W.D. Tenn.: Loss of Email During Conversion Not Sanctioned

Yesterday, Judge Thomas L. Parker issued a decision, Builders Insulation of Tenn. v. S. Energy Solutions, No. 2:17-cv-02668-TLP, 2019 U.S. Dist. LEXIS 155921 (W.D. Tenn. Sept. 12, 2019) denying the Plaintiff's renewed motion for sanctions and overruling objections to a magistrate judge's report and recommendation.

The Plaintiffs objected to the magistrate judge's determination of when the duty to preserve arose. Judge Parker ruled that the interactions of a defendant during his firing with the attorney for the Plaintiff (which included requests for documents and threats of litigation) did not trigger a duty to preserve. "The mere mention of litigation or termination in seeking to get business records from an employee, in such unclear circumstances, was not enough here to raise the duty to preserve at the time of Thom Davis's [the Defendant] termination." Id. at *7-8. The Court consequently did not fault the Defendant for its subsequent destruction of business records.

The Defendants lost emails from its GoDaddy.com accounts when converting them after the suit was filed. The Plaintiff challenged the magistrate judge's finding that that the Defendants' deletion of emails was no more than negligent, but Judge Parker agreed with the magistrate judge's holding. "Although Plaintiff is correct in its assertion that switching email accounts is a deliberate act, the evidence here suggests that Defendants did not understand the effect switching accounts would have on the emails in the GoDaddy.com accounts." Id. at *12. When the Defendants migrated from GoDaddy.com to Bluehost, they unexpectedly found that they could not access Outlook data. There was no proof of intent which is required for an adverse inference instruction.

"Outside Vendor" Communications with Counsel May be Clawed Back

Yesterday, Judge Linda Lopez issued a decision, Stone Brewing Co., LLC v. Molson Coors Brewing Co., 18-cv-331-BEN-LL, 2019 U.S. Dist. LEXIS 150729 (S.D. Cal. Sept. 4, 2019), denying a request for a reconsideration of the Court's earlier order granting the Defendant's request to claw back privileged attorney client communications and denying the Plaintiff's request for a proper identification of documents listed on the Defendant's privilege log. The Court overruled an objection to the motion for reconsideration as being time barred under a local rule requiring filing within 28 days of the initial ruling, because the Defendant failed to provide the final version of a deposition transcript relevant to Stone's motion.

This ruling focused on the issue of whether or not communications between the Defendant's attorneys and its marketing personnel at Mekanism (concerning legal matters) should be considered attorney-client privilege under the functional equivalent rule. Deposition testimony by a non-lawyer witness for MillerCoors that Mekanism was an "outside vendor" was not enough to warrant reconsideration of the decision. "Here, the Court finds that the record supports a situation where 'too narrow a definition of 'representative of the client' will lead to attorneys not being able to confer confidentially with nonemployees who, due to their relationship to the client, possess the very sort of information that the privilege envisions flowing most freely.' In re Bieter Co., 16 F.3d 937, 938 (8th Cir. 1994)." Id. at *11. Consultants need not work full-time at a party's office in order to be covered by attorney-client privilege.

Stone also argued the provision of the ESI protocol requiring a summary of the content of each document listed on a privilege log, as well as a court order requiring a response to an interrogatory about which privilege log entries pertained to a trademark at issue in the case, requires the Defendant to further distinguish the entries on the log than it already has. Judge Lopez rejected the Plaintiff's contention that a 30(b)(6) deposition witness's inability to answer questions about the content of documents on the log merited a reconsideration of its decision.

Magistrate Judge Rules on Motion for Letter Rogatory

This past week, Magistrate Judge Katharine H. Parker issued a decision, Pearlstein v. Blackberry, Ltd. , 13-CV-07060 (CM)(KHP), 2019 U.S. Dist. LEXIS 148510 (S.D.N.Y. Aug. 29, 2019), granting the Plaintiffs' motion for the issuance of letter rogatory to the United Kingdom under the Hague Convention for the purpose of taking the deposition of a Blackberry executive and for de-designation of documents marked confidential pursuant to a protective order.

Fed. R. Civ. P. 28(b) allows for depositions of third parties to be taken in a foreign country. Judge Parker rejected the Defendants' position that the topics to be covered at the deposition were cumulative or duplicative, but did find that questioning about one Blackberry product, the Playbook, was not proportional to the needs of the case. This product had only a tenuous connection to smartphones which were the focus in a case alleging securities fraud in connection with the release of the Blackberry 10 smartphone. The Court rejected the Defendants' argument that the motion should be denied because UK courts were likely to deny the letters rogatory. "Though UK courts have denied letters rogatory for depositions as too broad and too investigatory, crafting a letter of request in compliance with the UK law is outside of the purview of this Court." Id. at *8.

The Court also denied the Plaintiffs' request to compel the Defendants to provide the deposition witness's business address, because of the provisions of the GDPR. "Defendants have represented that, under the European Union's General Data Protection Regulation, they are unable to disclose his address without his consent, which they have not received." Id. at *11.

The formal request made to the UK courts includes 17 sections:

1. Sender [Judge Parker]

2. Central Authority of The Requested State [Foreign Process Section, Royal Courts of Justice]

3. Person To Whom The Executed Request Is To Be Returned

4. Specification Of The Date By Which The Requesting Authority Requires Receipt Of The Response To The Letter Of Request [about 2 months]

5. Requesting Judicial Authority / Competent Authority / Case Name

6. Names and Addresses of the Parties and Their Counsel

7. Summary of the Claims and Defenses

8. Evidence Sought

9. Identity And Address Of Any Person To Be Examined

10. Questions To Be Put To The Person To Be Examined Or Statement Of The Subject-Matter About Which They Are To Be Examined

11. Documents or Property to Be Inspected

12. Any Requirements That The Evidence Be Given Under Oath And Any Special Form To Be Used

13. Special Methods Or Procedure To Be Followed

14. Request For Notification Of The Time And Place For The Execution Of The Request And Identity And Address Of Any Person To Be Notified

15. Request For Attendance Or Participation Of Judicial Personnel

16. Specification Of Privilege Or Duty To Refuse To Give Evidence Under The Law Of The State Of Origin

17. Fees and Costs