Like the prior year, 2015 was an interesting year for electronic discovery disputes. As the world becomes increasingly digital, there is a corresponding increase in the prevalence and importance of electronically stored information (ESI) as evidence in litigation. Here, the plaintiff eDiscovery team at ILS presents significant eDiscovery cases of 2015.
Audit Trails and Medical Records: Good Cause Required
- Hall v. Flannery, Case No. 3:13-cv-914-SMY-DGW (S.D.Ill. May 1, 2015): Plaintiff alleged that Defendant had altered medical records generated by software which creates electronic medical charts based upon Defendants’ production of two different medical charts. Plaintiff sought to compel the metadata for the produced records, including the audit trail, which would show when the records had been accessed and by whom. Defendant argued that the peer review privilege and the work production doctrine protected these audit trails; however, the court held that neither the peer review privilege nor the work product doctrine applied and ordered the audit trails produced.
- Vargas v. Lee, et. al., 2015 NY Slip Op 31048(U) (June 5, 2015): Plaintiff in Vargas had undergone surgery, which caused complications resulting in the amputation of one of his limbs. During discovery, the defendant hospital produced electronic medical records but refused to provide the audit trails for these records. The court denied Plaintiff’s motion to compel, holding that a showing of good cause was necessary, and Plaintiff had not met this burden. Plaintiff’s request was supported by a need to discover the timing and substance of his treatment, which the court held was already present in the documents produced.
The Meet and Confer Requirement: Make it Meaningful
- Morgan Hill Concerned Parents Assoc. v. California Dep’t, No. 2:11-cv-03471-KJM-AC (E.D. Cal., Feb. 9, 2015) The Court in the Eastern District of California ordered the parties to meet and confer regarding their numerous discovery disputes. After a number of meetings and exchanges of correspondence, the parties were found to have accomplished very little. The court chastised both parties for failing to meaningfully meet and confer. A further order was issued requiring that the parties to conduct at least two in-person sessions and file a joint report to summarize the meetings, including delineation as to the attendance and duration of the meetings. Compliance with this requirement was also ordered to be a pre-requisite for the filing of any further discovery motions.
- Herron v. Fannie Mae , CV No. 10-943 (RMC) (D.D.C. Feb. 2, 2105): In another case where the court’s patience simply ran out, the court titled its order “Order on One Millionth Discovery Dispute.” The parties had struggled with multiple discovery disputes and had been granted numerous extensions of the discovery deadline (to the extent that the judge had issued a prohibition against any further extension). Even after the issuance of the drop dead discovery deadline, the parties again presented discovery disputes to the court, this time involving disputes as to Rule 30(b)(6) depositions. The tenor and substance of the court’s orders regarding the depositions clearly articulated the court’s frustration with the parties’ failure to fully explore resolution options or otherwise narrow the issues in dispute. The takeaway from the order is the emphasis on the importance of fully utilizing the meet and confer process.
Cost Shifting and ESI Discovery
- Colosi v. Jones Lange LaSalle Americas, Inc., No. 14-3710 (6th Cir. Mar. 17, 2015): In this case, the Sixth Circuit expanded the scope of permissible ESI costs for the prevailing party. In ruling that Defendant was permitted to recover costs for computer forensic imaging, the court held that such costs were included in the “making copies” provision of 11 U.S.C. § 1920. This holding thereby expressly rejects the Third Circuit opinion in Race Car Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F3d 158 (3rd Cir. 2012), which denied a prevailing party’s request for recovery of computer imaging costs. Race Car Tires held that a court could tax an ESI imaging cost only if the party converted documents to an agreed-upon format and burned them to a DVD, thus satisfying the “making copies” requirement. The Colosi case diverges from this view, permitting the imaging alone to be taxed as a copying cost.
- Comprehensive Addition Treatment Center, Inc. v. Leslea, et al., No. 11-cv-03417-CMA-MJW (D. Colo. Feb. 13, 2015): In another case where cost-shifting under Section 1940 was broadly construed, the District of Colorado permitted the prevailing Defendants to recover their costs for hiring a third-party eDiscovery vendor to assist with their ESI production. The court awarded about $57,000 for the costs incurred in collecting, scanning, collating and preparing the ESI documents for production to Plaintiff.
- In Re Online DVD-Rental Antitrust Litigation, Nos. 11-18034, 12-16160, 12-16183 (9th Cir. Feb. 27, 2015): Here, the Ninth Circuit was requested to decide whether certain ESI production costs could be shifted to the prevailing party. After reviewing the general landscape of cost-shifting law nationally, the court analyzed the individual costs sought in this case. The court held that costs incurred doing keyword searches were not taxable, but that OCR and TIFF conversions were taxable as long as they were necessary for the litigation.
Reach Out to Our Plaintiff Electronic Discovery Experts
We certainly expect to see more electronic discovery opinions in 2016, particularly as the amended Federal Rules of Civil Procedure are now in full force and effect. Contact ILS today if you are facing a ESI-intensive discovery phase and need the assistance of eDiscovery experts to maximize the outcome of your ESI protocol negotiation, issue coding, metadata retrieval, computer forensics and more.