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Think twice before hitting “record”

It is simple enough: press record and you can easily share your internal video conference call, re-watch it later, or forget it and move on. You move on until you receive a discovery request or a subpoena for information if the company is sued. Now, your internal video call is discoverable and may be seen by those outside your intended viewership.…

Do you know what your employees are posting while they’re at work?

Our colleagues at Employer Law Report posted about an interesting case in which FedEx was sued because one of its employees used the company’s internet connection to post allegedly defamatory comments. The Court of Appeals of Indiana affirmed the trial court’s decision dismissing the plaintiffs’ claims based on Section 230 of the Communications Decency Act.

In short, the court found that FedEx and another employer (500 Festival) that was sued were providers of an “interactive computer” service, that the claims sought to treat the defendants as a “publisher” or “speaker” of the comments, and the defendants did not develop or create the comments. The case also raised an e-discovery issue that highlights the importance of having updated legal hold procedures in place in addition to appropriate social media and computer usage policies. The plaintiffs argued that FedEx spoliated evidence because it failed to preserve the logs for its proxy server which filtered Internet traffic for thousands of users and did not preserve electronic records until a year after being added as a defendant.

The court found that there was no spoliation because FedEx had properly responded to non-party discovery served on it before being added as a defendant (including disclosing its document retention policy for the logs) and the plaintiffs did not complain about FedEx’s responses, including its overbreadth objections. The plaintiffs also argued that 500 Festival spoliated evidence because the identify of its employee was known and 500 Festival failed to preserve the information on the employee’s work computer. …

Key e-discovery cases in February

In February, there again was a number of interesting spoliation decisions, including an order permitting the defendants to assert a counterclaim for spoliation based on the plaintiffs’ alleged failure to preserve relevant information, another sanctions order in multi-district products liability litigation in which the court looked closely at the breadth of litigation hold notices issued by the defendant in previous litigation, and a sanctions order finding culpable conduct based on the defendant city’s failure to have its IT policies comply with state public records laws. There also were key e-discovery decisions addressing undue burden, taxable costs, format of production, and predictive coding.


Zecotek Imaging Systems PTE Ltd. v. Sain-Gobain Ceramics & Plastics, Inc., No. 12-CV-1533 (N.D. Ohio Feb. 28, 2014). The court permitted the defendants to assert a counterclaim for spoliation under Ohio law based on the plaintiffs’ alleged failure to preserve documents and information relating to the plaintiffs’ patent infringement claims. According to the defendants, the plaintiffs failed to preserve and/or destroyed emails and other documents relating to the inventorship and ownership of the patent in suit and infringement of the patent, and these actions deprived the defendants of relevant and potentially exculpatory evidence. The court noted that while Ohio law imposes a duty on a plaintiff to preserve evidence, authority is mixed whether a plaintiff’s failure to comply with this duty can give rise to a cause of action against the plaintiff. The court concluded that under Ohio law a defendant is not per se prohibited …

Key e-discovery cases in January

The new year is off to a fast start with a number of decisions addressing key e-discovery issues, including a decision from the Seventh Circuit regarding the Dec. 9, 2013 sanctions order issued by the district court in the In Re Pradaxa multi-district products liability litigation and a spoliation finding against the defendants in the In Re Actos multi-district products liability litigation. There also were decisions regarding the violation of the protective order in the long-running Apple v. Samsung “big-ticket patent litigation,” the recovery of e-discovery costs, undue burden and the form of production.


In Re Actos (Pioglitazone) Products Liability Litigation, No. 11-md-2299 (W.D. La. Jan. 27, 2014). The court sanctioned the defendants for spoliation after 46 custodial files and the ESI in those files were lost, destroyed or otherwise rendered inaccessible. The deleted files belonged to high-ranking officials heavily involved in the development, sales, marketing and promotion of the drug Actos® as well as sales representatives whose day-to-day work involved marketing and distributing Actos in the marketplace. The defendants argued that they did not have a duty to preserve these files because the duty to preserve documents relating to “bladder cancer” did not arise until the summer of 2011. The court rejected that argument and pointed to a “sweeping” litigation hold that the defendants issued back in 2002 in connection with other Actos-related personal injury claims which broadly covered “any and all documents and electronic data” relating to Actos. In ruling on the plaintiffs’ motion for sanctions, …

Three additions to your new year’s resolutions from Pradaxa

Many people use the start of a new year to resolve to improve their diet, get more sleep and exercise more. Professional resolutions for attorneys often focus on improving efficiency, expanding networks and areas of expertise or simply submitting their time entries properly. A decision late last year in the In re Pradaxa Products Liability Litigation suggests some potential professional resolutions for litigators and in-house litigation counsel to consider when litigation arises or is reasonably anticipated.1

Pradaxa is a multidistrict products liability action pending in the Southern District of Illinois. The case involves, among other things, the safety of a blood thinner and a pharmaceutical manufacturer’s alleged representations about the efficacy of that product. This complex case involved extensive discovery involving millions of documents and hundreds of witnesses and, not surprisingly, discovery issues and disputes arose that were not particularly unique.

In a detailed opinion reviewing the history of the discovery disputes brought to its attention by the plaintiff’s steering committee, the district court commented that it had been “exceedingly patient and, initially, was willing to give the defendants the benefit of the doubt” on the discovery issues. For example, this was not the first opinion in this action addressing defendants’ discovery responses and document preservation efforts.2 Indeed, the court had “warned the defendants in the past, when such conduct continues, there is a cumulative effect” that the court not only can but also should take into account.…

Top 10 e-discovery developments and trends in 2013: Part 2

Following is Part 2 of my third annual list of the top 10 e-discovery developments and trends from the past year. Read Part 1.

6. “It is malpractice to not seek a 502(d) order from the court before you seek documents.” U.S. Magistrate Judge Andrew Peck began last year at Legal Tech providing his thoughts on the importance of orders entered pursuant to Federal Rule of Evidence 502(d). He said: “I’ll give you a fairly straight takeaway on 502(d). In my opinion it is malpractice to not seek a 502(d) order from the court before you seek documents. That doesn’t mean you shouldn’t carefully review your material for privileged documents before production, but why not have that insurance policy?” Other judges echoed these sentiments as the year progressed.

As if hearing federal judges say malpractice and Rule 502(d) orders in the same sentence were not enough to convince federal court litigants to use them, cases throughout the year further highlighted the importance of securing these orders. Magistrate Judge Waxse enforced a Rule 502(d) order over the objection of the party that originally requested it in Rajala v. McGuire Woods, LLP, 08-2638 (D. Kan. Jan. 3, 2013). Earlier in the case, the defendant moved for a protective order that contained a clawback provision pursuant to Rule 502(d). Magistrate Judge Waxse entered the order which included language stating that “[t]he inadvertent disclosure or production of any information or document that is subject to an objection on the basis of attorney-client …

Top 10 e-discovery developments and trends in 2013: Part 1

Here is my third annual list of the top 10 e-discovery developments and trends from the past year.

1. The growth of Bring Your Own Device (BYOD) policies and work-related text messaging is creating litigation hold challenges. A Cisco survey found that 89% of companies are currently enabling employees to use their own electronic devices for work. Gartner predicts that by 2017 a half of all employers will require employees to provide their own devices. The growing prevalence and convenience of personal devices in the workplace is leading more employees to use text messaging for work-related purposes.

With these trends, it is no wonder that there were a number of decisions last year addressing whether an employer must produce ESI (mainly text messages) from its employees’ devices (mainly cell/smart phones). One of the key issues in these cases is whether the employer has “possession, custody, or control” over the devices. To decide this issue, courts have looked at whether the employer provided the devices, whether the employees used the devices for work-related purposes, and whether the employer otherwise had any legal right to obtain ESI from the devices on demand. Other issues that have been raised are the privacy rights of the employees and the employer’s obligations if its employees refuse to turn over their devices during discovery.

In ordering the production of business-related text messages on employees’ cell/smart phones, a court rejected the argument that the failure to preserve text messages should not be sanctioned because they are …

Forensic computer examination is where the rubber hits the (off) road

Forensic computer examinations can be expensive and therefore may prompt the question during litigation – are they worth it? A recent decision from the Southern District of Ohio illustrates why the answer is “yes” in many trade secret cases. In H&H Industries, Inc. v. Miller, the court relied heavily on the results of the forensic examination of the defendant’s computers to enter a preliminary injunction that prohibited the defendant, the plaintiff’s former employee, not only from divulging or using the plaintiff’s trade secrets but also from working for his new employer.

The plaintiff, H&H Industries, retreads and repairs off-the-road (“OTR”) tires and sells used OTR tires. The defendant, Erik Miller, began working for H&H in 2006, and since 2007 had worked as a salesperson of OTR tires. Miller had access to H&H’s confidential information, including pricing information, and, as such, H&H required him to sign a confidentiality agreement. On July 26, 2013, Miller notified H&H that he was leaving the company to join one of H&H’s direct competitors, Polar Rubber Products.…

Key e-discovery cases in December

The end of the year brought another decision that impacts Bring Your Own Device (BYOD) policies as well as another Court of Appeals decision addressing the recoverability of e-discovery costs under 28 U.S.C. § 1920(4), which permits a court to award “the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” In addition to these decisions, there were key cases in December involving document preservation letters, search terms and clawback provisions.

Bring your own device (BYOD)

In Re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, MDL No. 2385 (S.D. Ill. Dec. 9, 2013). The court fined the defendants $931,500 for various e-discovery failures and ordered them to produce additional documents and ESI, including business-related text messages on their employees’ cell/smart phones. “The defendants raised the issue that some employees use their personal cell phones while on business and utilize the texting feature of those phones for business purposes yet balk at the request of litigation lawyers to examine these personal phones.” The court rejected that concern and made clear that “[t]he litigation hold and the requirement to produce relevant text messages, without question, applies to that space on employees’ cell phones dedicated to the business which is relevant to this litigation.” The court further stated that employees refusing to provide their phones to the defendant-employer would be subject to a show cause order to appear personally before the court to explain why they should not be held in contempt.…

Key e-discovery cases in November

Last month, Magistrate Judge David J. Waxse decided an issue that we likely will see more of in the age of big data. He rejected a defendant’s undue burden argument even though even though the “data warehouses” at issue contained over 100 terabytes of data and the production would take several months to develop a process to extract and pull the data in the manner requested by the plaintiffs. In addition to that case, there were key cases in November involving BYOD issues, cooperation, the form of production, and spoliation.

Bring your own device (BYOD)

Ewald v. Royal Norwegian Embassy, No. 11-cv-2116 (D. Minn. Nov. 20, 2013). In my summary of key October cases, I discussed how the magistrate judge in this case denied the plaintiff’s motion to compel discovery, including a request for forensic images of certain laptops, phones, memory cards and tablets. The district court judge largely affirmed the magistrate judge’s order but reversed the order as it related to the discovery of text messages and voice messages contained on two work-provided mobile phones. The court held that the plaintiff was entitled to receive responsive text messages and voice messages contained on the mobile phone the defendant-employer provided to her and another employee. Accordingly, the court ordered the parties to meet and confer and agree on a protocol to conduct a search for responsive text messages and voice messages contained on their work-provided mobile phones used between Nov. 1, 2008 and Nov. 1, 2011. Interestingly, the …

When is “discovery about discovery” permitted?

A court in the Southern District of Ohio recently ordered the defendants in a wrongful death case to answer interrogatories asking them to explain “what procedures or methods were used to search for responsive electronically stored information, or ESI,” and “what efforts they made to comply with plaintiffs’ previous discovery requests.” Ruiz-Bueno v. Scott, No. 12-cv-0809 (S.D. Ohio Nov. 15, 2013). The court ordered this “discovery about discovery” because the plaintiffs’ concern about the volume of ESI produced appeared to be reasonably grounded and the defendants “were less than forthcoming with information needed to make further discussion of the issue a collaborative rather than contrarian process.”

The court stressed the importance of engaging in a collaborative discovery process either as part of the Rule 26(f) planning process, or as part of the attempted resolution of an ESI dispute: “In an ideal world (a situation which apparently does not exist here), these types of disputes would never be presented to the Court because counsel would have recognized, early in the case, the potential for disagreements about proper search protocols, and would have actively sought to avoid such disagreements through collaboration.” According to the court, the concept of collaboration appears in Rule 26(f) and is “completely consistent” with a lawyer’s duty to represent a client zealously.…

Key e-discovery cases in October

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.…

Key e-discovery cases in September

Here are my thoughts on key e-discovery cases decided in September, including a decision showing how a company can defensibly delete data that it no longer needs, the recent case “trend” of courts requiring the disclosure of the sources and search terms used to find discoverable ESI, and a couple of cases addressing the issue of “possession, custody and control,” one involving a parent-subsidiary relationship and the other involving the personal computers and electronic devices of former and current employees.


In re Pradaxa (Dabigatran Etexilate) Product Liability Litigation, MDL No. 2385 (S.D. Ill. Sept. 25, 2013). As discussed in more detail here, the trial court denied the plaintiffs’ motion for spoliation of the emails and documents held by the defendant’s former vice president of marketing because the court found that the defendant properly destroyed the emails and documents pursuant to its document retention policies.…

Defensible deletion: No spoliation where defendant destroyed emails and documents pursuant to its records retention policies

When I present on e-discovery, I often use EDRM’s Electronic Discovery Reference Model to explain how decisions made about the creation, storage and deletion of electronically stored information (ESI) can affect how e-discovery is conducted in a lawsuit. The EDRM model illustrates how a company’s records and information management policies can impact the volume of ESI that may be relevant in a case, and how this volume can impact the overall cost of e-discovery.

Records retention policies that are carefully thought out and followed by a company can lower the volume of ESI that needs to be preserved, collected and reviewed during litigation, and also can reduce the risk of keeping records that the company no longer needs and carry inherent risks, such as documents with personally identifiable information. If a company is not making decisions about records retention at the organizational level, then it is leaving it up to individual employees to make ad hoc decisions about what is kept and deleted, and is likely increasing its long-term legal risks and costs.

Defensible deletion

An essential part of an effective records retention policy is the defensible deletion of data. Defensible deletion refers to the process of disposing of information that is no longer needed for business or legal reasons within the framework of an overall information governance strategy.…

Key e-discovery cases in August

In addition to the posting of the proposed discovery amendments to the Federal Rules of Civil Procedure for public comment, August was packed with a number of interesting e-discovery decisions. Here are my thoughts on key e-discovery cases decided last month, including another spoliation blockbuster from Judge Shira Scheindlin and rulings on e-discovery costs, search terms, proportionality and privacy.


Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (S.D.N.Y. Aug. 15, 2013). Judge Scheindlin considered the “appropriate penalty for a party that — with full knowledge of the likelihood of litigation — intentionally and permanently destroyed the email files of several key players.” Based on Judge Scheindlin’s analysis of the facts, she reversed the magistrate judge’s order declining to award sanctions and instead ordered that an adverse jury instruction be given at trial.

The most notable part of the decision was that it was issued on the same day the public comment period opened for the proposed discovery amendments and Judge Scheindlin included a footnote openly disagreeing with the proposed changes to Rule 37(e). She stated: “I do not agree that the burden to prove prejudice from missing evidence lost as a result of willful or intentional misconduct should fall on the innocent party. Furthermore, imposing sanctions only where evidence is destroyed willfully or in bad faith creates perverse incentives and encourages sloppy behavior. Under the proposed rule, parties who destroy evidence cannot be sanctioned (although they can be subject to ‘remedial curative measures’) even if they were …

Subpoenas seeking identifying information and login data associated with email addresses did not violate First Amendment or privacy rights

A federal court in California has held that subpoenas served on Google and Yahoo! seeking the subscriber and usage information associated with 68 email addresses did not infringe on the subscribers’ First Amendment rights or their right to privacy. Chevron Corp v. Donziger, No. 12-mc-80237 (N.D. Cal. Aug. 22, 2013). The subpoenas also did not violate the Stored Communications Act (SCA). According to the court, the subscribers “vastly overestimate[d] the amount of legal protection accorded to the subscriber and usage information associated with their email addresses.” Chevron, slip op. at 32.

The court reasoned that:

Although the [subscribers] may believe that using their email addresses will protect their identities, that belief is simply not reflected by the reality of the world we live in. Email addresses are labels we voluntarily present to the outside world, through which we allow the world to contact us, and in that way identify us.

Id. at 14.

The court’s decision is a reminder of how much information is being collected and stored electronically about a subscriber each time that person establishes and logs into an internet account — whether that account is webmail, a social media site or a customer profile — and how that information may become discoverable and accessed years later during litigation. It also shows how valuable metadata can be not only to internet marketers and service providers but also to litigants.…

Sanctions for spoliation of evidence

This article was published originally at The article is the final installment of a six-part series focusing on evidence spoliation. Read more here, here and here.

Spoliation of evidence occurs when an individual or entity violates its duty to preserve relevant evidence. A finding of spoliation will often result in the imposition of sanctions and can significantly impact a litigation. Understanding how courts determine the appropriate spoliation sanction to impose is essential when this issue arises.

Courts have two sources of authority for sanctioning spoliation of evidence. Under the rules of civil procedure, courts have broad discretion to impose a variety of sanctions against a party that fails to produce evidence in violation of the civil rules. The primary limitation on this authority is that the discovery rules apply only to acts of spoliation that occur during the pendency of a lawsuit or following a court order. Courts also rely upon their inherent power to control the administration of justice to sanction pre-litigation spoliation. This authority allows courts to preserve their independence and integrity, since the destruction of evidence inhibits a court’s ability to hear evidence and accurately determine the facts.…

Court holds that employer did not have “possession, custody or control” of text messages sent or received on its employees’ personal cell phones

In an employment race discrimination case, a federal court recently held that the defendant-employer did not have “possession, custody, or control” over text messages sent or received by its employees on their personal cell phones. The court denied the plaintiff’s motion to compel the production of these text messages because there was no evidence that:

  • the employer issued the cell phones to the employees;
  • the employees used the cell phones for any work-related purpose; or
  • the employer otherwise had any legal right to obtain employee text messages on demand.

Cotton v. Costco Wholesale Corp., Case No. 12-2731, slip op. at 11 (D. Kan. July 24, 2013).

Plaintiff sought text messages from his managers

The plaintiff is an African-American who was hired as a loss prevention associate at Costco in 2010. He claims that since his hiring Costco’s employees, supervisors and managers at the warehouse that he works at have engaged in discriminatory, harassing and retaliatory conduct against him. Among other things, he alleges that certain warehouse managers have made it difficult for him to perform his job, treated him like he is the “ghost” in the room during management meetings, made racially derogatory comments about him and negative remarks about his clothing, and removed him from his loss control position and had him boxing groceries and retrieving shopping carts from the parking lot instead.…

Court denies employer’s access to social media posts in FLSA collective action and sends warning: If you want access to social media, come with both barrels loaded … leave the water gun at home

A federal court has denied a defendant-employer’s request that plaintiffs sift through and turn over all their social media posts made during their work hours in an FLSA collective action in which the plaintiffs claim their employer failed to give them meal breaks. How did that happen? I thought you’d never ask.

By way of background, Jewell v. Aaron’s Inc., is a nationwide,1,700+ FLSA collective action pending in the Northern District of Georgia. In the suit (Complaint accessible here), the class plaintiffs (current and former employees of Aaron’s) claim they were not paid for their 30-minute meal periods. As you might imagine, with that many plaintiffs discovery has been difficult. So with that, the parties got creative. They were able to work together to narrow the issues and determined that of the 1,700+ class members, discovery would only be served and responded to by 87 of the opt-in plaintiffs (the “Discovery Plaintiffs”). I won’t go into all the details about that discovery (you may read the Defendant’s Memorandum in Support of Motion for Court Approval of Discovery Request to a Small Number of Randomly-Selected Opt-In Plaintiffs here), because I want to focus on the social media portion of the discovery dispute.

Specifically, in one request for production, Aaron’s asked the Discovery Plaintiffs to produce:

“All documents, statements, or any activity available that you posted on any internet Web site or Web page, including, but not limited to Facebook, MySpace, LinkedIn, Twitter, or a blog from 2009 to the …

Out of sight, out of mind

This article was published originally at The article is the fifth in a six-part series focusing on evidence spoliation. Read more here and here. Technology Law Source will notify readers when publishes the final article in this series.

We previously addressed the scope of the duty to preserve. Once you determine when the duty to preserve commenced, you need to identify what needs to be preserved. While the scope of this duty has not changed dramatically over the years, the location, type and amount of information included within that duty has exploded in the past decade due to the advancement of technology and growth of social media outlets. This expansion of available outlets and the ease of creating information has substantially increased the complexity of issues associated with complying with the duty to preserve.…

Be careful what you say

This article was published originally at The article is the fourth in a six-part series focusing on evidence spoliation. Read more about previous posts. Technology Law Source will notify readers as publishes additional articles in this series.

In its simplest terms, a legal hold (also known as a litigation hold, preservation order, suspension order, freeze notice, hold notice or hold order) is a process that an organization uses to preserve all forms of relevant information when litigation is reasonably anticipated, according to Shira A. Scheindlin and Daniel J. Capra, who wrote The Sedona Conference, Electronic Discovery and Digital Evidence. Legal holds can take many forms and may be initiated by individuals within and/or outside an organization. For example, a hold can be oral, written or electronic and may be implemented by company executives, in-house counsel, representatives from the human resources or information technology department or outside counsel.

No matter who or how a hold is implemented — issuing a proper hold is essential. The purpose of a legal hold is to inform all relevant personnel of their obligation to locate and preserve all information that may be pertinent to actual or threatened litigation. To accomplish this task, a legal hold must provide some type of description of the actual or anticipated proceeding, identify the scope and type of information to preserve, and specify the locations of the information to be preserved. The hold must also confirm that any applicable document destruction procedures or policies of an …

Court uses “Traditional Relevance Analysis” to order production of plaintiff-employee’s social media postings on emotional distress and alternative potential stressors

In an ADA employment discrimination case, a federal court recently denied a defendant’s request to compel the plaintiff to provide authorizations for all of her social media accounts, but still ordered the production of any social media postings relevant to the plaintiff’s claimed emotional distress damages. See Giacchetto-v-Patchogue-MedfordUnion, No. CV 11-6323 (E.D.N.Y. May 6, 2013). The court followed the approach taken in Howell v. Buckeye Ranch, Inc., No. 11-CV-1014 (S.D. Ohio Oct. 2012), and applied a “traditional relevance analysis,” stating “[t]he fact that Defendant is seeking social networking information as opposed to traditional discovery materials does not change the Court’s analysis.” Giacchetto, slip op. at 3.

In reaching its result, the court rejected the approach taken by some federal courts that the private section of a Facebook account is discoverable only if the party seeking the information can make a threshold evidentiary showing that a plaintiff’s public Facebook profile contains information that undermines her claims. According to the court, this approach can be too broad because “a plaintiff should not be required to turn over the private section of his or her Facebook profile (which may or may not contain relevant information) merely because the public section undermines the plaintiff’s claims.” Id. at 3 n. 1. This approach also can be too narrow because “a plaintiff should be required to review the private section and produce any relevant information, regardless of what is reflected in the public section.” Id. “The Federal Rules of Civil Procedure do not require a …

When does a company have a duty to preserve evidence?

This article was published originally at The article is the first in a six-part series focusing on evidence spoliation. Read part 2: Events courts consider when deciding if duty to preserve evidence has been triggered; and part 3: Preservation obligations after a duty to preserve has been triggered. Technology Law Source will notify readers as publishes additional articles in this series.

There is no consensus among state or federal courts on the standards that govern preservation and spoliation issues. Yet, whether and when a company has a duty to preserve evidence is among the first questions that come to mind for inside counsel considering spoliation issues. Generally, a company has no duty to preserve evidence before litigation is filed, threatened or reasonably foreseeable unless there is a statutory or regulatory mandate, a contractual obligation, some special circumstance, or an organization has voluntarily assumed an obligation to retain some document, data or thing. That means, unless a company has notice of a probable or pending litigation or a government investigation, it generally has the right to dispose of its own property, including documents, electronically stored information or tangible things, without liability.…

Court relies on proportionality to deny inspection of defendant’s computers, cell phones and email accounts

Earlier this year, we wrote about a decision in which a federal district court rejected a proportionality argument and ordered the production of a defendant’s entire database because the information in the database was highly relevant to the plaintiff’s trademark infringement claim. Another federal district court recently came out differently in a trade secret misappropriation and restrictive covenant case on a plaintiff’s request for inspection of (a) all the defendant’s computers, hard drives, and electronic devices, and (b) the email addresses and log-in information for all the defendant’s email accounts. See Carolina Bedding Direct, LLC v. Downen, Case No. 3:12-CV-336 (M.D. Fla. May 7, 2013).

The court denied the request for inspection because “the proposed discovery [was] not outweighed by the likely benefit.” Slip op. at 4. The court’s reliance on proportionality is consistent with the emphasis placed on proportionality in the current draft amendments to the Federal Rules of Civil Procedure and the new section on e-discovery in the recent edition of the Benchbook for U.S. District Court Judges.

In its analysis, the court stated that “Rule 34 does not grant unrestricted access to a respondent’s database compilations.” Id. at 3. To gain such direct access, “the court must make a factual finding of some non-compliance with discovery rules and protect respondent with respect to preservation of his records, confidentiality of non-discoverable matters and costs.” Id.…