Here are my thoughts on key e-discovery cases decided in October, including a decision in which the court was highly critical of a party’s “single-minded focus on discovery of ESI,” a couple of cases in which the court applied principles of proportionality to decide whether the producing party should run additional search terms requested by the other side, and a decision holding that an employer had a duty to preserve its officers’ personal emails.

In addition to reviewing these cases, I recommend to anyone looking for more analysis about the proposed new Civil Rule 37(e) to take a look at the public comments submitted by Tom Allman last month. They are available here. Allman was a member of the 2010 E-Discovery Panel at the Duke Conference and has actively participated in the rulemaking process. Allman maintains that the proposed rule should help promote a uniform approach to spoliation and sanctions and should “foreclose the current practice of using inherent sanctioning power as an end-around existing Rule 37(e).” Allman also makes suggestions to address some concerns he has with the current proposed language of the rule and the Committee Notes.


Mastr Adjustable Rate Mortgages Trust 2006-OA2 v. UBS Real Estate Securities Inc., No. 12 Civ. 7322 (S.D.N.Y. Oct. 23, 2013). Magistrate Judge Francis analyzed issues about when the duty to preserve evidence arises, what constitutes an adequate litigation hold, and what degree of culpability warrants spoliation sanctions. Although Magistrate Judge Francis found that the trustee at issue failed to implement a timely litigation hold, he denied the defendant’s request to impose sanctions for spoliation. He denied the request because he found that the trustee did not act in bad faith and no relevant documents were destroyed.

Magistrate Judge Francis’ discussion regarding bad faith is worth reading. It appears that the trustee did not suspend its auto-deletion and document-destruction policies when it implemented its litigation hold. Magistrate Judge Francis noted, however, that each custodian subject to the hold met with a business person and counsel to discuss what to retain and was instructed to preserve relevant emails by gathering and forwarding them to a legal hold folder that was not subject to the auto-delete function. Magistrate Judge Francis also found “the fact that custodians self-selected e-mails for retention [was] not evidence of bad faith in these circumstances.” Counsel monitored compliance with the hold, and “this [was] not a case where potential personal liability of the custodians might create an incentive not to act diligently to preserve information.”

E-discovery costs

Fair Housing Center of Southwest Michigan v. Hunt, No. 09-cv-593 (W.D. Mich. Oct. 21, 2013). After concluding that the plaintiffs were “prevailing parties” in a civil rights action alleging housing discrimination in violation of the Fair Housing Act, the court held that the attorney fee request was unreasonable largely because too much time was spent on e-discovery. In the court’s opinion, the “single-minded focus on discovery of ESI” “transformed what should have been a simple case into a discovery nightmare.” “It appeared to this court on more than one occasion that plaintiffs were treating the case as a litigation workshop on discovery of ESI rather than a lawsuit.”

Over in the Eastern District of Michigan, the court recently approved, on a pilot period basis, the use of a model e-discovery order and Rule 26(f) checklist in appropriate cases. The model order appears designed to help lower e-discovery costs, and it imposes default limitations on the scope of preservation and review. For example, the model order provides that a producing party shall not be required to search for responsive ESI from more than ten custodians, that was created more than five years before the filing of the lawsuit, from sources that are not reasonably accessible without undue burden or cost, or for more than 160 hours, exclusive of time spent on privilege review.


FDIC v. Giannoulias, No. 12 C 1665 (N.D. Ill. Oct. 23, 2013). The court addressed three e-discovery issues:

  1. Whether the producing party had to include additional search terms proposed by the requesting party;
  2. Whether the producing party had to review the documents that resulted from using search terms before producing the documents; and
  3. Whether the producing party had to organize its production to correspond to the requesting party’s document requests.

First, the court applied principles of proportionality to determine whether six additional terms should be added to the parties’ agreed-upon list of 250 search terms. The court ordered that the producing party must use four of the terms because they likely would capture relevant documents and would result in a relatively small number of additional “hits.” The court did not order the use of the other two terms even though the producing party had initially proposed those terms because the likelihood of entirely irrelevant hits appeared high and the number of additional hits was substantial.

Second, the court held that the producing party did not have to review the documents that resulted from the use of the search terms to determine if they were in fact responsive. Although the court acknowledged the general duty to produce only those documents that are responsive, the court found that it seemed likely that the vast majority of the documents generated by the parties’ search terms would be relevant and that the burden to review all of those documents would outweigh any benefit to the requesting party. “False hits are probably inevitable, but we will not require the [producing party] to review thousands of documents to weed out a presumably small subset of irrelevant materials.”

Third, the court held that the producing party did not have to organize its production according to the discovery requests because it would impose a substantial burden on the party and the metadata associated with the documents could be used to sort the documents.

Swanson v. ALZA Corporation, No. 12-4579 (N.D. Cal. Oct. 7, 2013). In another case in which the requesting party sought to compel the producing party to use additional search terms, the requesting party argued that the other side had not complied with its requests for production because the search terms used to identify potentially relevant ESI were inadequate. To support its argument, the requesting party identified specific categories of documents that it believed were missing from the production. After a hearing, the court held that it would not be unduly burdensome for the producing party to perform certain of the eleven proposed Boolean searches. The court held, however, that any benefit of the remaining searches was outweighed by the burden of production.

The proportionality analysis used by the courts in the Giannoulias and Swanson cases to determine whether additional search terms should be ordered seems consistent with how courts are considering the use of technology such as predictive coding (aka computer-assisted review) in the context of proportionality, as discussed here.

Ewald v. Royal Norwegian Embassy, No. 11-cv-2116 (D. Minn. Oct. 8, 2013). Like the court in the Hunt case discussed above, the court commented on the amount discovery, including ESI, taken in in this single-plaintiff employment dispute: “The scale of discovery and diligence of the parties in pursuing information in this case, when viewed in the light of the nature of the dispute, is breathtaking.” “If ever a case implicated the proportionality principles and provisions of the Federal Rules governing discovery, this case does.”

Before the court was the plaintiff’s motion to compel discovery. Among other things, the plaintiff requested the court to order forensic images of laptops, phones, memory cards, and tablets. The court rejected these requests largely because the plaintiff failed to raise these issues at the beginning of the case. The court explained that at the Rule 16 Conference, it directed the parties to identify sources and custodians of ESI, and that the parties subsequently negotiated an agreement regarding the discovery of ESI. Neither the agreement nor the plaintiff’s initial discovery requests raised such things as text messages or voicemails as an issue.

According to the court, “requesting this information so long after the production of tens of thousands of documents and the depositions of nine witnesses is an attempt to amend the [agreement] and revisit all of the ESI issues the Court urged the parties to negotiate and address in the [agreement] under their obligations in drafting and formulating a Rule 26(f) report.” “To go back and engage in discovery with respect to those devices at this stage in the litigation and in light of the expenses and costs the parties have already incurred is simply not feasible. Allowing additional discovery would eviscerate Rule 26’s concept of proportionality.”

Teledyne Instruments, Inc. v. Cairns, No. 12-cv-854 (M.D. Fla. Oct. 25, 2013). This case also involved a request for forensic imaging among other issues. After the defendant produced more than 13,800 files in response to the plaintiff’s document requests and two sets of load files, the plaintiff’s expert analyzed this information and found various discrepancies among the created, last accessed, and last modified dates of the files. As a result, the plaintiff argued that it needed to access and image forensically the 18 electronic devices that stored these files because they reflect unreliable and/or erroneous information about the files.

After a lengthy discussion about the differences between “application metadata” and “system metadata,” the court concluded that the discrepancies among the files’ metadata was “not necessarily cause for concern or suspicion” and that the plaintiff had failed to show why these discrepancies were important to the case. The court denied the plaintiff’s requests based on proportionality and the fact the plaintiff sought to expand discovery beyond the parameters agreed to by the parties. “Indeed, it is beyond what [the plaintiff] sought even at the beginning of the case, when the parties were negotiating the scope and manner of ESI discovery. (Docs. 26-1, 41). [The plaintiff] has not shown good reason why it should not be held to its agreement. Nor has [the plaintiff] shown that the requested discovery is substantially likely to uncover relevant evidence. Finally, despite [the plaintiff]’s offer to pay certain discovery related costs, allowing the requested discovery would unfairly prejudice Defendants.”

Possession, custody or control

Puerto Rico Tel. Co. v. San Juan Cable LLC, No. 11-2135 (D.P.R. Oct. 7, 2013). The court held that the defendant had a duty to preserve relevant emails that came from the personal email accounts of its former officers because it “presumably knew” that the officers used their personal email accounts to engage in company business. Because some of these emails were “lost” and could not be obtained through other sources, the plaintiff requested sanctions for spoliation.

The court denied the plaintiff’s request without prejudice because there was no evidence of bad faith or that the lost emails would help prove the plaintiff’s claims. The court stated, however, that “[f]orensic analysis of these three former employees’ personal email accounts and computers may be appropriate to determine whether critical emails have been deleted.” The Delaware Employment Blog and Bow Tie Law’s Blog both do a good job discussing how the court’s reasoning in this decision creates challenges for businesses in a BYOD environment.