S.D.N.Y.: CAL Software Name and Workflow Makes Discovery Transparent

Today, Magistrate Judge James L. Cott issued a decision in an employment discrimination case, Kaye v. New York City Health & Hosps. Corp., 18-CV-12137 (JPO) (JLC), 2020 U.S. Dist. LEXIS 9240 (S.D.N.Y. Jan. 21, 2020), denying the Plaintiff’s motion for judicial intervention regarding the Defendants’ ESI production. The Court faulted the parties for failing to meet and confer about discovery including such issues as the defendants’ neglecting to submit a privilege log. The Plaintiff failed to submit evidence to show the discovery process had been skewed. Discovery on discovery will only be allowed where there is a factual basis for it, and the cost and length of discovery won’t be extended “ad infinitum.” *4. The Plaintiff did not show a basis on which to review the Defendants’ search terms and culling protocol, since no deficiency was shown in the production.    “In this case, defendants have represented that they have provided detailed information regarding the collection criteria they used, the name of their continuous active learning ("CAL") software, their CAL review workflow, and how they intend to validate the review results. That is sufficient information to make the production transparent.” Id. at *4. The Plaintiff did not show a basis on which to review the Defendants’ search terms and culling protocol, since no deficiency was shown in the production.   

S.D. Ind.: Searching Electronic Records Cannot Be Taxed Under 28 U.S.C. § 1920

This past week, Judge Robert L. Miller, Jr. issued a decision, In re Method of Processing Etha Related Subsystems '858 Patent Litig., No. 1:10-ml-02181-RLM-DML, 2020 U.S. Dist. LEXIS 8694 (S.D. Ind. Jan. 15, 2020), on the Defendants' bill of costs. The Plaintiffs objected that some of the costs should not be recoverable under 28 U.S.C. 1920. Here's a rundown of how the Court ruled:

1. Not sharing the cost for deposition transcripts with other defendants was necessary and reasonable, and the invoices did not need to enumerate late fees, charges for conference rooms, and the reporter's travel expenses. However, while some incidental costs are recoverable, late fees cannot be recoverable when no explanation is provided for them.

2. The amount that the defendants wanted to be reimbursed for the transcripts was unreasonable. Judge Miller determined that transcript costs could only be recovered up to $3.65 per page for original certified transcripts and 90¢ for certified copies, but declined to allow recovery for the copies at all, noting a split in authority on this point in the 7th Circuit.

3. There is also a circuit split as to whether or not indices should be included as part of the total page count of the transcript. The Court decided that, "The court is persuaded that, generally, indices are ordered for the convenience of counsel. Beyond citing to favorable cases, ICM has provided no argument as to why indices were reasonable and necessary in this case. The court won't tax their costs on the plaintiffs." Id. at *6.

4. The Court did not find that it was necessary to object to the videotaping of a deposition at the time of deposition, and decided not to tax the cost for the video to the Plaintiffs in all instances. "The court doesn't agree that the mere fact that the witnesses weren't parties or were adverse expert witnesses made these video depositions reasonable and necessary. Since Al-Corn provided no additional reasons to anticipate the witnesses' unavailability at trial, the court won't tax plaintiffs for the video depositions." Id. at *9. The fact that a party could not be subpoenaed was also not a sufficient basis on which to tax the cost of videotaping their deposition.

5. Fees for service of process are limited to the amount charged by the U.S. Marshals service, which is $65 per hour.

6. The Court would also not allow recovery for copying or blow back costs where the bill of costs did not state what the copies were for, or identify the documents that were copied.

7. Witness travel expenses are limited to 58¢ per mile.

8. "Fees for searching electronic records and for research aren't recoverable under § 1920, but must be sought in a motion for attorneys fees." Id. at *14.

9. Judge Miller also declined to tax the costs of Fedex deliveries and conference calls under §1920.

D. Nev. Issues Protective Order for IMEI Data

Yesterday, Magistrate Judge Daniel J. Albregis issued an order granting the Plaintiff's motion to compel. See, Metro PCS v. Connection, No. 2:15-cv-01412-JAD-DJA, 2020 U.S. Dist. LEXIS 4351 (D. Nev. Jan 10, 2020). The Plaintiff alleged that the Defendants failed to produce requested ESI and agree to a deposition about its preservation and retention practices. The Plaintiff showed that invoices were produced elsewhere which should have been included in a production from the Defendants' business accounts. Judge Albregis found that there were significant concerns about the completeness of the Defendants' search.

The court noted that, "the case law in this District is clear that Plaintiff is entitled to know what categories of ESI Defendants preserved and collected and how a reasonable search for responsive documents was performed with sufficient specificity to demonstrate due diligence." Id. at *5. The Defendants were ordered to submit a declaration explaining why certain documents had not been preserved within 14 days; produce all non-privileged responsive documents for the search in question; and participate in a meet and confer with respect to whether or not a deposition was necessary. Judge Albregis said that a deposition would be justified if the Defendant could not explain why certain invoices were lost.

The Court also agreed to the Plaintiff's request for a protective order for a spreadsheet with a IMEI analysis of the Defendants' phone data. IMEI stands for "International Mobile Equipment Identity". It is used to identity mobile phones. The IMEI number identifies the phone, but not the actual subscriber.

The Court denied the Defendants' motion to compel Metro to conduct a search of all of its phone records, absent information about specific phones, as overboard and not proportional to the needs of the case.

The Court permitted the Plaintiff to file a motion to recover fees and costs as a form of sanctions with respect to the motions to compel.