2017 An Illuminating Year in E-Discovery Case Law

by Exterro, Inc.
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In a half-hour conversation with Exterro Director of Marketing Mike Hamilton, Bree Kelly, Attorney and Editor of EDiscoveryLaw.com, summarized the past year in e-discovery case law as illuminating. Perhaps thankfully, there were fewer bombshells (or laptops heaved off the roof). In their place, we saw more instructive rulings that help e-discovery teams think about proportionality, control, and defensibility. In turn, these cases can help legal teams influence stakeholders and get the buy-in needed to modify e-discovery processes and upgrade e-discovery technology.

In looking at the left side of the EDRM, two big rulings on the notion of control have implications moving forward. The issue of control is split across the circuits, with two competing definitions of control: “practical ability” against “legal right” to obtain.

  • Van Zant v. Pyle: the court ruled that a film production had “practical ability” control over texts a third party sent, and that therefore they were subject to discovery.
  • Williams v. Angie’s List: the court found that a continuing contractual relationship with a software company meant the defendant had a legal right to obtain information, and therefore it was subject to discovery.

A third ruling from 2017 (and a bonus one from 2016) highlighted the importance of sensible information governance policies before litigation arises can impact outcomes of e-discovery challenges.

  • Camicia v. Cooley: In this case, data was deleted in accordance with defendant’s policies. When the plaintiff sought sanctions, the court did not find malice or intent to deprive, since the deletion was dictated by policies in place prior to a reasonable anticipation of litigation.
  • Browder v. City of Albuquerque (2016): In this case, video evidence of an accident was lost by the city, and the court was not happy. It ruled that the city was “not excused from having effective policies in place.” While willing to excuse “human error,” it could not do so when it was a “symptom of a larger problem”—the lack of effective policies.

The moral of these cases is clear; as Bree Kelly explains, “Get your ducks in a row early. Have a policy in place and know the tools and systems to support them.”

Moving toward the right side of the EDRM, proportionality remained a key theme in 2017, and two cases showed both sides of the proportionality coin.

  • Solo v. UPS: In this case, UPS argued that a discovery demand was burdensome, as it would require six months and an expense of $120,000 to retrieve. This specific information proved persuasive to the court, and the parties struck a compromise.
  • Mann v. City of Chicago: The defendant didn’t even provide an estimate of the burden in its objection to a discovery request. The court rejected the argument that the party couldn’t provide an estimate until it began retrieval, once again demonstrating the need to prepare before litigation arises.

Three cases shed light on the issue of defensibility throughout the e-discovery process.

  • Mirmina v. Genpact LLC: In this case, the court clarified that a supervised custodian search, especially if there’s no evidence of bad faith, can be considered a defensible process.
  • Irth Solutions, LLC v. Windstream Communications, LLC: In this case, the parties agreed that a 502 (d) court order was not necessary to protect inadvertent disclosure of privileged information. As you can anticipate, the reason this case is interesting is because an issue of privilege arose. Since the parties explicitly declined a 502 (d) order, the court ruled that privilege had been waived.
  • Harleysville Ins. Co. v. Holding Funeral Home, Inc.: This case demonstrated that it is possible to inadvertently waive privilege, when a client shared a non-password protected file on a cloud service with a third party. When the third party provided the link to this privileged document in response to a subpoena, the opposing party got access to the document. The court ruled that storing the document without a password in an accessible place was tantamount to a waiver.

Find many of these cases—and many many more—in Exterro’s Simplified Case Law Library.

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