Case of the Week

This episode covers a motion for sanctions against Google in a multi-district antitrust case, focusing on Google’s alleged failure to preserve relevant Google Chat messages in violation of legal preservation duties. The Court found Google intentionally deleted relevant ESI by allowing employees to self-regulate chat history, raising serious preservation and collection issues, and imposed sanctions with further remedies pending the close of discovery to determine the extent of prejudice caused by the lost chat evidence.

This episode covers a discovery dispute in a qui tam action against a prominent organization, focusing on a motion to compel the relator to provide more specific interrogatory responses, avoid general objections, and verify their responses. The Court grants a motion for a privilege log but denies additional requests, with a strong emphasis on the need for specific factual detail and strategy when litigating cases with potentially predisposed courts or politically sensitive issues.

This session covers a motion to compel regarding disputed search terms in a high-stakes case, where plaintiffs argued that search terms were overly broad, yielding excessive document volumes that were burdensome to review. The Court addressed the timeliness and specificity of objections, emphasizing the importance of detailed factual records, precise ESI protocol language, and an understanding of proportionality in large-scale document reviews.

This episode explores a breach of contract case in which McCormick objects to a Magistrate Judge's discovery order requiring them to manually review search term hits for relevance before production, as stipulated by the ESI protocol. The Court upheld the requirement for document-by-document review based on the protocol’s language, underscoring the critical importance of clearly defining obligations in ESI protocols to manage review costs and meet Rule 26 obligations.

This session covered the Court's analysis on a spoliation motion regarding missing text messages in a wage and hour dispute, examining the failure to preserve data and the standards for sanctions under Rule 37(e). Key takeaways include the importance of proactive preservation of text messages as ESI and the requirement to demonstrate both prejudice and intent when seeking spoliation sanctions.

In an admiralty case involving Skanska USA, the Court imposed sanctions due to Skanska's failure to preserve key text messages from mobile devices, concluding that their inadequate steps to prevent data loss constituted bad faith. The decision underscores the critical importance of immediate, proactive data preservation for employee mobile devices upon anticipating litigation, as courts may view insufficient preservation efforts as intentional spoliation, even without explicit evidence of intent to deprive.

This session covered a motion to compel in a breach of contract case where Lubrizol sought additional context for Slack messages, arguing that individual Slack messages shouldn’t be treated as discrete documents. The Court agreed, ruling that Slack messages are comparable to text messages and require context, mandating IBM to provide surrounding messages to ensure the completeness of conversations for discovery purposes.

This episode discussed the Court’s decision to enforce an ESI protocol requiring StubHub to produce linked documents within emails as attachments in a class action lawsuit. StubHub's failure to meet this requirement led the Court to order compliance or require a 30(b)(6) witness to explain StubHub’s collection process, underscoring the importance of verifying technical capabilities before agreeing to ESI protocols.

This session covers a court decision on the use of relevancy redactions in ediscovery, where the Court found that while relevancy redactions are typically disfavored, they may be allowed in limited cases if justified in advance, consistent with the protective order, and do not impact the receiving party’s understanding. Magistrate Judge Parker’s ruling provides a framework for addressing relevancy redactions in discovery protocols, urging careful planning to avoid motion practice and ensure efficient case handling.

This discussion covers a decision on Amazon's use of technology assisted review (TAR) following an extensive search-term-based document review in a high-value class action lawsuit. The Court upheld Amazon's use of TAR despite plaintiff objections, emphasizing the importance of transparency in TAR processes, the need for precision in search term selection, and the value of cooperatively addressing ESI protocol terms to ensure efficient, proportional discovery.

This decision delves into the use of elusion testing to validate search terms and uncover additional relevant documents in a patent infringement case, where Special Master Philip Favro ordered Deal Genius to conduct supplementary searches following a low initial production yield. Special Master Favro emphasizes that quantitative analysis and iterative search adjustments, like elusion testing, are crucial for achieving thorough discovery, and also highlights the importance of proportionality in ediscovery to avoid unnecessary litigation over minimal additional document review.

This decision explores metadata integrity and production requirements in a dispute where defendants failed to preserve metadata by moving documents prior to collection, resulting in a motion to compel to remedy the deficiencies. The Court emphasizes the importance of metadata in ediscovery, ordering defendants to produce missing information and highlighting the necessity of adhering to detailed ESI protocols and production specifications for effective data organization and review.

The Court examined whether Elastos had "possession, custody, or control" over an employee's personal Gmail account to warrant a search for potentially relevant business information, ultimately concluding that the plaintiffs provided insufficient evidence linking the account to responsive documents and thus did not meet their burden of proof. Additionally, the Court noted that Mr. Li’s cooperation in other discovery matters and his location in China further complicated the issue, making it unreasonable to assume Elastos could enforce control over his personal email in the same way a U.S. company might.

This decision from Magistrate Judge DeMarchi provides guidance on several key aspects of drafting and applying ESI protocols, specifically focusing on preservation obligations, search term methodologies, and privilege log requirements, while emphasizing the importance of cooperative discovery and transparency between parties. Notably, the Court encourages an iterative, data-driven approach for search term validation and rejects vague “technical feasibility” clauses, reinforcing the need for both clear procedural standards and proactive communication around ESI challenges.

This decision covers a sanctions motion for spoliation, with the Court addressing Lenovo's claims that former employee McLaughlin intentionally wiped a company laptop, erasing critical metadata needed to verify documents related to his unpaid commissions and expenses. The Court granted sanctions, including exclusion of evidence, an adverse inference instruction, and the requirement for McLaughlin to pay Lenovo’s forensic costs, underscoring the importance of preserving ESI, metadata, and the potential consequences of violating preservation obligations.

In this case, the Court sanctioned Peraton, Inc. for failing to preserve text messages on an employee's personal device, establishing that such data can be considered under the employer's control when personal devices are routinely used for business purposes. The decision underscores the importance for companies to include text messages and all potential data sources in legal hold notices, especially when employees use personal devices for work, as failure to do so may constitute spoliation and lead to significant legal consequences.

In this decision, the Court examines the relevance and proportionality of custodians in ediscovery, specifically whether additional decision-makers, including high-level executives, should be added to the custodian list to meet plaintiffs’ needs for information on Meta's intent and decision-making in alleged privacy violations. The Court ultimately ordered Meta to add six senior custodians after finding they are likely to have unique, relevant information tied to decision-making, while underscoring the importance of substantiating custodian relevance early in the discovery process.

This decision addresses the Court's emphasis on transparency in ediscovery, particularly the requirement that parties disclose their search methodologies and not rely solely on custodian self-collection to identify responsive materials. Magistrate Judge Stafford mandates that Ford share its search protocol, rejecting the argument that search methodology is privileged, and underscores that counsel must actively supervise and verify client collections to meet discovery obligations under Rule 26(g).

In this decision, the New York Supreme Court denied the plaintiff’s motion to compel text and LinkedIn messages from defendants based on a previously agreed ESI protocol that specifically excluded text messages. The case underscores the critical importance of crafting a well-considered ESI protocol that anticipates relevant sources of data and allows for future expansion if new evidence arises.

This California appellate decision highlights the importance for businesses, especially retailers, to have a clear protocol for preserving video evidence, as failure to retain relevant footage may lead to adverse jury instructions and unfavorable trial outcomes. In this case, the Court found that a general preservation request was sufficient to trigger Rite Aid's duty to maintain video evidence, which could have been critical in assessing liability in a slip-and-fall injury claim.

This Colorado Supreme Court decision addresses a reverse keyword warrant used to access anonymized Google search histories related to a specific address, raising significant Fourth Amendment and privacy considerations. The Court ultimately upheld the warrant under the good faith exception, highlighting an evolving judicial approach to balancing privacy interests with investigative needs, which could have implications for both criminal and civil ediscovery cases involving search history and other private data.

This short decision underscores two important points in ediscovery: the need for plaintiffs to produce full social media profiles due to the challenge of tailoring search terms on such platforms, and the rejection of plaintiffs' proposed manual search of devices without comprehensive certification of review. These issues emphasize the necessity of using dedicated tools for social media collection and the importance of effectively negotiating search terms for ESI from electronic devices.

In this decision, the Court examined issues around email threading, privilege, and plaintiffs’ handling of third party subpoenas, particularly focusing on the plaintiffs’ request for previously withheld documents. The ruling highlights the importance of early, thorough review of produced documents to prevent oversight and avoid costly, unnecessary motion practice regarding privilege and document production agreements.

In this third-anniversary episode, Kelly Twigger and Doug Austin review key trends in ediscovery case law over the past three years, highlighting the growth in case volume, emerging issues with modern data sources like Slack, Teams, video, and social media, and the evolving approach to sanctions and proportionality in discovery. They discuss the importance of staying informed on these developments, particularly for handling new types of data and preservation challenges, as well as leveraging resources like eDiscovery Assistant for staying current.

This case discusses two competing motions to compel related to privilege and document disclosure, highlighting the significance of categorical privilege logs and the criteria for in camera review. Magistrate Judge Wicks ultimately denied both motions, finding that each party’s privilege log met local rule requirements, and underscored the importance of evidentiary support when requesting in camera review to avoid unwarranted "fishing expeditions."