Each week, our plaintiff electronic discovery firm publishes summaries of the top eDiscovery case law opinions and notes the trends taking place throughout the country. One trend we’ve seen this year includes the rise of requests for terminating sanctions for electronic discovery violations.
Additionally, we continue to see more cases regarding predictive coding, as this methodology is being used more frequently. However, the current trend is to not force a party that does not want to use predictive coding to do so against its will.
Finally, text messages are popping up as a routine part of electronically stored information in civil litigation. This is certainly not surprising, as texting has become the favored means of communication, even in business. However, obtaining the content of text messages may be challenging, particularly in BYOD (bring your own device) cases where one cell phone is utilized for both business and personal communications.
Terminating Sanctions: When Does ESI Spoliation Warrant the Most Severe Sanction
Schlossburg v. Abell, Bankruptcy Case No. 13-13847, Adversary No. 14-00417 (Bankr. D. Maryland, April 11, 2016). The court entered attorney fees and a judgment against Defendants as terminating sanctions in a bankruptcy clawback proceeding. The court found one of the Defendants, an attorney herself, had used computer wiping software after a litigation hold was entered and after she had sworn under oath she knew of her duty to preserve this evidence.
Applied Underwriters, Inc. v. American Employer Group, Case No. 14-00379 (E.D. Tenn., May 2, 2016). The court declined to order terminating sanctions against Plaintiff for producing a document dump which was not organized, failing to review or format the documents, failing to Bates stamp and more. The court did enter a monetary sanction and admonished Plaintiff that if the poor behavior continued, it would dismiss the case.
Teledyne Technologies Inc. v. Shekar, Case NO. 15-1392 (N.D. Ill., Aug. 22, 2016). The court ordered terminating sanctions against Defendant, entering judgment against him, dismissing counterclaims and ordering attorney fees and costs. This was due to wiping a hard drive and cell phone after being ordered to produce them, as well as non-compliance with contempt orders.
Bischoff v. Brittain, no. 2:14-dv-1970 KJM CKD (October 26, 2016). The court denied the request for terminating sanctions, as it found the Defendant’s ESI searches to be adequate.
Predictive Coding: Encouraged, But Not Forced
Dynamo Holdings Limited Partnership et. al. v. Commissioner of Internal Revenue, Consolidated Case Nos. 2685-11 and 8393-12 (U.S. Tax Court, D.C., July 13, 2016). The court held the methodology that utilized predictive coding to be a reasonable inquiry as required under the Federal Rules of Civil Procedure. The court denied the motion to compel additional searches or productions.
Hyles v. New York City et. al., Case No. 10-3119, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016). Plaintiff requested the court to order Defendant to use predictive coding to search for responsive documents. While the court noted predictive coding was cheaper and superior to keyword searches, it did not want to force a party to use technology assisted review (TAR) against its will.
In re Viagra Products Liability Litigation, 16-02691 (N.D. Cali., Oct. 14, 2016). Similar to Hyles, the court refused to force Defendant to use predictive coding over its objection. Although the court noted predictive coding could be shown to be more efficient than other methods, that was an insufficient basis to compel Defendant when there was no evidence Defendant’s chosen method would be inadequate.
Text Messages: Willful Deletions are Spoliation
Benefield v. MStreet Entertainment, LLC et. al., Case No. 13-1000 (M.D. Tenn., Feb. 1, 2016). Spoliation was found against Defendant after text messages were “unavailable.” This was after Plaintiff made it known early in the case that the text messages needed to be preserved for production. The court disagreed with Defendant’s assertions that privacy concerns outweighed the importance of the text messages.
First Financial Security, Inc. v. Lee et. al., Case No. 14-1843 (D. Minn. Mar. 8, 2016). Sanctions, including an adverse inference instruction and monetary fine, were affirmed for lost text messages, even though Defendants claimed the deletions were innocent.
First Financial Security, Inc. v. Freedom Equity Group, LLC, Case NO. 15-1893 (N.D. Cali., Oct. 7, 2016), Plaintiff proved spoliation under FRCP 37(e) for missing text messages when the court found the text messages were deleted as part of a deliberate attempt to withhold evidence.
Reach Out to Our eDiscovery Experts: Working Exclusively for the Plaintiff’s Side
The plaintiff eDiscovery experts at ILS use predictive coding and technology assisted review while working closely with their clients and opposing parties for a cost-effective and efficient means of producing relevant documents in civil litigation. Reach out to us to learn more about our electronic discovery services.