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Publications | November 12, 2019
9 minute read

Fall 2019 eDiscovery Case Briefs

Progressive Emu Inc. v Anderson Weidner LLC
2019 WL 3798494 (11th Cir Aug 13, 2019) 
The plaintiff’s counsel waited until the last business day before trial to serve overbroad “trial subpoena” on the defendant’s parent corporation requiring compliance the next business day and outside the 100-mile limitation of Fed R Civ P 45(c)(1)(A). The appellate court upheld an award of attorney fees under Rule 45(d)(1) against the plaintiff’s counsel and added an award of attorney fees against the plaintiff’s counsel for pursuing a frivolous appeal under Fed R App P 38.

Anokiwave, Inc. v Rebeiz
2019 WL 3935778 (SD Cal Aug 20, 2019)
Despite the district court’s acknowledgment that the non-party had agreed to produce subpoenaed records and the defendant’s lack of standing to quash the subpoena, the court modified the subpoena based on the defendant’s overbreadth and relevancy objections. 

Lotus Industries, LLC v Archer
2019 WL 2247793 (ED Mich May 24, 2019)
The district court shifted the cost of uploading subpoenaed records to an eDiscovery review platform plus five percent of the anticipated attorney fees for privilege review and privilege log compilation to the plaintiff pursuant to Fed R Civ P 45(d)(2)(B)(ii). In addition, it required prepayment of the costs based on the plaintiff’s past failures to pay sanctions in related litigation.

Casun Invest, A.G. v Ponder
2019 WL 2358390 (D Nev June 4, 2019)
In quashing the defendant’s subpoena and awarding sanctions against the defendant pursuant to Fed R Civ P 45(d)(1), the district court noted that where the non-party objects to a patently overbroad subpoena, the issuing party has the duty to either substantially limit and modify the subpoena or withdraw it.

In re Schaefer
2019 WL 2336698 (WD Pa June 3, 2019)
The government’s subpoena to non-party was quashed pursuant to Fed R Civ P 45(d)(3)(A)(iv) and 45(d)(3)(B)(ii) to compel expert testimony concerning a report she authored for the RAND Institute regarding the effects and feasibility of the service of transgendered individuals in the U.S. military where report disclosed its sources, data and methodologies and could be impeached by the government’s own experts and where compelling experts’ testimony would harm her reputation and RAND’s reputation for objectivity and independence. 

Bellamy v Wal-Mart Stores, Texas, LLC
2019 WL 3936992 (WD Tex Aug 19, 2019)
The defendant filed a motion pursuant to Fed R Evid 502(b) to clawback an inadvertently produced litigation file. The court’s in camera review of the file revealed that the defendant’s expert had conceded the defendant’s liability early on in the case. While the court allowed the defendant to clawback its litigation file, the court used the concession to strike the defendant’s comparative negligence defense on the plaintiff’s motion for spoliation sanctions under Fed R Civ P 37(e), finding that the plaintiff had been prejudiced by the defendant’s loss of a video recording of the plaintiff’s accident.   

Cruz v G-Star Inc.
2019 WL 2521299 (SDNY June 19, 2019) 
The defendant’s duty to preserve attached prior to the lawsuit, and it failed to initiate a timely litigation hold and permanently deleted the plaintiff’s email account in violation of its own internal retention policy. Even after initiating a litigation hold and subsequent to the plaintiff filing suit, the defendant later deleted the plaintiff’s SAP account. The court determined that the defendant’s spoliation evidenced an “intent to deprive” under Fed R Civ P 37(e)(2) and awarded the plaintiff an adverse inference jury instruction to cure prejudice from the loss of ESI. 

University Accounting Service, LLC v ScholarChip Card, LLC
2019 WL 2404512 (D Ore June 7, 2019)
An individual defendant admitted to intentionally deleting information on his personal computer’s hard drive and in his personal backup cloud account after receiving a subpoena in related litigation in which he was a non-party because it was “exactly the type of damning information that [plaintiff wanted] to catch [him] with.” The court granted the plaintiff’s motion for sanctions under Fed R Civ P 37(e)(2) and would instruct the jury that if it found that the individual defendant acted with the intent to deprive the plaintiff of the deleted information’s use in litigation, it could presume that the deleted information was unfavorable to the defendant.

Stimson v Stryker Sales Corporation
2019 WL 2240444 (ND Ga Jan 24, 2019)
The plaintiff was unable to produce all text message exchanges with a coworker, and there were discrepancies between those he did produce and those produced by the coworker. The court denied the defendant’s motion for case terminating sanctions under Fed R Civ P 37(e)(2) because regardless of the plaintiff’s loss or alleged alteration of text messages, the text messages were available to the defendant via the coworker. 

Karsch v Blink Health Ltd.
2019 WL 2708125 (SDNY June 20, 2019) 
A plaintiff’s duty to preserve triggered when he sent a demand letter threatening to sue the defendant despite not filing a suit until 23 months later as the time of filing was wholly within his control. His failure to preserve an email server containing relevant information resulted in sanctions under Fed R Civ P 37(e)(1), which included allowing the defendants to present evidence to the jury concerning the plaintiff’s spoliation and permitting the jury to consider that evidence in evaluating credibility and making its decision.

Incardone v Royal Carribean Cruises, Ltd.
2019 WL 3779194 (SD Fla  Aug 12, 2019) 
A defendant only preserved ninety-one minutes out of a possible 14,400 hours of video recording of a cruise ship being battered by hurricane force winds. The court denied the plaintiffs’ motion for spoliation sanctions under Fed R Civ P 37(e), and found that the preserved video was sufficient to show the impact of the storm on the ship. The plaintiffs suffered no prejudice, especially where the plaintiffs claimed damages for psychological, not physical, injury and during the worst part of the storm, the plaintiffs were confined to their cabins and no video cameras recorded the interior of the cabins. 

Thompson v H.W. Clarke
2019 WL 4039634 (WD Va Aug 27, 2019) 
The court denied the plaintiff’s motion for spoliation sanctions under Fed R Civ P 37(e), holding that even if the defendant acted with an “intent to deprive” the plaintiff of the use of lost video recordings, it would not award sanctions against the defendant due to the video recordings’ lack of relevance. 

U.S. v Carter
2019 WL 3798142 (D Kan Aug 13, 2019) 
Petitioners filed motions pursuant to Fed R Crim P 41(g) for return of property and pursuant to 28 USC §2255 for post-conviction sentencing relief. The motions were ancillary to criminal proceedings and civil in nature, and the court held that issues concerning spoliation of electronic evidence would be governed under Fed R Civ P 37(e) and the defendant’s destruction of relevant ESI in willful violation of numerous court preservation orders constituted “intent to deprive,” potentially triggering sanctions that could include adverse inferences. 

Woods v Scissons
2019 WL 3816727 (D Ariz Aug 14, 2019) 
A defendant’s employer, a municipality and non-party in plaintiff’s §1983 civil rights action, deleted relevant ESI under its exclusive control after the defendant’s duty to preserve had attached. The court imputed the non-party employer’s actions to the defendant since the municipality had no sovereign immunity under the Eleventh Amendment and its agreement to indemnify the defendant against any judgment aligned their interests in the preservation of the evidence.  

Zhang v City of New York
2019 WL 3936767 (SDNY Aug 20, 2019) 
Despite finding that the plaintiffs had established relevancy and prejudice for the defendant’s loss of video surveillance footage and telephone recordings, the court limited sanctions under Fed R Civ P 37(e)(1) to attorney fees and costs associated with bringing spoliation motion because the plaintiffs could obtain (and had obtained) other evidence, such as testimony and medical records, to prove their case.

Heartland Food Products, LLC v Fleener
2019 WL 2501862 (D Kan June 17, 2019)
Parties had agreed to produce via PDF format in response to “targeted requests for email communications” and that “no open-ended ESI reviews [would] be required.” The court would not order the plaintiff to reproduce a TIFF production of emails where the defendant issued open-ended, not targeted, requests for the emails, the emails were produced as kept in the usual course of business as allowed under Fed R Civ P 34(b)(2)(E)(i) and the requests did not otherwise specify the format for production under Fed R Civ P 34(b)(2)(E)(ii). 

Homeland Ins. Co. of New York v Health Care Serv. Corp.
330 FRD 180 (ND Ill 2019)
In a declaratory judgment and breach of a contract action concerning coverage under a second-layer excess insurance policy, the court denied a plaintiff’s motion to compel production of a settlement agreement between the defendant and the primary coverage provider, as the defendant had made no request for coverage under a second-layer policy, making evidence regarding “exhaustion of coverage” irrelevant to the proceedings. 

Keim v ADF Midatlantic, LLC
2019 WL 2298787 (SD Fla May 30, 2019) 
The court granted the defendants’ motion to compel production of email exchanges between the plaintiff’s counsel and counsel for non-parties regarding the modification, scope and execution of subpoenas as the emails were relevant and proportional to the needs of the case under Fed R Civ Pro 26(b)(1), given the defendants’ strong interest in ensuring the validity and reliability of the documents subpoenaed from the non-parties and were not a protected attorney work product.

Olsen v Owners Ins. Co.
2019 WL 2502201 (D Col June 17, 2019)
Neither Fed R Civ P 26(a)(1) nor 26(b)(1) required plaintiff to produce a total amount for his non-economic and impairment damages as they were for garden-variety emotional distress and permanent physical impairment and such damages are not typically suitable to a precise calculation.

Laub v Horbaczewski
2019 WL 3492402 (ED Cal July 30, 2019) 
In a case based on diversity jurisdiction, a court finds that state law controls procedure for determining whether a document is privileged and declines in camera inspection request based on prohibition in California Evidence Code 915. 

Ciesniewski v Aries Capital Partners, Inc.
2019 WL 2869671 (SD Ind July 3, 2019)
Where one defendant acted as agent for other defendants in the hiring of attorneys to file debt collection actions nationwide, under Fed R Civ P 37 court would not compel defendant-principals to produce records regarding debt collection actions where the plaintiff could simply request defendant-agent since it had only direct contact with attorneys.

Wang v Omni Hotels Mgmt. Corp.
2019 WL 3852590 (D Conn Aug 16, 2019)
Court compels production of video recording of plaintiff’s “slip and fall” accident at the defendant’s hotel, but only after plaintiff’s deposition, finding that video recording is “surveillance video” and it would lose its impeachment value if disclosed to plaintiff prior to her deposition. 

Dixon v Bank of America, N.A.
2019 WL 3767097 (SD Fla Aug 9, 2019) 
In denying a non-party’s motion to quash subpoena under Fed R Civ P 45(d)(3) on grounds raised by the non-party, the court would not sua sponte raise issues of relevancy and proportionality despite having genuine concerns about both where neither the non-party nor the other party to proceedings raised those issues, and the court therefore deemed those issues waived. 

Johnson v Soo Line Railroad Co.
2019 WL 4037963 (ND Ill Aug 27, 2019)
Before ruling on defendant’s motion to compel production of a plaintiff’s tax returns, the court would apply proportionality factors under Fed R Civ P 26(b)(1) and weigh the defendant’s need for the returns with the burden that compelled production of income tax returns may impose on voluntary self-reporting of income under federal tax system during the court’s in camera review of the tax returns.