Legal Hold/Preservation: N.M. Oncology & Hematology Consultants v. Presbyterian Healthcare Servs., 2017 U.S. Dist. LEXIS 130959 (D.N.M. Aug. 16, 2017). In this case, the court declined to impose sanctions for a litigation hold that gave employees discretion when preserving documents, citing no prejudice to the opposing party. However, the court clarified that because data storage is inexpensive, there is less justification to allow employees preservation discretion, and that "the best approach is to implement a server-side hold on all digital data utilized by key employees and to later use search algorithms to parse relevance."
Proportionality: Oxbow Carbon & Minerals v. Union Pac. R.R., 2017 U.S. Dist. LEXIS 146211 (D.D.C. Sept. 11, 2017). Granting a motion to compel production of tens of thousands of documents, the court reviewed each of the proportionality factors in amended Rule 26(b)(1), emphasizing that each factor should be weighed equally and no one factor is to be given more weight over others.
Production: Fischer v. Forrest, 2017 U.S. Dist. LEXIS 28102 (S.D.N.Y. Feb. 28, 2017). In this trademark infringement case, Magistrate Judge Andrew Peck delivered a stern message to attorneys regarding discovery responses. He cautioned of the use of “meaningless boilerplate responses” in light of amended Rule 34's requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) and warned that any such use before his court would be deemed a waiver of all objections (except as to privilege).
Technology-assisted Review (TAR): Winfield v. City of New York, 2017 U.S. Dist. LEXIS 194413 (S.D.N.Y. Nov. 27, 2017). Resolving a discovery dispute that challenged the defendant’s predictive coding process, the court refused to question the accuracy and reliability of the use of TAR, despite some noted review errors. Specifically, the plaintiff contended that the defendant too narrowly interpreted relevance and miscoded relevant documents as irrelevant. As such, the court ordered the production of some non-responsive documents to provide better transparency and encourage cooperation.
Sanctions: Snider v. Danfoss, 2017 U.S. Dist. LEXIS 107591 (N.D. Ill. July 12, 2017). Underscoring the difficulty a moving party faces in obtaining sanctions under amended Rule 37(e), the court refused to issue sanctions where the movant was not prejudiced by the defendant’s deletion of emails pursuant to a policy requiring deletion 90 days after an employee’s termination.
Costs: Bailey v. Brookdale Univ. Hosp., 2017 U.S. Dist. LEXIS 93093 (E.D.N.Y. June 16, 2017). Where necessary, courts are crafting cost-shifting orders to protect parties from undue burdens or expenses associated with ESI production. In this case, the court ordered partial cost-shifting, requiring the defendants to bear 40 percent of discovery costs and plaintiff’s counsel (rather than the plaintiff himself) to bear the rest, noting counsel’s failure to engage in meaningful discussions with his client and lack of meet-and-confer sessions with opposing counsel.
As the end of the year draws near, there is no better time to examine the highlights of ediscovery case law from the previous twelve months. This year precipitated a new generation of ediscovery opinions, with judges delving into the intricacies of proportionality burdens and benefits, considering technology assisted review (TAR) methodologies, and weighing sanctions for preservation calamities.