Have People Figured Out eDiscovery Yet? Because 2017 Suggests They Haven't
A list of the top 10 eDiscovery cases of 2017 reveals some parties have a long way to go in understanding their obligations.
It’s not as though eDiscovery is a groundbreaking new phenomenon. While the amount of electronic data grows every day, the basic principles guiding discovery in the digital age hasn’t changed too much. Even the much ballyhooed amendments to the Federal Rules of Civil Procedure didn’t change the discovery process so much as substantially refine it. “Proportionality” may be the new lingo, but dig deeper and it was always there, dancing in the caselaw. The amendments just moved it, significantly, to center stage.
So it’s disheartening to see so many of the top eDiscovery cases of 2017 involved the gross misunderstanding of the process. Come on, people!
Exterro has compiled a top 10 list of eDiscovery cases from last year — which you can request here — compiled based on the most viewed or downloaded cases from Exterro’s E-Discovery Case Law Library. The list provides short descriptions of the cases and bulleted takeaways for lawyers trying to stay atop the eDiscovery law landscape, but here are a few highlights.
10. Fischer v. Forrest — Judge Peck Unleashed!
While the amendments to the Federal Rules may not be as sweeping as some claim, they are significant and Southern District of New York Magistrate Judge Andrew Peck has exactly zero patient for litigants who haven’t bothered to keep up on the Rules. After the defendants lodged 17 boilerplate objections (a practiced no longer allowed under the Rules) and thoughtlessly cited the well-worn “likely to lead to the discovery of relevant, admissible evidence” language (language no longer in the Rules, even if the broad construction of relevance hasn’t truly changed — see, e.g., In re: Am. Med. Sys., Inc.), Judge Peck unleashed a broadside on them.
From now on in cases before this Court, any discovery response that does not comply with Rule 34’s requirements to state objections with specificity will be deemed a waiver of all objections (except as to privilege).
He went on to rip the vagueness of the boilerplate objections and declare the opinion a “wake-up call to the Bar in this district.” Hopefully, everyone got the message.
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8. Carter v. H2R Restaurant Holdings — My Time Is Too Valuable For This
A Meet and Confer assumes that if lawyers can get in a room and actually talk to each other, the thinking goes, they’ll forge reasonable solutions to their discovery disputes rather than drag out their disagreements to rack up billable hours. It’s often a comical farce, but any risk that it saves the court from having to hash over meaningless fights makes it worthwhile. But what if a party steadfastly refuses to meet because they see no point in it? The defendants asked the court to impose a sanction on the recalcitrant plaintiff, but the court declined, agreeing that under the circumstances the meet and confer was just a waste of time.
5. Gordon v. T.G.R. Logistics, Inc. — Your Request May Be Cheap, But That Doesn’t Mean It Isn’t Stupid
The defendant wanted three years of Facebook posts. The plaintiff declined. While the court agreed with the defendant that Facebook makes gathering old information relatively easy, but that wasn’t enough:
Just because the information can be retrieved quickly and inexpensively does not resolve the issue. Discovery can be burdensome even as it is inexpensive.
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3. Ronnie Van Zant, Inc. v. Artimus Pyle — If I Leave (My Phone) Here Tomorrow/Would You Still Remember Me (Or My Texts)?
Lynyrd Skynyrd drummer Artimus Pyle has a documentary about the band’s 1977 plane crash, but there’s a 1988 consent order about using the band’s name and several former members thought Pyle violated that with this film. But the eDiscovery issue at hand involved the defendant’s responsibility for the loss of texts when a third-party bought a new phone. The court held that Pyle was responsible for the third-party’s actions because those texts met the “practical ability” test for “control.”
And to think, Tom Brady tried to get away with saying he wasn’t responsible for spoliation because he destroys his personal phone every few months.
Check out the whole list, including the top case from the Supreme Court, by signing up here.
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.
