Bullet-Point Update: Electronic and Federal Court Discovery Issues for the Week of July 14, 2017

Cybersecurity and Privacy   |   Litigation and Trials   |   Technology   |   July 21, 2017
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Cloud Computing

  • Use this to convince your clients that their cloud storage may be discoverable: Open Text Corp. v. Grimes, 2017 WL 2733937 (D. Md. June 26, 2017) (Noting earlier entry of an agreed order requiring a party to produce all responsive documents he had in cloud storage, implicitly recognizing their discoverability).

Text Messages

  • Use this to defend against having to produce texts: J.A.H. Enterprises, Inc. v. BLH Equipment, LLC, 2017 WL 2979687 (M.D. La. July 12, 2017) (Finding "no basis" to require production of phones and tablets to allow opponent to search for text messages).

Keyword Searching, Predictive Coding, and Technology Assisted Review

  • Use this when you don’t trust the other side’s review of keyword-hit documents for responsiveness: Nachurs Alpine Solutions Corp. v. Banks, 2017 WL 2918979 (N.D. Iowa July 7, 2017) (Requiring defendant to produce all ESI containing keywords that it had reviewed and determined were not responsive, but requiring plaintiff to bear its own cost of reviewing them).

Proportionality and Discoverability

  • Use this to resist a motion to compel on proportionality grounds: Rodriguez v. County of Riverside, 2017 WL 2974919 (C.D. Cal. July 12, 2017) (Denying discovery of confidential spreadsheet of officer-involved shootings after in camera review showed it was only marginally relevant, information could be obtained in easier ways, and request was not narrowly tailored).
  • Use this to resist a motion to quash a non-party subpoena: Brushart v. Adams, 2017 WL 2964891 (S.D. Oh. July 12, 2017) (Denying motion for protective order because defendant had no standing to argue Rule 26 proportionality as a basis to quash a subpoena to a non-party).
  • Use this to argue that discovery should be limited on proportionality grounds where opponent’s support for requested discovery is weak: RKF Retail Holdings, Inc. v. Topicana Las Vegas, Inc., 2017 WL 2908869 (D. Nev. July 6, 2017) (Reopening discovery to allow limited corporate representative deposition to demonstrate relevance and proportionality of further discovery where requests were overbroad in light of apparent substantive weakness of claims).
  • Use this to resist a motion to compel that attacks your responses, alleging they’re factually inaccurate: Brown v. Mohr, 2017 WL 2832631 (S.D. Oh. June 30, 2017) (Denying motion to compel as inappropriate means to challenge the factual accuracy of a party's discovery responses).

Sanctions and Preservation

  • Use this when the other side is particularly shady in discovery: Babcock Power, Inc. v. Kapsalis, 2017 WL 2837019 (W.D. Ky. June 30, 2017) (Awarding sanctions where a party improperly subpoenaed a non-party's servers in an unrelated bankruptcy case in violation of the court's discovery orders. The court's admonition of plaintiff's counsel is well-worth close study).
  • Use this to guide you in handling materials obtained under shady circumstances: Raymond v. Spirit Aerospace Holdings, Inc., 2017 WL 2831485 (D. Kan. June 30, 2017) (Sanctioning plaintiff for failing to disclose for two years prior to suit that it had received defendant's confidential documents from an anonymous source; documents could not be used, a witness who had seen them was barred from testifying, and fees were awarded).
  • Use this to help avoid a motion for sanctions: Snider v. Danfoss, LLC, 2017 WL 2973464 (N.D. Ill. July 12, 2017) (Declining sanctions for failure to produce ESI that was not relevant or prejudicial on "no harm, no foul" grounds).
  • Use this to resist sanctions for destruction of arguably duplicative material: Direct Enterprises, Inc .v. Sensient Colors, LLC, 2017 WL 2985623 (S.D. Ind. July 13, 2017) (Declining sanctions under state law for spoliation of certain documents and samples where information was available from other sources).
  • Use this if you ever find a fabricated document in the other side’s production: Diamond Consortium, Inc. v. Hammervold, 2017 WL 2834683 (E.D. Tex. June 30, 2017) (Requiring a stipulation as to what records contained as a sanction for alleged "fabrication" of documents with a disclosure they had not originally contained)

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