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Part II of the Most Influential Plaintiff eDiscovery Cases of 2014

Posted on December 17th, 2014

The Year in Electronic Discovery, Continued

In Part I of our year-end review of the most influential plaintiff electronic discovery cases of 2014, we highlighted trends regarding ESI formatting, native files, metadata, search terms, spoliation, and sanctions.

In Part II of the year-end roundup, we explore cases from the last year regarding predictive coding, inadvertent disclosure, forensic imaging, and ethical duties concerning ESI.

Courts Endorse Predictive Coding

Dynamo v. Commissioner of Internal Review and Beekman v. Commissioner of Internal Review[1] Plaintiff wanted to use predictive coding to conduct a privilege review of archived back-up tapes. Defendant wanted Plaintiff to produce the tapes in full and offered to agree to a clawback order in case Plaintiff inadvertently produced privileged material. The tax court sided with Plaintiff and endorsed Plaintiff’s use of predictive coding.

Bridgestone Americas, Inc., v. International Business Machines Corporation[2] Magistrate judge allowed Plaintiff to use predictive coding over Defendant’s objections.

Progressive Casualty Insurance Company v. Jackie K. Delaney, et al.[3] Although the court acknowledged that predictive coding has an increased accuracy over human review, the court denied Plaintiff’s late request to use predictive coding, finding that Plaintiff refused to engage in the type of cooperative transparency required by other courts for successful predictive coding.

Federal Housing Finance Agency v. HBSC North America Holdings Inc., et al.[4] In dicta, the court cited a study that human review produced 25-80% of relevant documents, while predictive coding returned between 67-86% of relevant documents.

Inadvertent Disclosures Protected from Waiver

Russel Dover, et al., v. British Airways, PLC (UK)[5] After Plaintiff inadvertently produced two privileged work product spreadsheets, the court rejected Defendant’s motion for implied waiver. The court considered the parties’ stipulated protective order, which stated that implied waiver occurred only in a “completely reckless” disclosure. The court found that because Plaintiff sought to retrieve the work product documents within six days, such conduct did not rise to the level of “completely reckless.”

Pick v. City of Remsen[6] Plaintiff inadvertently produced one privileged email. Plaintiff contacted Defendant to claw-back the document less than an hour after receiving notice of its disclosure. Reviewing the five factors from the Eight Circuit’s Hydraflow[7] approach to inadvertent privilege production, the magistrate judge ruled that Plaintiff had not waived the privilege.

What Situations Warrant Court-Ordered Forensic Imaging?

T&E Investment Group LLC v. Faulkner, et al.[8] Plaintiff’s computer forensic expert revealed that Defendant had altered metadata and deleted electronic evidence. The court entered bad faith spoliation sanctions against Defendant, ordering an adverse inference instruction and entering a large monetary fine against Defendant.

Boston Scientific Corporation v. Dongchul Lee[9] Court denied Plaintiff’s request for full forensic imaging because Defendant had cooperated with discovery obligations and the case involved direct competitors in the biomedical industry. The court held that complete forensic images would present too great a risk of disclosing privileged communications and trade secrets.

Ethical Duties Regarding Electronic Discovery

In Formal Interim Opinion No. 11-0004, the California Bar Association addressed the hypothetical situation where an attorney not well-versed in electronically stored information failed to consult with an electronic evidence expert. The Opinion stated that any subsequent mistakes by the attorney related to ESI would constitute ethical violations of the duty of competence, the duty of confidentiality, the duty to not suppress evidence and the duty of candor.

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[1] Docket Nos. 2685-11, 8393-12 (US Tax Ct. Sept. 17, 2014).

[2] No. 3:13-1196 (M.D. Tenn. July 22, 2014).

[3] 2014 WL 2112927 (D.Nev. May 20, 2014).

[4] Case 1:11-cv-06189-DLC (S.D.N.Y. February 14, 2014).

[5] (E.D.N.Y. August 15, 2014).

[6] No. C 13-4041-MWB (N.D.Iowa, September 15, 2014).

[7] Hydraflow, Inc. v. Enidine Inc, 145 F.R.D. 626, 637 (W.D.N.Y. 1993).

[8] No. 11-CV-0724-P (N.D.Tx. February 12, 2014).

[9] Nos. 5:14-mc-80188-BLF-PSG, 1:13-cv-13156-DJC (N.D. Cal. August 4, 2014).

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