Unfinished Business: A Wish List for New FRCP Amendments
December 28, 2017
Q & A with GDPR Expert Adam Finlay from McCann FitzGerald
January 16, 2018

Lessons Learned for 2018: Spotlighting the Top eDiscovery Cases from 2017

With the New Year upon us, it is worth looking back at some of the key eDiscovery cases from 2017 and the lessons they offer going forward in 2018.

Get a Rule 502(d) Order to Protect Privileged ESI

Case: Irth Sols., LLC v. Windstream Commc'ns LLC, No. 2:16-cv-219, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017)

Summary: The court in Irth held that defendant waived its attorney-client privilege claims over 43 documents it inadvertently produced in discovery. Defendant argued that the documents at issue should maintain their privileged status pursuant to the parties’ clawback agreement. The court rejected that argument, finding instead that the clawback agreement was unenforceable since it was “ambiguous and deficient.” Nor was there merit to defendant’s assertion of inadvertent production under Federal Rule of Evidence 502(b) as the court determined that defendant neglected to take reasonable steps to prevent the production of the documents in question.

Lessons for 2018: Parties should obtain a court order under Federal Rule of Evidence 502(d) to protect against the mistaken disclosure of privileged ESI in discovery. While clawback agreements are useful, Rule 502(d) orders are more effective in reducing the expense, hassle, and risk of litigating over the mistaken disclosure of privileged ESI. In particular, properly drafted 502(d) orders eliminate the need for counsel to show that a disclosure of privileged information was “inadvertent” under Rule 502(b). Instead, parties may simply demand that adversaries return or destroy the mistakenly produced materials. Having a suitable 502(d) order would have obviated the privilege waiver in Irth.

The Business Judgment Discovery Rule and its Impact on Information Governance

Case: Solo v. United Parcel Service Co., No. 14-cv-12719, 2017 WL 85832 (E.D. Mich. Jan. 10, 2017)

Summary: In Solo, the court determined that a responding party’s decision to keep certain package shipment information in active data format only for a limited time was reasonable. Given the nature and scope of its business operations, a “valid business reason” existed for the responding party to keep that information archived on backup tapes. As a result, the court reasoned that the requesting party’s demand for five plus years of information (most of which was stored exclusively on backup tapes) was held to be “extraordinarily burdensome” and pared back accordingly.

Lessons for 2018: Solo and other cases are instructive on how an organization’s information-related policies can help satisfy a proportionality-based “business judgment” rule in discovery. Companies should adopt information retention and other policies that are driven by reasonable business exigencies. Policies that do so will likely help an organization obtain proportionality credit in discovery while strengthening its information governance program.

Guidance on Using Technology-Assisted Review (TAR)

Case: Winfield v. City of New York, No. 15-cv-05236, 2017 WL 5664852 (S.D.N.Y Nov. 27, 2017)

Summary: The Winfield court held that defendant’s TAR process was sufficient. In particular, the court found the seed set to be thoroughly developed and the validation process to satisfy TAR “best practices.” Nevertheless, errors in the review process and an unreasonably limited understanding of plaintiffs’ claims and allegations resulted in responsive information being withheld from production. Both of which led the court to order that defendant produce 400 randomly sampled, nonresponsive documents from its custodians. The court observed that such a production order would provide greater “transparency” and allow plaintiffs to determine whether there were additional production errors.

Lessons for 2018: Winfield demonstrates the importance of having a thoroughly vetted TAR process that satisfies judicial scrutiny. With courts having been directed to more actively manage the discovery process, clients should enlist sophisticated expertise to ensure their TAR workflows, other search methodologies, and review strategies comply with court expectations. Otherwise, errors may transpire that lead to detrimental results such as the production of hundreds of nonresponsive documents in Winfield.

Awareness of Relevant ESI on Messaging Applications

Case: Brown v. City of Ferguson, No. 15-CV-0831 ERW, 2017 WL 386544 (E.D. Mo. Jan. 27, 2017)

Summary: In Brown, the court ordered plaintiffs to produce information from their social media accounts including “private, personal communications on Facebook Messenger.” Plaintiffs had argued that information they exchanged through Facebook Messenger – a messaging application associated with a Facebook social media account – was protected from discovery by the right to privacy. The court rejected that assertion, holding instead that concerns over privacy could not safeguard relevant communications from discovery.

Lessons for 2018: Counsel should become aware that relevant information is often found in messaging applications. Popular applications such as Facebook Messenger, WhatsApp, and iMessage are increasingly used for personal and business discussions. As a result, they may – as in Brown - contain relevant information that must be preserved and produced in discovery. Understanding how to preserve, produce, and request such information in discovery is an essential task for counsel who wish to effectively represent their clients in litigation.

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.
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