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eDiscovery 2019 Year in Review

Anthony Petruzzi, Partner Chair, eDiscovery 216.696.5478 [email protected]

2019 was a consequential year for eDiscovery developments. Courts throughout the country, both at the state and federal level, analyzed and decided important legal issues that will continue to impact discovery and production for years to come. These cases involve a wide array of topics, from preserving text messages, to carefully crafting objections, to the always-important issue of discovery on discovery. The Tucker Ellis eDiscovery Group has compiled a list of significant and representative eDiscovery cases from 2019 to provide insight and guidance as we study these new developments.

CELL PHONES & SOCIAL MEDIA

Paisley Park Enter., Inc. v. Boxill, 330 F.R.D. 226 (D. Minn. 2019). In this infringement action by the Estate of Prince, the owners of Defendant Rogue Music Alliance (“RMA”) failed to preserve text messages when they wiped and destroyed their mobile devices after RMA was sued. In analyzing plaintiff’s sanctions motion, the court assessed whether RMA “took reasonable steps” to preserve its owners’ text messages. The “principles of the ‘standard reasonableness framework’ require a party to ‘suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents.’” Because the owners easily could have taken advantage of “relatively simple options to ensure that their text messages were backed up to cloud storage,” and because it “takes, at most, only a few minutes to disengage the auto-delete function on a cell phone,” the court held that RMA acted unreasonably. The court ultimately granted plaintiff’s motion for sanctions and ordered RMA to pay monetary sanctions. The court also deferred ruling on a potential adverse inference until trial.

EDISCOVERY: 2019 YEAR IN REVIEW

eDiscovery: 2019 Year in Review | 1

In Re: Apple Inc., No. 5:18-md-02827, 2019 WL 3973752 (N.D. Cal. Aug. 22, 2019). Plaintiffs sought to modify a discovery order that allowed forensic imaging of devices belonging to 10 named plaintiffs so that Apple’s experts could conduct performance testing on the devices. Plaintiffs argued that personal devices are afforded special privacy protections under the law and that “Apple therefore had to demonstrate a compelling need or interest to justify the forensic imaging.” They further contended that the special discovery master erred in not conducting a balancing test between Apple’s compelling interest and the intrusion into each plaintiff’s privacy. Despite recognizing the “serious invasion of Plaintiffs’ significant and protectable privacy interest in their devices,” the court denied plaintiffs’ motion because “Apple’s interest in performance testing the forensic images outweighs Plaintiff’s privacy interest.” Plaintiffs put the performance of their devices at issue and did not present “a feasible alternative [to] satisfy Apple’s interest in the performance testing.”

Herzig v. Arkansas Foundation for Medical Care, Inc., No. 2:18-CV-02101, 2019 WL 2870106 (W.D. Ark. July 3, 2019). After initially producing screenshots of text messages, defendants began using the messaging application Signal, which encrypts messages and allows for automatic deletion of messages after a very short period of time. The court held that defendants’ use of Signal to encrypt and automatically delete messages after a preservation obligation had arisen amounted to an “intentional, bad-faith spoliation of evidence.” While severe sanctions were appropriate, they were not necessary because the court was already disposing of the case on summary judgment.

2 | eDiscovery: 2019 Year in Review

Vasquez-Santos v. Mathew, 92 N.Y.S.3d 243 (N.Y. App. Div. Jan. 24, 2019). Plaintiff brought suit alleging injuries from a car accident that prematurely ended his semi-professional basketball career. Defendant found several photos of plaintiff playing basketball that were posted to Facebook after the accident. Plaintiff claimed these photos were all taken before the car accident. To rebut this claim, defendant moved for production of the photos’ metadata to establish the date and time each photo was taken. The trial court denied defendant’s motion, but the appellate court reversed, reiterating New York’s longstanding principle that “[p]rivate social media information can be discoverable to the extent it contradicts or conflicts with a plaintiff’s alleged restrictions, disabilities, and losses.” This “social media information” includes metadata.

PRACTICE TIPS Companies may be held responsible for preserving officers’ and employees’ personal text

messages. If it is likely that an officer or employee has relevant text messages on a personal device, the company should ensure appropriate measures are taken to preserve that data.

Be vigilant. A judge is more likely to find intentional spoliation when simple preventive measures are not taken. If messages are lost because an automatic delete function is not disabled, an action that would take seconds, a court may find that relevant information was intentionally deleted.

While most defense attorneys know to check plaintiffs’ social media pages, many do not consider whether to seek related metadata. If information contained in social media metadata may be relevant to your claims or defenses, consider requesting proper collection of social media data.

Cordova v. Walmart Puerto Rico, Inc. et al., No. 16-2195, 2019 WL 3226893 (D.P.R. July 16, 2019). In this employment action, defendant requested information relating to plaintiff’s Facebook account. Plaintiff repeatedly claimed that she could no longer access her account because she “got blocked out for unsuccessful attempts to log into the account.” Plaintiff even demonstrated that she was locked out of her account by attempting to log in during a meeting between the parties. Several months later, defendant noticed that plaintiff had recently posted two public updates on Facebook. Plaintiff’s account then became inaccessible to defendant. Defendant moved to dismiss, arguing that plaintiff was “duplicitous about the Facebook discovery.” Plaintiff responded that she regained access to her account after discovery had closed and did not realize she was required to supplement her discovery responses. The court sided with defendant, reasoning that plaintiff’s claim of ignorance was not a valid reason for noncompliance with her disclosure obligations under Fed. R. Civ. P. 26(e); however, the court declined to dismiss, and instead imposed an adverse inference sanction regarding the content on plaintiff’s Facebook page.

DISCOVERY ON DISCOVERY

Edwards v. Scripps Media, Inc., 331 F.R.D. 116 (E.D. Mich. 2019). In this sexual harassment case, plaintiff alleged that the corporate defendant did not adequately investigate her report of sexual harassment against one of the defendant-company’s employees and did not effectively discipline the employee. Plaintiff requested documents and emails from several custodians and took 15 depositions. After completing this discovery, plaintiff noticed a 30(b)(6) deposition for a witness “to testify about defendant’s discovery responses, including any searches it conducted,” as well as details concerning defendant’s legal hold process and the “specific steps that were taken in this case to implement the hold.” Notably, plaintiff did not allege any specific misconduct relating to defendant’s discovery; rather, plaintiff only alleged that “defendant did not adequately preserve and

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Freed v. Home Depot U.S.A., Inc., No. 18CV359, 2019 WL 582346 (S.D. Cal. Feb. 13, 2019). In a slip-and-fall personal injury case against Home Depot, plaintiff alleged Home Depot was withholding additional video evidence of her fall. Home Depot repeatedly asserted that it turned over the only video it had of the fall and agreed to produce a 30(b)(6) deponent to testify about the footage it already provided. Nonetheless, plaintiff subpoenaed the paralegal who verified Home Depot’s discovery responses for the purpose of asking whether additional video evidence existed. Home Depot moved to quash the subpoena, arguing that the deposition “is classic discovery about discovery” and not permitted absent evidence of misconduct. The court agreed with Home Depot, holding that plaintiff was not entitled to a deposition of the paralegal. The court explained that plaintiff “failed to provide any evidence or support for the idea that [the paralegal’s] deposition [was] relevant or proportional to the claims” in the case. Moreover, in her opposition to Home Depot’s motion to quash, plaintiff failed to respond to defendant’s arguments regarding “discovery about discovery.”


PRACTICE TIP If confronted with a motion for discovery on discovery, remember that relevancy and

proportionality are critical. Requesting parties are not automatically entitled to discovery on discovery, but must first demonstrate need. Courts are hesitant to permit discovery on discovery when it would require significant time and expense that is not proportional to the needs of the case.

explained that “discovery about discovery” is permissible only when “there is reason to distrust the responding party’s diligence.” Plaintiff failed to present sufficient evidence that defendant violated its duty to preserve evidence in anticipation of litigation, and the court determined that “the discovery-about-discovery and preservation topics [plaintiff sought were] irrelevant and not important to resolve the case, and the burden of requiring defendant to prepare a witness to testify about these matters outweighs the likely benefit.”

FIFTH AMENDMENT

Commonwealth v. Jones, 481 Mass. 540 (2019). In a sex trafficking and prostitution prosecution, the Commonwealth sought to compel defendant to provide his mobile device password to decrypt data on the device. The trial court denied the motion because “the Commonwealth failed to demonstrate with reasonable particularity that [defendant] possesse[d] the [password] for the phone” and that compelling disclosure of defendant’s knowledge of the password did not fall under the foregone conclusion exception to the Fifth Amendment. The Supreme Court of Massachusetts reversed, holding that compelling production of a mobile device password does not amount to self-incrimination under the Fifth Amendment when the Commonwealth already knew the defendant had knowledge of his own password.

Commonwealth v. Davis, 220 A.3d 534 (Pa. 2019). In a child pornography prosecution, the Commonwealth sought to compel defendant to provide the encryption password for his computer. The trial court granted the motion to compel. On appeal, the Supreme Court of Pennsylvania held that compelling a defendant to reveal a password to permit access to a lawfully seized encrypted computer was testimonial in nature and violated the Fifth Amendment protection against self-incrimination. Unless the United States Supreme Court one day holds otherwise, Pennsylvania would not apply the foregone conclusion exception to the Fifth Amendment in cases seeking to compel disclosure of an encryption password.

PRACTICE TIP Pay particular attention to decisions in your jurisdiction, as different courts have reached

different conclusions in this emerging area of law.


FORM OF COLLECTION & PRODUCTION

Smith v. TFI Family Servs., Inc., No. 17-02235, 2019 WL 4194046 (D. Kan. Sept. 4, 2019), objections overruled, 2020 WL 42316 (D. Kan. Jan. 3, 2020). Plaintiff sought to hold a non-party in contempt for failing to produce ESI in native format with associated metadata. The court had ordered production in “electronic format” but did not specify whether production should be in PDF or native format with metadata. In its motion to compel, plaintiff argued that the non-party should have produced six distinct categories of metadata; however, plaintiff could not point to anything in the court’s order requiring production of metadata, let alone these specific categories of metadata. Further, plaintiff failed to make a particularized showing of why reproducing over 5,000 pages of documents in native format with associated metadata was relevant to the case. The court emphasized in denying the motion to show cause that the entire issue could have been avoided had plaintiff conferred with the non-party subpoena target prior to the non-party’s production of over 5,000 pages of documents.

Jordan v. Mirra, 1:14-CV-01485, 2019 WL 2127788 (D. Del. Feb 27, 2019). In a lengthy proposed order, the court-appointed special master recommended sustaining defendant’s objection to producing accounting records in native “Peachtree/Sage 50 format.” Plaintiff argued that defendant’s production in TIFF and Microsoft Excel formats inhibited plaintiff’s ability to search records. The court denied plaintiff’s motion to compel because TIFF and Excel are both typical forms of production. Fed. R. Civ. P. 34(b)(2)(E) does not require ESI production in native format, but instead allows for production “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Moreover, the special master relied on the Sedona Conference’s Principle 12, which instructs that ESI should be produced “as it is ordinarily maintained or in a form that is reasonably usable for purposes of efficiently prosecuting or defending the claims and defenses involved in the matter.” Because TIFF and Microsoft Excel formats satisfied this standard, native file production was not required.

Carter v. Franklin Fire District, No. 1, No. A-2726-16T1, 2019 WL 1224623 (N.J. Super. Ct. Mar. 15, 2019). The requestor of fire department emails under New Jersey’s Open Public Records Act argued that the department failed to comply with the Act by producing emails in PDF instead of native format. The court held that the request for “electronic copies of all e-mails” and for records to be produced “in electronic format” was not specific enough to require native file format production. The department reasonably complied with the records request by emailing the requestor PDF printouts of responsive emails.

PRACTICE TIPS Check local court rules and authoritative sources such as Sedona Conference publications for

document production standards. Authorities support the position that native file format is not required in place of a reasonably usable form of production unless the party seeking production can demonstrate a specific need for native format production that is proportional to the needs of the case.

Pay particular attention to what you request or propose that the court orders, as courts will hold parties to the strict terms of what is requested or ordered. “Electronic format” does not mean native format with metadata intact. If you require native format with associated metadata, spell this out clearly in your requests, and be prepared to demonstrate to the court why this information is required to prove the claims and defenses at issue in the case. It is always preferable to negotiate a stipulated ESI protocol with opposing counsel.


Abbott Laboratories, et al. v. Adelphia Supply USA, et al., No. 15 CV 5826, 2019 WL 3281324 (E.D.N.Y. May 2, 2019). Plaintiff filed a motion for sanctions premised on several intentional discovery violations by defendants. Defendants’ initial document production involved printing documents “in hard copy, scanning them all together, and producing them as a single, 1941-page PDF file.” Defendants then removed, by hand, any documents it considered harmful. In addition, the defendants used search terms it knew would not return relevant results (such as searching for “International” and “FreeStyle” instead of identifiers like “INT” and “INTE” for International and “FRL” and “FSL” for FreeStyle). Based on this misconduct and the fact that defendants were previously sanctioned for similar discovery misconduct, the court granted plaintiff’s motion for sanctions and explicitly held that defendants “calculatedly attempted to manipulate the judicial process,” and “committed a fraud upon the court.” Accordingly, the court held that default judgment should be entered against defendants.

FRAUD, SPOLIATION & SANCTIONS

Bellamy v. Wal-Mart Stores, Texas, LLC, No. SA-18-cv-60, 2019 WL 3936992 (W.D. Tex. Aug. 19, 2019). During discovery in a slip-and-fall lawsuit, defendant’s paralegal inadvertently produced privileged documents to plaintiff. Based on those privileged documents, plaintiff moved for sanctions, alleging defendant failed to disclose known witnesses and to preserve video evidence. Before ruling on the motion, the court held defendant was entitled to claw back the privileged documents because (1) they were inadvertently produced, (2) defendant took reasonable steps to prevent disclosure, and (3) defendant promptly acted to rectify the error. Nonetheless, the court allowed plaintiff to rely upon those privileged documents in pursuing sanctions. The court held, “Although Plaintiff may not further use these documents in this case, preventing their use in analyzing the pending motion for sanctions would result in a perverse result, upending the rules of civil procedure and encouraging discovery abuse.” Ultimately, the court sanctioned defendant by prohibiting it from asserting a comparative negligence defense.

DriveTime Car Sales Company, LLC v. Pettigrew, 2019 WL 1746730 (S.D. OH Apr. 18, 2019). In an employment case, plaintiff filed a motion for sanctions based on defendant’s failure to preserve his cell phone and pertinent text messages after receiving a litigation hold letter. Plaintiff asked the court to issue an adverse inference that the content of the text messages was unfavorable to defendant. Despite acknowledging that defendant failed to take reasonable steps to preserve the text messages, the court denied the sanctions motion because plaintiff had not proven that defendant “intend[ed] to deprive” plaintiff of the text messages. The court reasoned that the intent standard of Fed. R. Civ. P. 37(e)(2) “is stringent and does not parallel other discovery standards.” Yet, the court ordered a curative measure under Rule 37(e)(1), allowing plaintiff to “introduce evidence at trial, if it wishes, of the litigation hold letter and [defendant’s] subsequent failure to preserve the text messages.”

NuVasive, Inc. v. Kormanis, No. 1:18-CV-282, 2019 WL 1171486 (M.D.N.C. Mar. 13, 2019), report and recommendation adopted, 2019 WL 1418145 (M.D.N.C. Mar. 29, 2019). In this breach of contract action against a former employee, defendant received a litigation hold letter instructing him not to delete any relevant evidence, including text messages. In response to plaintiff’s requests for production, defendant explained that “due to space limitations on his iPhone, [he] only is able to keep data on his device from the previous 30 days”; however, to comply with the litigation hold letter, he indicated that he was backing up his phone to the cloud to preserve all of his messages. Nonetheless, when defendant finally produced relevant text messages, they went back only three months. Plaintiff later discovered that defendant failed to turn off the automatic 30-day delete function on his iPhone, even after receiving notice of the pending litigation. Plaintiff filed a motion for sanctions based on spoliation of evidence. The magistrate judge recommended that the court “defer until trial the decision of whether other ‘serious measures are necessary to cure prejudice [from the loss of text messages].’” The magistrate judge also recommended submitting the issue of whether defendant acted with the intent to deprive to the jury and instructing the jury that it could “infer from the loss of the [text messages] that [they were] unfavorable” to defendant.


Envy Hawaii LLC v. Volvo Car USA LLC, 2019 WL 1292288 (D. Haw. Mar. 20, 2019). In a breach of contract case filed by a local car dealership against Volvo’s national distributor, plaintiff failed to preserve various pieces of electronically stored information, including “electronic dealer management system records.” Defendant moved for sanctions under Fed. R. Civ. P. 37(e). The court denied defendant’s motion because the electronic information sought by defendant was not actually “lost” within the meaning of Rule 37(e). The court explained, “Information is ‘lost’ for purposes of Rule 37(e) only if it is irretrievable from another source, including other custodians.” The court quoted the 2015 Advisory Committee Notes to Rule 37, noting that “because electronically stored information often exists in multiple locations, loss from one source may often be harmless when substitute information can be found elsewhere.” Here, defendant was not prevented from accessing the “electronic dealer management system records” because a third party maintained those records. Accordingly, spoliation sanctions were not warranted.

PRACTICE TIPS Do not file a motion for spoliation sanctions until you have done due diligence on whether the

information you seek may be obtained from other sources. A court may be reluctant to grant sanctions if a third party maintains the documents that were allegedly deleted or lost.

Take extra care to avoid producing privileged documents. Even if claw back is available, the opposing party still might be able to use privileged information to seek sanctions.

PROPORTIONALITY

Frey v. Minter, No. 4:18-CV-191, 2019 WL 2450920 (M.D. Ga. June 12, 2019). Defendant filed a motion to compel a non-party law firm to produce documents duplicative of a document request directed toward plaintiff. The court held that even though plaintiff was ordered “to produce these same documents,” defendant had “the right to assure himself that [plaintiff’s] production is complete.” Sensitive to imposing unnecessary costs upon the non-party law firm, the court ordered defendant to pay the law firm’s costs and expenses associated with responding to the request. The non-party law firm was ordered to provide defendant with an estimated cost of responding to the subpoena, “and upon payment of those costs, [the law firm] shall produce the documents within twenty-one days.”

Russell v. Kiewit Corp., No. 18-2144-KHV, 2019 WL 2357525 (D. Kan. June 4, 2019). Plaintiff sued his former employer for age discrimination and sought to compel production of his complete company email file (“PST” file) because this would allow “more efficient search and evaluation of the alleged performance deficiencies in context with other communications.” Plaintiff argued that the PST file contents were “reasonably calculated to lead to the discovery of admissible evidence to counter defendant’s ‘poor performer’ defense,” which the court rejected outright as “a fundamental misunderstanding of how Rule 26(b) was amended in 2015.” The court held that the request was overly broad and not proportional. Defendant had already produced documents responsive to plaintiff’s search terms, and plaintiff’s request for the entire PST file necessarily sought production of documents regardless of relevancy. The court also explained that, contrary to plaintiff’s assertion, defendants could not be required to conduct a privilege review unless plaintiff first made a credible showing that the documents at issue were relevant to the claims and defenses at issue.

In re Verizon Wireless, Nos.: TDC-19-1744 | TDC-19-1799 | TDC-19-1806 | TDC-19-1808 | TDC-19-2118 | TDC-19-2119 | TDC-19-2120 | TDC-19-2121 | TDC-19-2122 | TDC-19-2123, 2019 WL 4415538 (D. Md. Sept. 16, 2019). A group of petitioners sought to quash subpoenas for mobile phone records and text message contents of phone numbers owned by Prince George’s County. The court held that the petitioners did not have standing to quash the subpoenas because, as government employees, they did not have a reasonable expectation of privacy in the government-owned phone numbers; however, petitioners were entitled to a protective order because the subpoenas were overly broad and disproportionate to the needs of the case: “[T]he broad swath of information sought here is not justifiable,” as “[r]espondents ask for too much to obtain too little.”


Santana v. MKA2 Enterprises, Inc., No. 18-2094, 2019 WL 130286 (D. Kan. Jan. 8, 2019). In an employment discrimination case, defendant requested that plaintiff produce all mobile devices he owned during his time of employment. The court ruled that defendant’s request was unduly burdensome and invasive and not proportional to the needs of the case. Requiring production of all mobile device ESI without any limitation would result in production of irrelevant documents. The court explained that even text messages between plaintiff and his former coworkers may be irrelevant to the claims and defenses at issue. The court also noted that the advisory committee notes to the 2006 amendments to Rule 34 cautioned about the privacy and confidentiality concerns raised by discovery of ESI.

Par Pharmaceutical, Inc. v. QuVa Pharma, Inc., No. 17-6115, 2019 WL 959700 (D.N.J. Feb. 27, 2019). In a trade secrets dispute, plaintiff sought “full and complete” forensic imaging of all media and devices that were ever used by certain employees or that ever contained documents “that contain or reflect information that originated from” plaintiff. The court noted that “courts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature.” The court then concluded that the requested “full-blown imaging of the media and devices at issue” would result in collection and production of irrelevant ESI, which was not warranted at this stage of discovery.”

Michael Kors, L.L.C. v. Su Yan Ye, No. 1:18-CV-2684, 2019 WL 1517552 (S.D.N.Y. Apr. 8, 2019). In a trademark dispute regarding the Michael Kors “MK” trademark, defendant sought to compel production of certain documents. The court noted that “[s]ince the 2015 amendments to the federal rules, the scope of discovery permitted has narrowed” and found that defendant’s discovery requests were “neither tailored to the needs of this case nor consistent with Rule 34.” Defendant had requested “all” documents related to various topics and provided no date limits. The court took particular issue with defense counsel’s explanation that they were employing their “‘standard requests’ designed to capture all documents that could potentially be relevant to the elements of the claims and damages.” The 2015 amendments were designed to end the practice of using standard, overbroad requests and instead require “tailoring based on the particular issues and circumstances of the case.” Plaintiff’s counsel also failed to comply with Rule 34 by using boilerplate objections and providing only vague descriptions of the documents it would produce.

Washington v. GEO Grp., Inc., No. 17-5806, 2019 WL 2743390 (W.D. Wash. July 1, 2019). In a dispute arising out of the operation of a Washington correctional facility, defendant sought to compel the State to produce information from various state agencies to support its affirmative defenses. The court ordered the production of documents and metadata. After the State produced documents and metadata, defendant sought further document productions, including a request for more complete metadata. The court denied this second motion to compel because “it [was] not entirely clear which request for production the State allegedly ha[d] not complied with,” and defendant “generally failed to demonstrate that further information regarding the State’s work program [was] relevant and proportional to the needs of the case.” Regarding the request for further metadata, the court held that the State had already complied with the prior production order to the extent possible, and that defendant had “not shown that the information [was] relevant and proportional to the needs of the case.”

Lareau v. Nw. Med. Ctr., No. 2:17-CV-81, 2019 WL 1379872 (D. Vt. Mar. 27, 2019). Plaintiff sued her former employer alleging wrongful termination. Plaintiff sought to compel production of ESI hitting on 34 search terms. Defendant searched a single search term, which took five hours to identify and code 472 documents, few of which were relevant. Extrapolating the results from this one search term to the additional 33, defendant estimated that complying with plaintiff’s proposed protocol would take 170 attorney and paralegal hours and result in little, if any, relevant information. Defendant objected to the burden of production in light of the limited yield of the search results and invited further meet and confer efforts, which plaintiff declined. The court denied plaintiff’s motion to compel because plaintiff failed to show good cause as required under Fed. R. Civ. P. 26(b)(2)(B). Typically, courts require parties to “‘test both the cost and the yield’ of sample searches in order to determine whether the discovery request is reasonable.” Here, defendant engaged in such testing and demonstrated that the cost clearly outpaced the value of the yield. There was “little hope that further sampling [would] reveal a reasonable approach,” so the court declined to compel defendant to expend further time and resources.


PRACTICE TIPS After the 2015 Amendments to the Federal Rules of Civil Procedure, “standard” or boilerplate

discovery requests and objections do not suffice. Courts are increasingly looking at such discovery practice with a critical eye and forcing parties to tailor discovery to the individual case.

If you are opposing overly burdensome discovery, consider conducting sample search term reviews in order to demonstrate to the court the time and cost involved in comparison to the yield of responsive documents generated by such efforts.

PROTECTIVE ORDERS & PRIVILEGE

Strough v. General Motors, No. 18-CV-03303, 2019 WL 2357306 (D. Colo. June 4, 2019). In a products liability case against automobile and seatbelt manufacturers, the court denied plaintiff’s motion to include a sharing provision in a protective order that would allow plaintiff’s counsel to share the information obtained through discovery with “similarly situated litigants.” The court found that such a provision might cause delay in production as defendants would act more deliberately in deciding whether to produce or object to discovery. Moreover, “an unfettered sharing provision is in fact an improper attempt to provide a strategic discovery benefit to counsel and litigants in future cases against the defendants and has no bearing on discovery in this case.” However, the court noted that upon doubting that a document contains a trade secret or confidential information, plaintiffs are entitled to challenge a confidentiality designation, and defendants have the burden of proving that the document should be protected.

Operative, Inc. v. JAND, Inc., No. 17 Civ. 6936, 2019 WL 624853 (S.D.N.Y. Feb. 13, 2019). In a case alleging misappropriation of trade secrets, the court granted defendant’s motion to compel production of printouts of source code and a log file. The parties entered into a protective order that provided special protections for the source code. The order provided that the source code would not be produced in native format; allowed for review of the source code at a secure location in a room without internet or network access; prohibited copying, removing, or transferring any files; and allowed the inspecting party to reasonably request limited portions of source code to prepare for deposition. The court found that review of source code does not refer to all acts of familiarization and that after an expert conducts an on-site review, it is reasonable to request printouts of source code for the expert to conduct a proper analysis.

PRACTICE TIPS Documents and emails that include legal counsel must be reviewed diligently, as the inclusion of

counsel in a communication does not automatically confer privilege to that document.

When analyzing discovery requests, special attention should be paid to the potential disclosure of documents not relevant to the current litigation. Be diligent in making proper determinations of confidentiality under protective orders, and be aware that documents marked confidential may later lose that designation if the court determines the designation was unwarranted.


Guardiola v. Adams Cty. School District No. 14, et al., No. 1:18-CV-03230, 2019 WL 5535224 (D. Colo. Oct. 25, 2019). The court overruled defendants’ objection to the magistrate’s order compelling defendants to disclose emails to and from their attorneys because “the disputed e-mails do not directly request or offer legal advice.” Rather, the primary purpose of the disputed emails was to discuss increasing security at school board meetings. Because these were business communications, they were not protected by the attorney-client privilege.

Litigators and courts continue to explore new frontiers in eDiscovery as technology advances and new and different eDiscovery issues arise, resulting in an increasing amount of case law and guidance from courts.

The Tucker Ellis eDiscovery Group can address any questions you may have regarding the cases or issues discussed in this year-in-review report. Our partnership with a national vendor allows us to successfully navigate the eDiscovery process in matters of every size –from small cases for privately held businesses to significant, complex class action lawsuits involving Fortune 500 companies.

CONTRIBUTORS

Jeff Sindelar

Counsel

Rachel Byrnes

Associate

Jasmine Taylor

Associate