New Mexico Court of Appeals: Defendant Texter Has Knowledge of Texts and Cannot Be Prejudiced

Last month, Judge Jennifer L. Attrep, in State v. Howell, No. A-1-CA-34766, 2018 N.M. App. Unpub. LEXIS 298 (N.M. Ct. App. Aug. 16, 2018) rejected an appeal by the Defendant based in part on the late disclosure of evidence and inadequately redacted evidence.

The Defendant was convicted for the theft of an iPhone which belonged to Renee Groves. Screen shots of text messages between the Defendant and Groves relevant to the theft were admitted at the trial. The Defendant admitted that she had the iPhone in the texts. The Defendant's objection was overruled because the texts were referenced in the criminal complaint and disclosed at a preliminary hearing. On appeal the Defendant had the burden of proving that the State intentionally deprived the Defendant of evidence; that the evidence was material; that the Defendant was prejudiced; and that the Court did not cure the failure to disclose the evidence. The Court found the Defendant failed to show how earlier disclosure of the texts would have changed the outcome of the trial. The opinion also notes that the Defendant only states that having the texts earlier may have caused it to change its strategy at trial. Judge Attrep concluded that, ". . . even if trial counsel was not aware of the text messages, Defendant must have had knowledge of them since she was one of the participants in the conversation. This cuts against any claim of prejudice." Id. at * 13.

The Defendant also argued that the Court committed plain error in admitting text messages that were not fully redacted to hide a reference to her being on probation. Judge Attrep ruled that there was no plain error resulting from the poorly redacted text messages that would lead the validity of the verdict to be questioned. "Even if we assume the jury read through the redaction, the probation references were vague and indirect. And there is no indication that the State ever mentioned Defendant's probationary status at trial." Id. at *16.

D.D.C.: Low Precision Rate Justifies Extension of Discovery Deadline

Today, Judge Colleen Kollar-Kotelly issued a decision, In re Domestic Airline Travel Antitrust Litig., MDL No. 2656, No. 15-1404 (CKK), 2018 U.S. Dist. LEXIS 155775 (D.D.C. Sept. 13, 2018), granting the Plaintiffs' Motion for an Extension of Fact Discovery Deadlines Pursuant to FRCP 16(b)(4). The Plaintiffs in this suit alleged that the Defendants conspired to restrain trade in the sale of air passenger seats.

The Plaintiffs argued that one of the Defendants, United, used flawed TAR technology which resulted in only 17% of its production of 3.5 million documents being responsive. A scheduling order may only be modified for good cause, and the moving party must show that it was diligent in attempting to perform discovery pursuant to the deadlines of the order.

The Plaintiffs loaded the production into their review platform as soon as it was received and engaged a staff of 70 attorneys to review the documents. Despite the fact that the Defendants questioned whether or not the Plaintiffs had actually engaged so many attorneys for their review, the Court did not require the submission of the names of the attorneys or their billing reports. The Plaintiffs rejected the contention made by the Defendants that a review rate of 3 documents per minute was a reasonable pace. Judge Kollar-Kotelly did not find the fact that United had 180 contract attorneys assist with the production of the documents pertinent to the issue of whether or not the Plaintiffs had to deal with unanticipated circumstances.

The TAR protocol entered into by the parties set a minimum 75% estimated recall rate for United's production and required it to attempt to achieve a higher rate, "if that rate may be obtained with a reasonable level of precision through reasonable additional training effort, taking into account the concept of proportionality and the deadline for substantial completion of document production." Id. *22-23.

United found 85% recall and 58% precision in its control set, but the Plaintiffs' analysis of a validation sample indicated 97.4% recall and only 16.7% precision. United ultimately conceded that the Plaintiffs' estimate was correct. The Plaintiffs said their own TAR tool could not be trained to remove non-responsive documents from the United production.

The Court concluded that the Plaintiffs could not have anticipated the precision level of the United production. It also ruled that the delay in filing the motion until more than three months after the production was diligent given the fact that the parties continued to discuss the reasons for the recall and precision rates.

California Appellate Decision: Trial Court Can Reject Expert Request for ESI in Quickbooks Format

Last month, the Court of Appeal of California issued a decision, Daus v. Howser, No. C082786, 2018 Cal. App. Unpub. LEXIS 5398 (Cal. Ct. App. Aug. 8, 2018) which denied a discovery motion seeking the production of previously produced evidence in a different format. Judge Elena Duarte found that the Plaintiff could not show prejudice because it merely argued that the additional discovery would merely facilitate the presentation of evidence to the jury.

The Plaintiff sought the production of documents in the Quickbooks format which had been produced as PDFs. The opinion cites Code Civ. Proc., § 2031.280 which states that party is not required to produce ESI in more than one form. It was found that the trial court did not abuse its discretion in declining to find an exception to this rule. It was permitted to reject the uncontradicted testimony of the Plaintiff's expert that, "it was necessary to have the information in Quickbooks and that the PDF files were insufficient." Id. at *39.