Doug Austin and Tom O'Connor on the Top E-Discovery Cases of 2017

On September 13, 2017, I participated in an ACEDS sponsored webinar hosted by Doug Austin of CloudNine and Tom O'Connor, the veteran electronic discovery expert. It was entitled, "Key eDiscovery Case Law Review for First Half of 2017", and can be viewed at, https://www.ediscovery.co/webcasts/key-ediscovery-case-law-review-for-first-half-2017-aceds/

Doug and Tom discussed more than a dozen key cases, which addressed seven key issues in electronic discovery.

1. The need to state objections with specificity, and the danger of waving the right to object if this is not done.

- In Liguria Foods, Inc. v. Griffith Laboratories, No. 14-3041 (N.D. Iowa Mar. 13, 2017), Judge Bennett held that the use of boilerplate objections by both sides was obstructive, and threaten to sanction them in the future. Tom O'Connor noted that Judge Grimm in his local rules states that boilerplate objections will be regarded as a failure to answer.

2. The right to subpoena data that is stored internationally.

- In In re Search of Content that is Stored on Premises Controlled by Google, No. 16-80263 (N.D. Cal. Apr. 19, 2017), Judge Beeler ruled that Google had to produce all data that is retrievable from the United States in response to subpoena, regardless of its actual location. Tom noted that data called up a screen in the U.S. from a search of databases stored outside the U.S. might be discoverable by itself as search results, but not the full data set itself.

3. The landmark SCOTUS decision in Goodyear v. Haeger which addresses the limits of a court's inherent authority to sanction for discovery misconduct.

- Goodyear v. Haeger, is a decision by the United States Supreme Court which refused to uphold a district court's use of its inherent authority to fine a party $2.7 M from withholding data from the plaintiff. The opinion stated that, "an assessment of an attorney's fees against a party that acts in bad faith . . . must be compensatory, rather than punitive". Tom noted that the discovery of the party's bad faith in production occurred after the case had settled, so it was a really unique circumstance. He said that SCOTUS opinion indicated that the punitive fees could be imposed but there had to be due process, and did not think it would be a great impediment to the use of inherent authority.

4. When data is in a party's practical ability to obtain, but not its actual possession, custody or control.

- Williams v. Angie's List, No. 16-0878 (S.D. Ind. Apr. 10, 2017) the court found that defendant had to produce background data from Salesforce and the data was in its possession, custody and control under F.R.C.P. 34(a). Tom didn't think that judges would think that a party's use of a third party to host data would mean that they didn't have control over the data. If this argument is made, it should be made from the outset of the litigation, otherwise the court would like to consider it waived.

5. Courts playing a role in crafting search terms.

- In Diesel Power Source v. Crazy Carl's Turbos, 14-826 (D. Utah Feb. 23, 2017), the court limited the number of spelling variations on search terms from a party's proposed 72 variations, to just only 3 variations.

6. The possibility that the production of native files may be too burdensome.

- In In re State Farm, No. 15-0903 (Tex. Sup. Ct. May 26, 2017), the Texas Supreme Court held that State Farm should not be required to produce data from its Enterprise Claims System that it converts from a native format on a daily basis. The court saw an enhanced burden that was not proportional to the needs of the case. Tom noted that State Farm never attached a price or an analysis indicating how much the production would cost or how complicated the process would be. He said the judges asked State Farm about whether or not its attorneys had access to the files. The court issued a decision with very specific proportionality guidelines.

7. Is evidence that a party used wiping software sufficient grounds by itself for court sanctions?

- In HCC Holdings v. Flowers, 15-3262 (N.D. Ga. Jan. 30, 2017), Judge Duffey found that where a defendant had used not one, but several programs designed to delete data from a computer, it could not be assumed that trade secrets data was actually stored on the computer where it was not demonstrated that large numbers of documents were actually deleted.

Fourth Amendment Searches of Facebook Accounts

This month the United States Court of Appeals for the 11th Circuit issued a decision which addressed how warrants to search social media accounts may violate the provisions the Fourth Amendment covering government searches and seizures. The defendants in the case were accused of operating a prostitution business. The government issued a warrant that required Microsoft to search the defendants email accounts and turn over any emails which concerned the exchange of sexual services for money. In United States v. Blake, No. 15-13395 (11th Cir. Aug. 21, 2017), the Court decided that this warrant met the 'particularity' requirement of the Fourth Amendment.

The Court raised the possibility that a second warrant issued to Facebook may have violated the Fourth Amendment. It required that Facebook provide the government with all of the data from the defendant's social media account. It faulted the warrant for not specifying that searches be limited to direct messages relevant to the charges brought against the defendants:

"With respect to private instant messages, for example, the warrants could have limited the request to messages sent to or from persons suspected at that time of being prostitutes or customers. And the warrants should have requested data only from the period of time during which Moore was suspected of taking part in the prostitution conspiracy."

Id. at 20-21. In a footnote the court did criticize the Microsoft warrant for not specifying a particular date range, but said that:

". . . the warrant was appropriately limited in scope because it sought only discrete categories of emails that were connected to the alleged crimes. As a result, the lack of a time limitation did not render the warrant unconstitutional."

Id. at 20 n. 7. Despite its criticism of the Facebook warrant, the court did not specifically rule that it had violated the Fourth Amendment because any evidence obtained under it would have been covered by the good faith exception to the exclusionary rule that allows the police (or in this case FBI agents) to rely on a facially valid warrant.

New York Bar Against Waiver of Privilege in Electronic Communications

The New York Civil Practice Law & Rules contain a provision which ensures that privilege is not waived for emails between a client and his or her attorney that are transmitted by an internet service provider.

§ 4548. Privileged communications; electronic communication thereof. No communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication.

NY CPLR § 4548 has also been interpreted by the New York courts to bar waiver when emails are sent by a third party for a client.

In Green v. Beer, (S.D.N.Y. 2010), it was ruled that this section of the CPLR protected emails sent by a son on behalf of his parents to their attorneys, where the mother and father were not proficient in the use of email. Judge Kimba Wood reversed a decision by Magistrate Judge James Francis (who has issued several key decisions bearing on electronic discovery) and ruled that the parents' access to alternate means of communicating with counsel doesn't mean CPLR § 4548 shouldn't apply. The opinion notes that the Greens had a reasonable expectation of confidentiality in the emails the son helped send and states:

"A finding that privilege has not been waived in this case is appropriate as a matter of public policy. Email permits attorneys and their clients to engage in prompt communication, often regarding time-sensitive matters. A client lacking proficiency in Internet technology should not be prevented from enjoying the advantages of email correspondence for fear that the necessary assistance of a third party – here, the Green Plaintiffs’ son – in sending or receiving such correspondence will lead to the forfeiture of the attorney-client privilege."