2017 eDiscovery Caselaw Update

1. 2017 eDiscovery Caselaw Update • May 11, 2017

2. Agenda • Are Boilerplate discovery responses finally out of fashion? • Forrest Gump can hand out treats from a box on a park bench. You can’t • Sanctions, sanctions and more sanctions . . . except for those last 2 • The Supremes weigh in on “inherent authority” to sanction

3. Presenters • Michael Simon | Attorney and Consultant | Seventh Samurai • Timothy Lohse | Partner | Patent Litigation | DLA Piper

4. >>> Boilerplate Discovery Responses Might Finally Be Passe

5. Boilerplate • The hallmark of a boilerplate objection is its generality. The word “boilerplate” refers to “trite, hackneyed writing” . . . • it merely states the legal grounds for the objection without specifying how (1) the request is deficient and (2) the harm to the objecting party • Matthew Jarvey “BOILERPLATE DISCOVERY OBJECTIONS: HOW THEY ARE USED, WHY THEY ARE WRONG, AND WHAT WE CAN DO ABOUT THEM” 61 Drake L.J. 913 (2013)

6. “If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.” • Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996)

7. Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. Oct. 15, 2008) • “It would be difficult to dispute the notion that the very act of making such boilerplate objections is prima facie evidence of a Rule 26(g) violation • . . . because if the lawyer had paused, made a reasonable inquiry, and discovered facts that demonstrated the burdensomeness or excessive cost of the discovery request, he or she should have disclosed them in the objection, as both Rule 33 and 34 responses must state objections with particularity, on pain of waiver.”

8. 2014 Report of the Judicial Conference Committee on the 2015 amendments • “the use of broad, boilerplate objections that provide little information about the true reason a party is objecting; responses that state various objections, produce some information, and do not indicate whether anything else has been withheld from discovery on the basis of the objections.”

9. Fischer v. Forrest, Case No. 1:2014 cv 01304 (S.D.N.Y. Feb. 28, 2017) • “[i]t is time for all counsel to learn the now-current Rules and update their 'form' files. From now on in cases before this Court, any discovery response that does not comply with Rule 34's requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).”

10. >>> Surprise Bonus Lesson!

12. Liguria Foods, Inc. v. Griffith Laboratories, Inc., Case No. C14-3041 (N.D. Ia. March 13, 2017) • "NO MORE WARNINGS. IN THE FUTURE, USING 'BOILERPLATE' OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS."

13. Liguria Foods, Inc. v. Griffith Laboratories, Inc., Case No. C14-3041 (N.D. Ia. March 13, 2017) • "NO MORE WARNINGS. IN THE FUTURE, USING 'BOILERPLATE' OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS."

14. >>> How NOT to Protect Client Confidentiality

16. [Plaintiff] has conceded that its actions were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it.

17. [Plaintiff] has conceded that its actions were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it. • It is hard to image an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web.

18. Harleysville Ins. Co. v. Holding Funeral Home, Inc., Case No. 1:15cv00057 • (W.D. Va. Feb. 9, 2017)

19. We will try to make this simple . . .

20. Insurance company needs to get big video file to investigator

21. Step 1: Insurance company puts video in unsecured Box folder

22. Step 2: Company re-uses Box to get confidential case file to attorneys

23. Step 3: Attorneys download copy of case file

24. Step 4: Plaintiff’s attorneys get the email from NICB with the Box link in subpoena response

25. Step 5: Plaintiff’s attorneys use that link to download the confidential case file

26. Step 6: All Hell breaks loose

28. Insurer claims privilege, seeks return of file • Attorney-client privilege = state law ≠ sufficient precautions to protect privilege • Work product doctrine = FRE 502(b) ≠ “inadvertent” so not applicable • Strongly implies that even the FRE 502(d) “Get of Jail Free Card” wouldn’t work!

29. Easy question • So, who got sanctioned?

30. >>> Surprise Bonus Lesson!

32. Sanctions entered against DEFENDANTS • Lawyers have an ethical duty regarding potentially privileged info from other side • Confidentiality notice on email = clear sign • Defense counsel had duty to inform other side • Must sequester it • Then await court ruling • = What plaintiff’s attorneys did with inadvertently disclosed defense info

33. Sanctions entered against DEFENDANTS • Defendants sought bar ethics opinion • In the meantime, read file • Sent to other defendants • And law enforcement • AND then produced it in discovery to plaintiffs! • = Not disqualified, but sanctioned for costs

35. >>> Sanctions are Easing • But You Still Might Get Slammed For Doing Stuff that Looks Bad

36. The new 37(e) = RIP for sanctions due to • innocent mistakes • But what about seemingly not-so-innocent mistakes?

37. HCC Ins. Holdings, Inc. v. Flowers, • Case No. 1:15-cv-3262 (N.D. Ga. Jan. 30, 2017) • Moved 8,000+ emails to a shared drive • Deleted 1,000+ emails (plenty of room) • Copied 500 key client docs (not normally her job) • Deleted the docs a week later; • Continued to use her computer after resigning • Tried to keep her computer over the weekend • Ran computer wiping, defrag and undelete apps on laptop after the start of the litigation • Ran them again day after the court ordered her to turn over computer for forensic examination • Alabama Aircraft Indus., Inc. v. Boeing Co., • No. 2:11-cv-03577 (N.D. Ala. Mar. 9, 2017) • Contracting team deleted all ESI from the contracting team CFO, the second-highest member of the team • No archives of the team CFO’s files were kept • 2 CDs of ESI from a key analyst were lost by inhouse attorney • 3 other employees of the defendant who were more peripherally involved did not receive the litigation hold notice or deleted emails anyway

38. HCC Ins. Holdings, Inc. v. Flowers, • Case No. 1:15-cv-3262 (N.D. Ga. Jan. 30, 2017) • Moved 8,000+ emails to a shared drive • Deleted 1,000+ emails (plenty of room) • Copied 500 key client docs (not normally her job) • Deleted the docs a week later; • Continued to use her computer after resigning • Tried to keep her computer over the weekend • Ran computer wiping, defrag and undelete apps on laptop after the start of the litigation • Ran them again day after the court ordered her to turn over computer for forensic examination • Alabama Aircraft Indus., Inc. v. Boeing Co., • No. 2:11-cv-03577 (N.D. Ala. Mar. 9, 2017) • Contracting team deleted all ESI from the contracting team CFO, the second-highest member of the team • No archives of the team CFO’s files were kept • 2 CDs of ESI from a key analyst were lost by inhouse attorney • 3 other employees of the defendant who were more peripherally involved did not receive the litigation hold notice or deleted emails anyway

39. HCC Ins. Holdings, Inc. v. Flowers, • Case No. 1:15-cv-3262 (N.D. Ga. Jan. 30, 2017) • Moved 8,000+ emails to a shared drive • Deleted 1,000+ emails (plenty of room) • Copied 500 key client docs (not normally her job) • Deleted the docs a week later; • Continued to use her computer after resigning • Tried to keep her computer over the weekend • Ran computer wiping, defrag and undelete apps on laptop after the start of the litigation • Ran them again day after the court ordered her to turn over computer for forensic examination • Alabama Aircraft Indus., Inc. v. Boeing Co., • No. 2:11-cv-03577 (N.D. Ala. Mar. 9, 2017) • Contracting team deleted all ESI from the contracting team CFO, the second-highest member of the team • No archives of the team CFO’s files were kept • 2 CDs of ESI from a key analyst were lost by inhouse attorney • 3 other employees of the defendant who were more peripherally involved did not receive the litigation hold notice or deleted emails anyway

40. >>> Surprise Bonus Lesson!

42. >>> The Supremes Weigh In: “Inherent Authority” = Here to Stay! • (with some limitations on causal connection . . . )

43. Goodyear Tire & Rubber Co. v. Haeger et al., No. 15–1406 (April 18, 2017)

45. Undisclosed ESI – until AFTER the case settled • “Mr. Taylor [a Goodyear engineer] • located “electronic post-production • W84 high speed test data on the • G159 Tire.” • “When he discovered that data, Mr. Taylor also “discovered L04 heat rise test results for the G159 Tire in the same electronic database.” • The high speed test was produced late • - the heat rise test was NEVER produced • Court entered broad sanctions under “inherent authority” = nearly all case costs

46. 37(e) question: do the courts still have “inherent authority to sanction discovery misconduct? • Comments to new Rule 37(e): • New Rule 37(e) . . . forecloses reliance on inherent authority or state law to determine when certain measures should be used. • See also, Fiteq Inc. v. Venture Corp., No. 13-cv-01946 (N.D. Cal. Apr. 28, 2016) and Brown Jordan Int’l, Inc. v. Carmicle, No. 14-cv-60629 (S.D. Fla. Mar. 2, 2016)

47. 37(e) question: do the courts still have “inherent authority to sanction discovery misconduct? • Comments to new Rule 37(e): • New Rule 37(e) . . . forecloses reliance on inherent authority or state law to determine when certain measures should be used. • See also, Fiteq Inc. v. Venture Corp., No. 13-cv-01946 (N.D. Cal. Apr. 28, 2016) and Brown Jordan Int’l, Inc. v. Carmicle, No. 14-cv-60629 (S.D. Fla. Mar. 2, 2016) • Chief Magistrate Judge James Francis in CAT3 LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (S.D.N.Y. Jan. 12, 2016): • If, notwithstanding this reasoning, Rule 37(e) were construed not to apply to the facts here, I could nevertheless exercise inherent authority to remedy spoliation under the circumstances presented. • See also, Internmatch Inc. v. Nxtbgthing LLC, No.14-cv-05438 (N.D. Cal. Feb. 8, 2016)

48. Approved of inherent authority • But sanctions were limited to ameliorating the specific harm done by the bad act • The award was simply too broad under that standard

49. 2017 eDiscovery Caselaw Update • Thank you for attending! • May 11, 2017

50. >>> FRCP 34 Set the Production Format Dance Steps in 2006 • (so isn’t well past time that everybody has learned them???)