Case of the Week

This case involves Captive's request for a Rule 502(d) order to protect privileged documents in response to an IRS summons, proposing to produce 1.1 million documents without a full privilege review. The Court denied the request, emphasizing that a 502(d) order cannot be used to broadly shift privilege review responsibility to the receiving party and underscoring that administrative summonses are not governed by the same standards as civil litigation.

The New Jersey Appellate Court reversed a trial court’s denial of a defense motion for discovery related to facial recognition technology (FRT), which was used to identify the defendant in a criminal case. The Court found that the defense was entitled to detailed FRT data to assess its reliability, marking an important development in due process rights regarding AI-based evidence in criminal investigations.

In a patent infringement dispute, the Court analyzed whether to exclude key third party source code evidence that Beacon failed to obtain before the close of fact discovery due to strategic delays. Ultimately, the Court found that although Beacon’s late disclosure violated discovery rules, exclusion was not warranted given the importance of the evidence and lack of trial disruption, but emphasized the critical importance of initiating third party discovery promptly to avoid similar risks.

In this bankruptcy case, the Court examined whether attorney-client privilege extended to communications between the Archdiocese of New Orleans and a PR agency, finding that the communications were not privileged as they primarily addressed public relations and not legal advice. This decision underscores the need to carefully assess the applicability of privilege to third party agencies in litigation and to understand privilege boundaries across jurisdictions.

In this Fair Labor Standards Act case, the Court addressed a motion for sanctions due to a law firm's delayed and incomplete production of WhatsApp audio files, finding that the firm's failure to produce a privilege log led to a waiver of privilege for withheld communications. The Court ordered production of certain messages on an attorney's-eyes-only basis and precluded the firm from relying on undisclosed WhatsApp communications to support their good faith defense.

This case highlights the importance of securing and preserving mobile devices and associated data when employees are placed on administrative leave, particularly if these devices contain business-related information. Here, the Court emphasized the organization's need to promptly recover devices and prevent data tampering, underscoring that any delay can risk data loss and compromise compliance with preservation obligations in litigation.

In this motion to compel, the Court examined a pro se plaintiff’s request for native document production and a specific delivery method in a loan discrimination case. The Court denied the motion, ruling that the defendant’s production of searchable PDFs on a flash drive satisfied Rule 34, despite the plaintiff’s request for native files and the potential relevance of metadata.

In this trademark infringement case, ZAGG moved to compel discovery and extend the discovery deadline after discovering that the defendant self-collected relevant ESI without attorney supervision and failed to disclose a key logistics vendor. The Court granted ZAGG’s motion, emphasizing the importance of attorney oversight in ESI collection and finding good cause to extend discovery to allow for subpoenaing the newly disclosed vendor.

This case review emphasizes the Ninth Circuit's affirmation of a District Court's dismissal of a lawsuit due to intentional spoliation of text messages by the plaintiff and key witnesses. The Court highlighted how defendants used careful analysis to identify message deletion patterns, demonstrating the importance of early data review and proactive preservation efforts, especially for mobile device data.

In this breach of contract and spoliation case, the Court ruled against IBM’s request for a Rule 502(d) order to shield intentional disclosures from privilege waiver, stating that such protection is generally limited to inadvertent disclosures. Additionally, the Court granted Lubrizol’s motion to compel discovery, holding that IBM’s claim about when its duty to preserve arose effectively waived privilege over related internal communications, as the timing of that duty was central to determining if IBM had failed to preserve relevant evidence.

This case highlights the consequences of failing to provide specific, timely discovery responses under court rules requiring detail and specificity, resulting in waiver of all objections except privilege, which narrowly escaped waiver here. It serves as a strong reminder of the critical need for prompt discovery planning, especially with multiple plaintiffs, and the importance of detailed, specific objections to avoid severe penalties.

This case discusses a motion to compel Uber to disclose details about its litigation hold process and its preservation of ESI sources in a multi-district litigation involving allegations of passenger safety lapses. The Court required Uber to provide specific information on custodial and non-custodial ESI sources but denied the request to suspend its company-wide data destruction policies, underscoring the importance of tracking preservation details and tailoring ESI-related requests for proportionality in complex cases.

This review covers the District Court's dismissal of a medical malpractice case due to fabricated video evidence, deemed pivotal to the plaintiffs’ claims, after inconsistencies were found between the video and the actual examination room. The Court exercised its inherent authority, underscoring that fabricated evidence undermines judicial integrity and warrants dismissal with prejudice, particularly when no lesser sanction can adequately address the abuse.

In this case, the Court addressed a motion for spoliation and sanctions against Outback for failing to preserve sufficient video footage of a slip-and-fall incident, leading to questions about the scope of video preservation obligations in retail settings. The Court found that Outback's selective preservation and lack of guidance constituted intent to deprive relevant evidence, resulting in a permissive adverse inference instruction for the jury, emphasizing the necessity for clear preservation policies and procedures in similar cases.

In this case, the Court addressed technical challenges in handling hyperlinked files in Google Workspace and Vault, ruling that while current technology limits Uber’s ability to produce contemporaneous versions of hyperlinked documents automatically, Uber must provide metadata linking emails to these documents and produce contemporaneous versions for a limited number of specified files. This decision emphasizes the need for parties to understand evolving technology in ediscovery, effectively collaborate on metadata requirements, and be prepared to address technological constraints when preserving and producing digital evidence.

In this trademark infringement case, the Court granted the plaintiff’s motion to compel and overruled the defendant’s objections, citing that the defendant’s boilerplate objections were unsupported and noting counsel’s responsibility to guide clients through ediscovery practices. The decision emphasizes the importance of providing specific, well-founded objections in discovery responses and highlights the need for counsel to understand and assist clients with modern digital data practices.

In this case, the Court addressed discovery disputes in a copyright infringement lawsuit, ordering OpenAI to disclose social media usernames of any current employees discussing relevant litigation topics and denying plaintiffs’ speculative request for information on investors holding more than five percent ownership. The Court highlights the importance of providing a clear factual basis for discovery requests and emphasizes the efficient handling of discovery motions through concise letter briefs.

In this decision, Magistrate Judge Hixson grants StubHub’s motion to amend its ESI protocol after determining that it is technologically impossible to produce hyperlinked documents as attachments in the manner originally stipulated, rejecting plaintiffs' request for sanctions and advising parties to thoroughly understand technical capabilities before agreeing to ESI requirements. The Court highlights the challenges of preserving document relationships in web-based platforms, emphasizing the need for careful negotiation in ESI agreements and allowing for protocol modifications with good cause.

This decision covers the Court’s rulings on disputed provisions within an ESI protocol, touching on topics such as search methodologies, email threading, hyperlinked files, redactions, and production format, with the Court leaning towards practicality and cooperation while setting standards consistent with current technology and judicial trends. The Court underscores the importance of upfront discovery planning, iterative cooperation on search terms, and adapting to technological limitations in producing hyperlinked documents, while also reinforcing that the form of production should reflect reasonable access without imposing undue burden.

The District Court overturned a Magistrate Judge's ruling, finding that the City of Atlanta's failure to preserve text messages, including cropped images from a key meeting, prejudiced the plaintiff's retaliation claim. As a sanction, the Court denied the City's summary judgment motion, awarded costs to the plaintiff, and emphasized the importance of early identification and preservation of ESI to avoid costly sanctions.

The Court found that Apple failed to preserve critical Siri data despite plaintiffs’ multiple requests, severely hindering plaintiffs' ability to prove their claims regarding unauthorized Siri recordings. As a result, the Court imposed strict sanctions limiting Apple’s defense options, with further sanctions potentially determined at trial if the jury finds Apple’s deletion was intentional.

The Court addressed Two Canoes’ motion for sanctions, finding Addian’s preservation efforts around key WeChat messages insufficient and deferring decisions on prejudice and intent to trial, where the jury may evaluate the credibility of Addian’s CEO. This decision underscores the importance of early data preservation, especially for ephemeral messaging applications like WeChat, and of clear custodian interviews to avoid complex credibility issues and costly sanctions at trial.

This discussion examines the FTC's efforts to compel Amazon to disclose legal hold notices and ephemeral messaging instructions in its antitrust case, focusing on issues of potential spoliation and preservation practices for applications like Signal and Wickr. The Court's ruling permits a 30(b)(6) deposition to gather detailed information on Amazon’s data preservation, with implications for how privileged legal hold information may be treated in ediscovery when spoliation is alleged.

In this milestone 150th episode, the discussion with Kelly Twigger and David Horrigan delves into critical ediscovery trends and themes, covering evolving challenges around mobile device data, hyperlink production, sanctions under various sections of Rule 37, and strategic approaches to proportionality and specific objections. This episode provides a valuable overview of key case takeaways, emphasizing the need for early preservation efforts, meticulous documentation, and staying updated on technological advances in data collection and discovery.

This ruling emphasizes the severe consequences of using generative AI like ChatGPT for legal research, particularly when it results in fabricated citations submitted to the court. The Court’s strong response and the order to show cause for potential sanctions underscore the ethical and professional risks lawyers face if they fail to validate the accuracy of their sources, illustrating the dangers of relying on AI tools for citation verification.