By Mike Hamilton, J.D.
2012 was a busy year for the E-Discovery Beat’s Thursday Case Law series. In 47 posts, we have reported on a wide array of e-discovery issues, from cross-border privacy concerns to misguided preservation efforts in Apple v. Samsung to the judicial acceptance of predictive coding. Following is a look back at the E-Discovery Beat’s Most Notable E-Discovery Rulings for 2012:
Case Most Likely to Have Slipped Your Radar: Omogbehin v. Cino (3d Cir. June 20, 2012)
This case evoked a common theme within e-discovery case law (which many might not have noticed) – allegations of spoliation do not equal proof of spoliation. Legal teams, as many know, cannot assume facts or actions. In Omogbehin, the plaintiff requested that the defendant preserve all data, including backup tapes, without deletions or tampering. After the defendant’s production, the plaintiff believed that specific emails were not produced and argued that the defendant had “intentionally destroyed or suppressed relevant emails and voicemails.” Within this argument, the plaintiff forgot to actually prove that spoliation occurred. As a result, the court denied the plaintiff’s motion for spoliation sanctions.
- Key Takeaway: Sometimes, people, like the plaintiff in this case, get so caught up believing something is true that they fail to take the necessary steps to prove their allegations. To help prove spoliation, parties must create protocols and leverage the auditing capabilities in today’s technology platforms. The documented metrics can help to more defensibly prove alleged claims.
Most Surprising Ruling: EOHB, Inc., et. al. v. HOL Holdings, LLC, C.A. (Del. Ch. Oct. 15, 2012)
If e-discovery pundits were asked what the primary theme of e-discovery case law in 2012, most would probably say predictive coding. In 2012, there have been a handful of cases where judges have permitted the use of predictive coding, most notably Judge Peck’s Da Silva Moore ruling. In each one of these cases, one party requested that predictive coding be used. But in a surprising and unexpected decision, Vice Chancellor J. Travis Laster in Delaware Chancery Court issued a historic order and became the first court to require both sides of a dispute to use predictive coding, even though neither party asked for it.
- Key Takeaway: Wait and see. The adoption and use of predictive coding, while prevalent among the early adopters/trail blazers (Maura Grossman, Bennett Borden, etc.), is very new and untested throughout the entire legal community. In 2013, it will be interesting to see if judges follow Laster’s lead, albeit highly unlikely.
Most Underutilized Rule: FRE 502(d) – Attorney-Client Privilege, Limitations on Waiver
At Georgetown’s Advanced E-Discovery Institute, federal judges implored attorneys to start utilizing FRE 502(d). This rule enables “a federal court [to] order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also no a waiver in any other federal or state proceeding.” (See Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc. (S.D. Ohio Aug. 28, 2012))
- Key Takeaway: Legal teams should be proactive by leveraging FRE 502(d) to safeguard against inadvertently producing privileged information. All it takes is meeting with the opposing counsel at the outset of the case and collaborating to create this agreement. It can be as broad or as narrow as the parties choose. Not only will this save each side time and money, it will garner a more hospitable judge (at least according to those at Georgetown).
Most Anticipated Ruling: Pippins v. KPMG (S.D.N.Y. Feb. 3, 2012)
Regarding the principle of proportionality, the ruling by the Southern District of New York clarified questions surrounding proportionality (e.g. how ‘key players’ in a matter are defined, what constitutes relevant evidence for preservation purposes, etc.). In Pippins, the defendant, KPMG, motioned for a protective order to limit the scope of the preservation request or to shift the very expensive preservation costs (2,500 hard drives, costing $1.5 million) to the plaintiff, Pippins. In affirming the lower court’s decision, Judge McMahon ordered that KPMG preserve all existing hard drives based on three primary factors: (1) The hard drives contained relevant information; (2) A proportionality claim was not valid since the court had no way of deciphering the benefit of preserving the hard drives; and (3) All members of the class were deemed “key players.”
- Key Takeaway: As the court noted, early cooperation between the parties could have prevented the drawn out and costly discovery motion practicing. Even though the two sides initially agreed to sample the hard drives, which would’ve restricted the amount of data to be preserved by KPMG, neither side could ultimately agree on the sampling criteria.
Best Judicial Quote: Judge Facciola in Tayadon v. Greyhound Lines, Inc. (D.D.C. June 6, 2012)
In a refreshing move, Judge Facciola proclaimed that everyday adversarial gamesmanship would not be tolerated in his court. Maybe it was due to the plaintiff wanting sanctions for the defendant’s perceived “delay tactics” when responding to discovery requests, even though the scheduled deadline for discovery wasn’t even closed. Or, maybe it was because the defendant motioned for supplemental responses to interrogatories when any deficiencies could easily have been rectified in subsequent depositions. Whatever the cause, Judge Facciola dedicated the last section of his opinion to clearly lay the playing field for the appropriate discovery behavior moving forward, proclaiming the ideal of COOPERATION must reign supreme:
“As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town—not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation (citation omitted). First, the parties will meet and confer in person in a genuine, good faith effort to plan the rest of discovery. They shall discuss and agree, if they can, on issues such as the format of any additional productions, the timing and staging of all depositions, the submission to each other of discovery reports, and the scope and timing of any Federal Rule of Civil Procedure 30(b)(6) depositions. The parties will then jointly submit their discovery plan for my approval. I commit myself to work with them in resolving any disagreements, whether they arise initially or during discovery. To that end, I will schedule a telephonic status conference every two weeks in which I will ask the parties about their progress (or lack thereof) and try to resolve any disagreements they have.”
- Key Takeaway: Even with this declaration, parties still need more than just a cooperative attitude to adequately conduct e-discovery. They need the e-discovery tools, intelligence and facts early in a matter that can help them facilitate this cooperation and, at the same time, advocate for discovery parameters that are proportional to the case.
To learn more about the 2012 case law trends and predictions for 2013, download Exterro’s most recent white paper, E-Discovery Case Law Review: The 3 Ps for 2013, here.
Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.