Magistrate Judge in the Northern District of Indiana Declines to Compel Re-Production of Non-Compliant Electronic Data in Light of Proportionality Considerations

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Addressing the issue of whether electronically-stored information had been produced in compliance with Rule 34, Magistrate Judge Gotsch noted that: “To show that it produced documents as they were kept in the ordinary course of business, a producing party cannot simply assert that the format of its production comports with its usual business practices. A producing party must also show …

Plaintiff’s Social Media History is Discoverable, but with Limitations

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Defendant in a personal injury case sought the plaintiff’s social media history.  While the plaintiff technically waived her objections to the discovery requests by failing to serve them within thirty days, Magistrate Judge Erin Wilder-Doomes, sitting in the Middle District of Louisiana, nevertheless limited them as overbroad: “As Defendant points out, social media is generally discoverable. However, a request for …

Seventh Circuit Says Wife’s Unauthorized Access to Husband’s E-Mails Could Violate Federal Wiretap Act

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A husband embroiled in an acrimonious divorce brought suit against his wife claiming a violation of the Electronic Surveillance Act by surreptitiously placing an auto-forwarding “rule” on his e-mail accounts that automatically forwarded the messages on his e-mail to her. He also alleges that the wife’s divorce attorney violated the Act by “disclosing” the intercepted emails in response to his …

Louisiana Fourth Circuit Reverses Summary Judgment on Intentional Spoliation Claim

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In summary: “The trial court found Ms. Fiveash failed to present any evidence to establish that Defendants intentionally destroyed evidence with the purpose of depriving her of its use at trial. Louisiana jurisprudence has held summary judgment based on subjective facts like intent is rarely appropriate. The trial court incorrectly relied on self-serving and conclusory affidavits that Defendants offered in …

Magistrate Judge in the Middle District of Louisiana Discusses Limitations on Discovery of Social Media

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“Movants are seeking relevant information posted on social media directly pertaining to Plaintiff’s claims in the Petition. Such social media is generally discoverable…. “The issue here is whether Plaintiff shared relevant information to the claims and defenses in this action with third parties. Regardless of whether Plaintiff emplaced privacy settings on her social media postings, these postings were freely shared …

Magistrate Peck in the Southern District of New York Discusses (again) the Benefits of Predictive Coding, yet Declines to Compel the Producing Party

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Recounting several prior decisions on the subject, Magistrate Judge Pack noted that TAR (Technology Assisted Review) (or predictive coding) is, in general, “cheaper, more efficient and superior to keyword searching. In March 2009, the ‘dark ages’ in terms of ediscovery advances, this Court described problems with keywords and the need for ‘careful thought, quality control, testing, and cooperation with opposing …

District Court Judge in Peurto Rico Orders Party to Re-Produce Billing Records in Excel Format, as Requested

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In civil RICO case, the plaintiff requested billing records in Excel format. The defendants produced the records in PDF. When plaintifff filed a motion to compel, the defendants argued that the parties had never agreed upon a specific format, and that the billing software permitted only PDF. Compelling the defendants to re-produce the billing data in Excel format, the Court …

District Court Judge in Washington Sanctions Attorney for Side-Stepping Proportionalty Requirements

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In a FDCPA case, the defendants moved to either compel discovery or exclude medical evidence presented by the plaintiff. Sanctioning the defendants, the Court observed as follows:   “Defendants cited caselaw that analyzed the version of Federal Rule of Civil Procedure 26(a)(1) that existed before the highly publicized amendments took effect on December 1, 2015. As this court indicated at …

U.S. Tax Court Addresses the Sufficiency of Production where Predictive Coding is Employed

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“When responding to a document request, technology has rendered the traditional approach to document review impracticable. The traditional method is labor intensive, with people reviewing documents to discern what is (or is not) responsive, with the responsive documents then reviewed for privilege, and with the responsive and non-privileged documents being produced. When reviewing documents in the dozens, hundreds, or low …

Magistrate Judge in the District Court of Kansas Discusses Application of New Proportionality Language to Discovery Disputes

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The plaintiff sought additional electronically-stored information which the defendant claimed was privileged. Rather than deciding the issue based on the existence and/or waiver of the attorney-client privilege, the court focused on the new proportionality language in Rule 26:   “The consideration of proportionality is not new, as it has been part of the federal rules since 1983. Moving the proportionality …