Case of the Week

The Court sanctioned Arch Insurance for discovery failures, including a delay in ESI production, failure to preserve key documents, and disregard for discovery obligations, due to a lack of diligence by in-house counsel and flawed oversight of ESI searches. Emphasizing the importance of proactive discovery management and court intervention, the ruling underlines that failure to ensure compliance and transparency can result in significant prejudice, potentially influencing jury perception and settlement dynamics.

In a complex FTC investigation, Amazon faced sanctions for waiver of privilege due to intentional redactions and delayed clawback of produced documents, which the Court deemed not inadvertent under Rule 502(b). This case underscores the necessity of stringent privilege management processes across concurrent investigations and clarifies that Rule 502(d) protections do not extend to pre-litigation investigations, highlighting the need for rapid and coordinated document review.

This discussion highlights the importance of producing metadata to provide an accurate timeline of events in discovery, especially when witness memory fades or details are critical. The Court granted plaintiffs' motion to compel metadata that was not initially disclosed, underscoring the need for early requests for metadata to support factual storytelling and reminding parties to comply with initial disclosure obligations under Rule 37.

This discussion covers the challenges and legal standards around producing hyperlinked documents in discovery, distinguishing hyperlinked files from traditional email attachments and underscoring the complexities involved with reasonable production efforts. The Court ultimately denied the plaintiff’s motion to compel, reinforcing the importance of precise planning in ESI protocols and practical limitations, especially when technical capability limits what is reasonably feasible for production.

This case explores key discovery issues, focusing on sanctions for failure to preserve and produce mobile and email data, compliance with ESI protocols, and managing cross-border data subject to GDPR restrictions. It underscores the importance of robust preservation policies, especially for mobile data, the need for counsel to supervise data collection, and sets a noteworthy precedent by allowing access to litigation hold notices when spoliation is established.

In this case, the plaintiffs allege that TikTok's in-app browser intercepts users' keystrokes and data on third party websites, violating privacy and wiretap laws. The focus is on a jointly stipulated Rule 502(d) order, emphasizing the benefits of proactively establishing privilege protection in complex cases to avoid inadvertent waivers and streamline handling of privileged materials in discovery.

This episode discusses a court ruling in an antitrust case where plaintiffs sought to compel the inclusion of in-house counsel as custodians in discovery, which the Court denied, emphasizing proportionality and the excessive burden this would impose. The decision illustrates the importance of balancing thorough investigation with reasonable discovery limits and highlights an evolving approach to custodian-based discovery in light of collaboration tools.

This episode covers a court ruling on a spoliation motion for sanctions, where an employee failed to preserve text messages after switching jobs, allegedly violating non-compete and non-solicitation agreements. The decision highlights the importance of early preservation steps, the potential use of adverse inference sanctions, and practical strategies for leveraging electronic evidence to demonstrate relevance and prejudice when key data is lost.

In this case, the Court addressed sanctions following a plaintiff's counsel’s inadvertent disclosure of protected documents to a reporter, finding a violation of a protective order but determining the disclosure to be unintentional. The ruling highlights the importance of reviewing materials carefully before third party sharing and promptly notifying the court and opposing counsel of any inadvertent disclosures, especially when protective orders are involved.

This discussion addresses a nuanced discovery dispute involving the clawback of documents that Uber inadvertently produced, focusing on the application of attorney-client privilege to emails and attachments in a multidistrict litigation (MDL) setting. The Court’s analysis offers critical insights into how privilege is evaluated, emphasizing the importance of clear protocols for inadvertent disclosures and the value of early, detailed privilege analysis to streamline litigation and manage costs.

The discussion focuses on the application of Federal Rule of Civil Procedure 34(b)(2)(e) concerning the form and manner of production of ESI during discovery, highlighting a case where plaintiffs sought native file formats and clearer organization of 180,000 documents produced in TIFF with metadata. Key takeaways emphasize the importance of specifying production requirements in advance, negotiating ESI protocols, and making a factual basis to support requests for specific formats or organization to ensure efficient and cost-effective discovery practices.

District Judge Johnston's decision provides key insights into the timing of sanctions motions for spoliation of electronically stored information (ESI), emphasizing the need for a strategic approach based on the specific facts of the case and ongoing discovery. The discussion highlights factors such as case deadlines, the scope of discovery, and the relief sought, urging litigators to collaborate with the court to determine the optimal timing for such motions to ensure judicial efficiency and alignment with case progress.

Legal experts Kelly Twigger, Stephanie Wilkins, and Aaron Patton discuss pivotal ediscovery trends, including the evolving role of hyperlinked files, mobile device discovery, and the growing impact of generative AI on legal processes. They highlight key case law, explore technological advancements, and predict 2025 developments like prompt preservation, AI security, and the increased influence of private equity in ediscovery.

In this discussion, the focus is on the challenges of handling text messages as electronic stored information in litigation, especially when addressing issues like redaction for relevance and ensuring consistency in discovery agreements. Key takeaways emphasize the importance of clear, comprehensive agreements between parties to mitigate discovery disputes, with a particular emphasis on the complexity of dealing with text messages and the need to plan discovery protocols tailored to the case.

This discussion focuses on discovery dispute resolution techniques, emphasizing the importance of leveraging court-specific procedures, such as letter motions or brief conversations, to expedite discovery processes efficiently. Key issues include managing timing and compliance with discovery deadlines, organizing production for better usability, and strategies for handling 30(b)(6) depositions to ensure witnesses are adequately prepared on designated topics.

The court addressed whether Microsoft's verification process for user consent under the Stored Communications Act was sufficient to deny a subpoena for Skype chat records in a fraud case. The ruling emphasized that while Microsoft’s privacy safeguards are important, a sworn declaration under penalty of perjury can establish lawful consent, providing key guidance for ediscovery professionals handling third-party data requests.

This case highlights the critical importance of adhering to Rule 26(a) for initial disclosures, emphasizing that failure to provide necessary information can result in severe sanctions, including the exclusion of evidence. It also underscores the growing impact of the 2015 amendments to Rule 26, which broaden the scope of disclosures and introduce proportionality standards to streamline litigation, particularly in the context of eDiscovery.

The discussion focuses on a court’s ruling regarding the treatment of hyperlinked documents as attachments under an ESI protocol, highlighting the technological limitations and obligations for producing contemporaneous versions and metadata, particularly with platforms like Google Drive and Google Vault. It emphasizes the importance of clear protocols, iterative discovery processes, and how advancements in technology may impact future production requirements in eDiscovery.

The Court denied a motion to compel after finding that plaintiff’s counsel failed to follow federal and local rules requiring meaningful meet and confer efforts in ESI discovery, instead attempting to impose a rigid, one-sided protocol. The ruling emphasizes the importance of cooperation, proportionality, and a tailored understanding of discovery obligations—warning that overreliance on inflexible templates can lead to sanctions and damage credibility with the court.