Case of the Week
Search and review the complete collection of episodes of the key cases covered weekly with analysis by Kelly Twigger
Episode 1: EEOC v. M1 5100 Corp.
The discussion highlights the court’s expectations under Rule 26(g) regarding attorney supervision in ediscovery, emphasizing that counsel must actively engage in guiding and validating the client's search and collection of relevant information rather than relying solely on the client’s self-collection. It reviews practical steps attorneys can take to fulfill these obligations, including screen-sharing to define search parameters and documenting efforts, and it explains the Court's refusal to allow ESI inspection without extraordinary circumstances while warning of potential sanctions for non-compliance.
Episode 2: EEOC v. MVM, Inc.
The case discussion explores the responsibility to preserve video and access control data in an employment dispute, emphasizing the need for proactive data retention to avoid spoliation claims under Rule 37(e). Key takeaways include establishing clear protocols for preserving third-party data within a party’s practical control, particularly in cases with potential legal action, to ensure compliance with evidentiary preservation requirements.
Episode 3: Livingston v. City of Chicago
This discussion focuses on the use of technology assisted review (TAR) in ediscovery, examining a dispute over whether TAR should be applied to a subset of documents or the entire data collection. The Court ultimately supported the City's approach of using TAR on the refined set of 190,000 documents, emphasizing that the responding party is best positioned to decide on the review methodology, in line with the Sedona Principles, while rejecting the plaintiffs' demand for greater control over the review process.
Episode 4: Lawson v. Spirit Aerosystems, Inc.
The Court examined the proportionality of discovery costs, ultimately requiring Lawson to cover TAR expenses after finding the process had become disproportionate to the case’s needs. This decision underscores the importance of documenting ediscovery procedures and cost details thoroughly, as courts scrutinize review methodologies, reasonable costs, and staffing appropriateness in fee-shifting cases.
Episode 5: Gardner v. Wells Fargo Bank, N.A.
The case explores the court's approach to social media discovery, particularly when a plaintiff falsely denies having accounts that later prove relevant to case timelines. While the Court declined to impose severe sanctions due to minimal case impact and ongoing discovery, it highlighted the necessity of thorough client investigation, especially regarding social media, and stressed the importance of truthful disclosure and adherence to Rule 26(g) obligations.
Episode 6: Bragg v. SW Health Sys., Inc.
In this case, the plaintiff sought sanctions, including dismissal, under Rule 37(e) after claiming emails documenting alleged fraud were missing, though forensic evidence showed no deletions. The Court rejected the sanctions request, emphasizing that Rule 37(e) requires clear evidence of deletion and intent to deprive, and even considered Rule 11 sanctions against the plaintiff for bringing the motion without sufficient basis.
Episode 7: Lawson v. Spirit Aerosystems, Inc.
This case examines the Court’s award of $94,000 in attorney’s fees to Spirit Aerosystems for their application for TAR-related costs, highlighting the importance of detailed, contemporaneous time entries and reasonable task delegation. The Court reiterated the lodestar method for fee calculation and emphasized that vague billing practices or lack of specificity could result in reduced recoveries, underscoring best practices in ediscovery cost recovery applications.
Episode 8: Oswald v. Costco Wholesale Corp.
This case highlights the court’s enforcement of proportionality in discovery, as Costco successfully challenged overly broad requests for nationwide vehicle incidents, which were deemed disproportionate to the incident specifics. The Supreme Court upheld the protective order limiting discovery, emphasizing the importance of precisely tailored requests and clear objection protocols to ensure discovery relevance and manageability.
Episode 9: Easterwood v. Carnival Corp.
This case examines the requirements for spoliation sanctions under Rule 37(e) in the context of Carnival's preservation protocols for video evidence, determining that no duty to preserve existed for video footage of an unrelated incident involving a different passenger. The Court’s analysis reinforces the importance of specific protocols for preserving evidence, reasonable anticipation of litigation, and the need for prejudice and intent to support spoliation sanctions.
Episode 10: Hampton v. Kink
In this case, both parties sought to compel Facebook posts as evidence: defendants wanted access to plaintiff's public posts about her identity and experiences, while plaintiff sought posts from a private correctional staff group for comments about her or transgender prisoners. The Court addressed issues of relevance, privacy, and the scope of social media discovery, underscoring the importance of specific requests and effective preservation, collection, and authentication of social media evidence.
Episode 11: Barrow v. Living Word Dayton
The appellate court upheld sanctions against the plaintiff and his counsel for failing to comply with a discovery order, highlighting the necessity for following agreed-upon discovery processes and properly managing ediscovery challenges, including privilege review and search terms. The decision emphasizes the importance of understanding a client’s data before committing to discovery agreements and seeking court assistance when limitations in resources hinder compliance.
Episode 12: DR Distribs., LLC v. 21 Century Smoking, Inc. — Part 1
This discussion highlights a landmark decision addressing ediscovery failures, including mismanagement of electronic data, lack of supervision, and client dishonesty, all of which led to severe discovery sanctions. Key takeaways emphasize the importance of early involvement of ediscovery expertise, transparent communication with clients, and strict adherence to defensible ediscovery practices to prevent sanctions.
Episode 13: DR Distribs., LLC v. 21 Century Smoking, Inc. — Part 2
In this discussion, Kelly Twigger and Doug Austin review key sanctions issued due to ediscovery failures, highlighting the Court's analysis of rules under 26(g) and 37. Their insights cover the importance of early and managed ediscovery practices, clear client communication, comprehensive custodian interviews, and regular CLE to avoid costly sanctions and uphold professional standards.
Episode 14: Reed v. Royal Caribbean Cruises, Ltd.
This discussion analyzes the Court's decisions on two motions for sanctions related to Royal Caribbean's alleged failure to preserve video evidence critical to a passenger injury case. Key takeaways include the importance of thoroughly planning discovery, verifying the existence of evidence, and taking proactive steps beyond issuing preservation letters to meet the burden of proof in sanctions motions under Rule 37(e).
Episode 15: In re Apple iPhone Antitrust Litig.
This discussion reviews a court decision where Apple successfully compelled Valve to produce data on Steam’s sales and pricing as part of an antitrust case, emphasizing that Apple argued this information was crucial to its market definition in the case. Key takeaways include the importance of thorough specificity in arguments against production for proportionality or burden, using coding tools for efficient redaction management, and ensuring a comprehensive protective order is in place to safeguard sensitive information in third party subpoenas.
Episode 17: In re Valsartan Losartan & Irbesartan Prods. Liab. Litig.
This discussion covers a multi-district litigation involving Valsartan, a blood pressure medication alleged to contain carcinogenic chemicals, where Teva Pharmaceuticals' use of an undisclosed TAR process in document review was contested. The Court highlighted the importance of transparency in technology assisted review protocols, ultimately enforcing the original ESI protocol's requirement for mutual agreement on review processes and urging early planning and collaboration in discovery for MDL cases.
Episode 18: Thomas v. Cricket Wireless
This session covers a motion to compel legal hold notices in a class action lawsuit against Cricket Wireless, where plaintiffs seek to investigate potential spoliation after discovering that critical documents from the class period were deleted post-dismissal of a related case. The Court emphasized the plaintiffs' thorough use of discovery tools to establish "preliminary evidence of spoliation," ultimately ordering production of the hold notices due to Cricket’s refusal to provide preservation details in depositions.
Episode 19: Vera Bradley Designs, Inc. v. Li
This session discusses a motion to compel filed near the end of discovery, highlighting issues with boilerplate objections, lack of case law support, and insufficiently specific privilege logs. The Court emphasizes the need for detailed, substantiated objections and early discovery planning, urging parties to thoroughly understand and document their clients’ data early in the process to avoid rushed, unsupported responses and ensure effective case management.
Episode 20: Nichols v. Noom Inc.
This session discusses a motion for reconsideration regarding hyperlinking in Google Apps and the challenges in collecting hyperlinked documents as attachments in ediscovery, particularly when using Google Vault for collection. The Court ultimately upheld its previous decision allowing Google Vault, emphasizing cost and proportionality while noting the need for clear protocol planning as modern collaboration platforms change how data and attachments are handled in litigation.
Episode 21: U.S. v. Hunt
In this session, pretrial motions in a case involving threats made on social media were reviewed, focusing on the admissibility of social media posts, text messages, and video content as evidence of intent. Key points included authentication challenges, the application of FRE 902(11) for metadata, and the importance of careful ESI collection for trial evidence, emphasizing the need for strategic planning in authenticating digital content in criminal and civil cases.
Episode 22: Oracle USA, Inc. v. Rimini St., Inc.
This discussion covers the latest development in a lengthy intellectual property dispute, focusing on a motion for sanctions due to spoliation related to Rimini Street's use of an automated file transfer process. Key points include the Court’s analysis of preservation obligations for transitory files, Rimini’s cooperation in offering to assist with third party discovery, and the importance of understanding technology and timing when addressing ESI in complex litigation.
Episode 23: Epic Games, Inc. v. Apple Inc.
This brief decision addresses privilege and in camera review, with Magistrate Judge Hixson evaluating Apple’s attempt to clawback three documents on the basis of privilege. The Court ruled the documents were not privileged, highlighting critical considerations for accurately determining privilege, avoiding assumptions based solely on copying legal counsel, and underscoring potential issues in privilege log protocols.
Episode 24: U.S. Tobacco Coop., Inc. v. Certain Underwriters at Lloyd's
This case centers on a second motion to compel in a dispute between a cooperative and insurers over withheld discovery and improperly claimed privilege on documents, with a history of the insurers repeatedly failing to meet discovery obligations under the federal rules. Key issues discussed include privilege requirements, particularly in the insurance context, and the Court’s intention to consider sanctions for bad faith noncompliance with discovery rules.
Episode 25: Nichols v. Noom Inc.
This case addresses the issue of whether hyperlinked documents in emails should be treated as attachments, with the Court ultimately upholding a ruling that they are not. The Court emphasizes the importance of planning for technological nuances in ESI protocols, suggesting parties proactively outline such issues to ensure relevant information is collected and accessible in discovery.
Episode 26: Bursztein v. Best Buy Stores, LP
This case examines a slip-and-fall lawsuit where the defendant's failure to preserve key surveillance footage and maintenance records led to sanctions. The Court found Best Buy’s discovery practices obstructive and dilatory, ultimately allowing the plaintiff to present spoliation evidence at trial and awarding monetary sanctions for attorney fees.