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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

A. ESI Protocol: Details can be Critical

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City of Rockford v Mallinckrodt ARD, Inc,&nbsp;326 FRD 489 (ND Ill 2018)

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The City of Rockford, Illinois, among others, sued Mallinckrodt ARD Inc., a pharmaceutical manufacturer, on antitrust and racketeering grounds due to the company’s pricing of the drug Acthar.The parties had generally agreed to the terms of an ESI protocol, including the search methodology used to create the universe of potentially responsive documents to review prior to production. But, the parties could not agree on what to do about documents not returned by using the agreed upon search methodology — technically referred to as the “null set.”

Defendant proposed that plaintiffs should review the documents produced under the search methodology. &nbsp;Then, if plaintiffs reasonably believed that categories of responsive documents were missing, the parties would meet and confer to discuss modifications to the agreed-upon search methodology.&nbsp;Then, if plaintiffs reasonably believed that categories of responsive documents were missing, the parties would meet and confer to discuss modifications to the agreed-upon search methodology.

Plaintiffs proposed that defendant select and review a statistical random sample of the null set and produce any responsive documents found therein. Then, the parties would meet and confer to discuss modifications to the agreed-upon search methodology.

The Court sided with the plaintiffs. Examining the proportionality factors in Rule 26(b)(1), the Court found that the importance of the issues in the case, the potential for significant damages, the defendant’s possession of virtually all of the significant evidence, the defendant’s resources, the criticality of ESI to resolving the issues, and the minimal burden and expense to defendant, all weighed in favor of the plaintiffs’ proposal.

In cases where the burden of discovery is asymmetrical — one party possesses the vast majority of the relevant information — the proposal adopted by the Court has the potential to vastly expand that party’s discovery obligations. Whenever entering into an agreed ESI protocol, the at-risk party should:

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B. Rule 37(e) Spoliation Sanctions: Negligent Loss of Evidence Doesn’t Warrant Stiff Sanctions

Barbera v Pearson Education, Inc, 2018 WL 4939772 (7CA Oct 12, 2018)

Employee filed a Title VII sex discrimination case against her employer alleging that she was not allowed to resign with severance pay as three similarly situated men had been allowed to do. During the course of discovery, she learned that defendant lost an email exchange she had with a senior manager regarding severance. Employee filed a Rule 37(e) motion for spoliation sanctions.

The magistrate judge found that the email should have been preserved and that its loss warranted sanctions under Rule 37(e). The magistrate did not find that defendant acted with “intent to deprive” the plaintiff of the email, limiting the available sanctions to the less severe measures allowed under Rule 37(e)(1). The magistrate judge imposed a sanction precluding defendant from contesting plaintiff’s characterization of the contents of the lost email at trial. Subsequently, the magistrate granted defendant’s motion for summary judgment, and plaintiff appealed.

On appeal, plaintiff argued that the magistrate judge erred in not finding defendant intended to deprive her of the email and should have ordered that a jury be required to accept all of her proposed stipulations of fact, not just those related to the content of the email. The appellate court affirmed the magistrate’s spoliation ruling. There was no evidence that defendant intended to deprive the plaintiff of the contents of the email. Even if sanctions were warranted under Rule 37(e)(2), the magistrate judge’s sanction was sufficient to cure any prejudice from the loss of the email — which is the objective under both Rule 37(e)(1) and Rule 37(e)(2) — to impose the least severe sanction necessary to cure the prejudice resulting from the loss of ESI.

Accepting plaintiff’s characterization of the lost email did not create any genuine issue of material fact for trial. So, the appellate court also affirmed the grant of summary judgment in defendant’s favor.

Spoliation sanctions don’t always have to be painful. In cases where prejudice results from the inexcusable loss of ESI, the spoliator should remember to:

C. Requests for Production: Requesting Metadata is Essential

Lawrence v City of New York, 2018 WL 3611963 (SDNY July 27, 2018)

Plaintiff filed a civil rights action against police officers for injuries and damages suffered during a warrantless intrusion of plaintiff’s apartment. During the incident, plaintiff alleges that the officers physically battered her, damaged her property and stole $1,000.

Plaintiff provided a series of photographs to her counsel that she represented were taken within a few days of the incident depicting the damages caused by the police officers. Counsel reviewed the photos, saved them to PDF files, bates-stamped them and produced them to defendants during the course of discovery.

During her deposition, plaintiff testified inconsistently as to who took the photos, first identifying her son and his friend, and later stating she took most of the photos and her son took a few, but none were taken by her son’s friend. This confusion led the defendants to request plaintiff to turn over the smartphones used to take the photos. Plaintiff’s counsel objected, but agreed to turn over the photos’ native files.

An examination of the metadata from the native files revealed that 67 of the 70 pictures were taken two years after the incident and just prior to being turned over to plaintiff’s counsel. The defendants moved for sanctions under Federal Rules of Civil Procedure 11, 26 and 37, and under the court’s inherent authority, requested dismissal with prejudice of plaintiff’s claims.

The court determined that defendants’ rules-based grounds for dismissal were unavailable. The court found that Rule 11, which concerns pleadings, did not apply since the photos were a discovery matter. Next, the court found that Rule 26(g), which concerns discovery responses, did apply. However, the court found that the plaintiff’s counsel was careless, but not “objectively unreasonable” in certifying the accuracy of plaintiff’s discovery responses. The court then found that Rule 37(b) did not apply because the production of the photos did not violate any court order.

The court then examined its inherent authority, noting that “[b]eyond the powers conferred expressly by rule and statute, a federal court has inherent power to sanction a party for bad faith litigation conduct.” The court found that the “creation of staged photos was the beginning of a sustained effort by [plaintiff] to mislead defendants and this Court.” Fearing that any lesser sanction than dismissal with prejudice would encourage future litigants to attempt to perpetrate fraud on the court, the court concluded that plaintiff’s conduct “requires that the policy favoring adjudication on the merits yield to the need to preserve the integrity of the courts.”

In many cases, the criticality of ESI evidence depends on “when.” When was this email sent? When was this picture taken? In those cases:

D. Requests for Production: Narrowly Tailored Is Required

McKey v US Bank National Association, 2018 WL 3344239 (D Minn July 9, 2018)

A terminated employee brought age discrimination and retaliation claims against her former employer. Defendant alleged that it terminated the employee due to poor performance. The employee originally requested that the defendant produce the complete personnel file of every employee who reported to her supervisor for the period January 2013 to present. Two days later, the employee narrowed her request to only personnel records pertaining to discipline, termination, performance conduct or performance evaluation and limiting the timeframe to January 2015 to the present. The defendant objected on the basis that the narrowed request was disproportionate to the needs of the case. The employee moved to compel.

The court ruled in favor of the employee and ordered defendant to produce the records under the narrowed request. Because the employee’s claims would likely require indirect evidence to succeed, the court found that the employment records of similarly situated employees were relevant and proportional to the needs of the case — even potentially dispositive. Moreover, the defendant made no showing of how production of the records would be unduly burdensome or of how the employee could obtain the requested information from an alternate source.

E. Discovery Responses/ Objections: Boilerplate Objections are Sanctionable

Wesley Corp v Zoom TV Products, LLC, 2018 WL 3722700 (ED Mich Jan 11, 2018)

Plaintiffs sued alleging that defendants had breached their settlement agreement relating to previously filed patent and trademark infringement litigation. Plaintiffs moved to compel defendants to produce documents and to amend their interrogatory responses. Defendants’ response to almost every interrogatory was:&nbsp;

[Defendants] object[] to this interrogatory as vague, overly broad, unduly burdensome, harassing, and/or seeking information that is irrelevant and/or not reasonably calculated to lead to the discovery of admissible evidence. Subject to, and without waiving its objection,...

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And, their response to almost every document request was:

[Defendants] object[] to this request as vague, overly broad, unduly burdensome, harassing, and/or seeking information that is irrelevant and/or not reasonably calculated to lead to the discovery of admissible evidence. Subject to, and without waiving its objection,  [Defendants] indicate[] it does not have any responsive documents within its possession, custody and control.

At the hearing on plaintiffs’ motion to compel, the parties agreed to a 45-day extension of the discovery deadline to allow defendants to amend their discovery responses. The court agreed to this extension, but did take defendants to task for their use of boilerplate objections — and granted plaintiffs’ request for attorney fees.

This court is not the first — nor will it be the last — to condemn the use of boilerplate objections. Indeed, perhaps the only thing more surprising than the pervasive reliance on boilerplate is the practice’s continued existence in the face of strong and widespread criticism by federal courts. (Citations omitted.) These cases, in their interpretation of the discovery rules and their denunciation of boilerplate, “are not aspirational, they are the law.” (Citation omitted.)

The court went on to state its displeasure at having to regulate the discovery process “where attorneys engage in foot-dragging and obstructionism.” The court promised that further interventions would be “accompanied by more significant sanctions....”

Do not use boilerplate objections.

<a href="https://www.wnj.com/Industries-and-Practices/Practices/Data-Analytics-eDiscovery">Learn more by visiting our Data Analytics + eDiscovery Practice Group page</a>.

Staff Attorney

Kenneth J. “Ken” Treece

Cybersecurity and Privacy

Data Analytics and eDiscovery

Case Law: Summaries and Suggestions

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Case Law: Summaries and Suggestions

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