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Bullet-Point Update: Electronic and Federal Court Discovery Issues for the Week of July 7, 2017

Cybersecurity and Privacy   |   Litigation and Trials   |   Technology   |   July 7, 2017
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Cloud Computing

  • Use this to convince your clients that their cloud storage will be discoverable: PC Connection, Inc. v. Mereos, 2017 WL 1078121 (D. Md. March 22, 2017)(Awarding emergency injunction requiring independent forensic search of ESI including cloud storage to determine if trade secrets were stolen). 

Text Messages

  • Use this to defend against having to produce texts: Tingle v. Herbert, 2017 WL 2536584 (M.D. La. June 9, 2017)(Denying discovery of text messages on proportionality grounds).
  • Use these to persuade your clients they need to preserve their texts:
    • Brown v. Certain Underwriters at Lloyd’s London, 2017 WL 2536419 (E.D. Pa. June 12, 2017)(Granting sanctions for failure to preserve text messages).
    • Shandhai Weiyi Int’l Trade Co. v. Focus 2000 Corp., 2017 WL 2840279 (S.D.N.Y. June 27, 2017)(Sanctions for requests involving text messages).

Predictive Coding and Technology-Assisted Review

  • Use this to get a court to let you use predictive coding nested with keyword searching to save time and money: FCA US LLC v. Cummins, Inc., 2017 WL 2806886 (E.D. Mich. March 28, 2017) (Ordering use of TAR and then keyword searching).
  • Use this to get a court to let you use predictive coding to save time and money: Duffy v. Lawrence Memorial Hospital, 2017 WL 1277808 (D. Kansas March 31, 2017)(Calling it a “myth” that CAR is not as good as manual review).
  • Use this to get a court to let you use predictive coding and to explain when review should end on the basis of proportionality: Davine v. The Golub Corp., 2017 WL 549151 (D. Mass. Feb. 8, 2017)(Allowing predictive coding and ceasing review on good faith burden determination). 

Proportionality

  • Use this to support the idea that careful explanations are required to support a motion to compel: American Home Assurance Co. v. Weaver Aggregate Transport, Inc., 2017 WL 2721510 (M.D. Fla. June 23, 2017)(Compelling discovery where party explained proportionality by showing significance to issues in the case).
  • Use this to argue for more candid and fulsome responses to interrogatories as required by proportionality rules: Samsung Electronics America, Inc. v. Chung, 2017 WL 283621 (N.D. Tex. June 26, 2017)(Denying interrogatories motion to compel on proportionality but discussing need for specific objections and candid responses).
  • Use these to resist a motion to compel on proportionality grounds:
    • Leadership Studies, Inc. v. Blanchard Training and Development, Inc., 2017 WL 2819847 (S.D. Cal. June 28, 2017) (Denying discovery on proportionality of confidential documents).
    • Medicinova, Inc. v. Genzyme Corp., 2017 WL 2829691 (S.D. Cal. June 29, 2017) (Partially denying discovery on proportionality where counsel refused to narrow overly broad requests).
    • Babcock Power, Inc. v. Kapsalis, 2017 WL 2837019 (W.D. Ky. June 30, 2017), and In re Blue Cross Blue Shield Antitrust Litig., 2017 WL 2889679 (N.D. Ala. July 6, 2017)(Both denying discovery on proportionality).

Sanctions and Preservation

  • Use this to explain to business people why it’s important to properly search for and produce ESI: Nachurs Alpine Solutions, Inc. v. Banks, 2017 WL 2695301 (N.D. Iowa June 22, 2017)(Granting sanctions re ESI).


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