2017 eDiscovery Case Law Update

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2017 eDiscovery Caselaw Update
May 11, 2017

Agenda
Are Boilerplate discovery responses finally out of fashion?
Forrest Gump can hand out treats from a box on a park b...

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

>>> Boilerplate Discovery Responses Might Finally Be Passe

Boilerplate
The hallmark of a boilerplate objection is its generality. The word
“boilerplate” refers to “trite, hackneyed ...

“If there is a hell to which disputatious,
uncivil, vituperative lawyers go, let it be
one in which the damned are eternal...

Mancia v. Mayflower Textile Servs. Co.,
253 F.R.D. 354 (D. Md. Oct. 15, 2008)
“It would be difficult to dispute the notion...

2014 Report of the Judicial Conference
Committee on the 2015 amendments
“the use of broad, boilerplate objections that pro...

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-
curr...

>>> Surprise Bonus Lesson!

Liguria Foods, Inc. v. Griffith Laboratories,
Inc., Case No. C14-3041 (N.D. Ia. March 13,
2017)
"NO MORE WARNINGS. IN THE
...

Liguria Foods, Inc. v. Griffith Laboratories,
Inc., Case No. C14-3041 (N.D. Ia. March 13,
2017)
"NO MORE WARNINGS. IN THE
...

>>> How NOT to Protect Client Confidentiality

[Plaintiff] has conceded that its actions were the cyber world equivalent of leaving its
claims file on a bench in the pub...

[Plaintiff] has conceded that its actions were the cyber world equivalent of leaving its
claims file on a bench in the pub...

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

We will try to make this simple . . .

Insurance company needs to get big video file to investigator

Step 1: Insurance company puts video in unsecured Box folder

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

Step 3: Attorneys download copy of case file

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

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

Step 6: All Hell breaks loose

Insurer claims privilege, seeks return of file
Attorney-client privilege = state law ≠ sufficient precautions to protect p...

Easy question
So, who got sanctioned?

>>> Surprise Bonus Lesson!

Sanctions entered against DEFENDANTS
Lawyers have an ethical duty regarding potentially privileged info from other side
Co...

Sanctions entered against DEFENDANTS
Defendants sought bar ethics opinion
In the meantime, read file
Sent to other defenda...

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

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

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...

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...

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...

>>> Surprise Bonus Lesson!

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

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

Undisclosed ESI – until AFTER the case settled
“Mr. Taylor [a Goodyear engineer]
located “electronic post-production
W84 h...

37(e) question: do the courts still have “inherent authority to
sanction discovery misconduct?
Comments to new Rule 37(e):...

37(e) question: do the courts still have “inherent authority to
sanction discovery misconduct?
Chief Magistrate Judge Jame...

Approved of inherent authority
But sanctions were limited to ameliorating the specific harm done by the bad act
The award ...

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

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

1. The requesting party specifies the format
for production;
2. If the requesting party does not specify a
format, or if t...

Morgan Hill Concerned Parents Ass’n v. Cal.
Dep’t of Educ., No. 2:11-cv-3471 (E.D. Cal. Feb.
1, 2017)
Plaintiffs requested...

Morgan Hill Concerned Parents Ass’n v. Cal.
Dep’t of Educ., No. 2:11-cv-3471 (E.D. Cal. Feb.
1, 2017)
Defendant also claim...

>>> Surprise Bonus Lesson!

Is Rule 34(b) now a trap?
“Loser pays” - federal cost-taxing
statute, 28 U.S.C. § 1920(4)
Requestors hit with costs for
ma...

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

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