ultimately, the court concluded that although the data was not inaccessible, cost-shifting was appropriate because it appeared that the agreement proposed by the defendants was of a type “typically utilized in a more complex litigation involving multiple parties and corporate entitiesâ€� and, more notably, because it appeared that Plaintiff’s counsel had not engaged in a “meaningful meet-and-confer session with opposing counsel concerning t[he] Agreementâ€� or thoroughly reviewed the Agreement prior to signing it.  In addition to failing to properly confer with opposing counsel, the court concluded that “Plaintiff’s counsel did not engage in meaningful discussions with his client regarding the terms of the proposed agreement and what costs might be incurred . . . .â€�  Thus, absent any indication that Defendants would consider an alternative and less expensive form of production, the court ordered 40% of production costs shifted to Defendants and indicated that “fairness dictate[d]â€� that Plaintiff’s remaining costs “should be borne by Plaintiff’s counsel rather than Plaintiff himself.â€�

The court instructed counsel in this case to meet to reach an agreement on the method by which ESI would be produced. The court “‘so ordered’’ the parties’ ESI agreement� thereafter.  Notwithstanding the agreement, Plaintiff later sought to “undo� certain provisions, arguing that to produce ESI in the agreed-upon manner would be unduly burdensome.  At the court’s request, Plaintiff submitted an affidavit indicating that the estimated cost of production would be approximately $2,000-$3,000 and that such a cost would inflict “severe financial hardship� on Plaintiff who earned approximately $90,000 annually, but who was also the sole breadwinner for his family of five.

Taking up the issue, the court first analyzed whether the requested ESI could be considered inaccessible sufficient to support cost-shifting and concluded it could not. Despite this, the court’s analysis continued and laid out the obligations of the parties and counsel to meet and confer and to cooperate regarding the production of ESI – procedures which the court concluded “were not adequately followed in this case.â€�  As indicated above, the court instead concluded that Defendants had presented an agreement typically used in “more complex litigationâ€� and that Plaintiff’s counsel had failed to appropriately review and negotiate the provisions of the agreement or to “engage in meaningful discussions with his clientâ€� before signing it.  Thus, counsel, “placed his client in the position of having to abide by an Agreement, which, in the current context, appear[ed] overly complex in light of the straightforward subject matter and claims involvedâ€� in the case.

Ultimately, noting the lack of any indication that Defendants were amenable to considering an alternative and potentially less expensive format of production, the court ordered that to the extent they insisted on production “made to the letter of the requirements/formatting they set forth in the Agreement,� partial cost-shifting was appropriate. Accordingly, the court directed that 40% of the costs be borne by Defendants and indicated that fairness dictated that Plaintiff’s counsel should pay the remaining 60% assessed to Plaintiff.

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