Because You Need to Know: 2019 Year-in-Review, Part 4

A multi-part series reviewing news stories and noteworthy new cases from across 2019

In the first Part, we reviewed selected industry news stories and useful new publications from 2019.  In the second Part, we reviewed selected social media and mobile devices cases from 2019.  In the third Part, we reviewed selected ESI spoliation sanctions cases from 2019.  In this final Part, we discuss selected proportionality cases from 2019 and a few other cases of note.

Throughout the year, XDD rounds up industry news stories, noteworthy cases, and more in monthly “Because You Need to Know” posts.  In this series, we are reviewing some of the biggest developments and most interesting cases from across 2019.  If you prefer to listen rather than to read, we also recently offered a free, one-hour educational webinar reviewing this material.  A recording of that program is available here.

In this final Part, we discuss selected proportionality cases from 2019 and a few other cases of note, including cases discussing nonparties’ duty to preserve, inadvertent disclosure, patent discovery, and Google Maps authentication.

Proportionality Cases

On December 1, 2015, Federal Rule of Civil Procedure 26(b)(1), which defines the scope of discovery, was revised to bring the existing-but-overlooked concept of proportionality front and center in an attempt to combat the runaway cost and scale of discovery in the digital era.  Over the four years since this amendment became effective, parties and courts have wrestled with how to effectively demonstrate proportionality or disproportionality and with the weight that should be accorded to individual privacy:

• Santana v. MKA2 Enterprises, Inc., No. 18-2094-DDC-TJJ (D. Kan. Jan. 8, 2019)
  • In this employment discrimination case, the Defendant sought production of “all cellular telephones used by you from the date your employment with Defendant started to the present for purposes of inspection and copying.”  The Plaintiff objected on the ground that the request was “not proportional” and “unduly burdensome and invasive.”  In her analysis, the Magistrate Judge emphasized the incredible amount of information – much of it both irrelevant and private – that was implicated by a request for production of the devices themselves:

In any event, Plaintiff’s cell phone likely contains a tremendous volume of information, including possibly text messages, email messages, phone logs, and photographs that are not at all relevant to the claims or defenses in this case.  Even many or most of those texts and messages between Plaintiff and his co-workers or former co-workers may have no relevance to the claims and defenses in this case . . . .  Any relevant information concerning phone calls Plaintiff made to or received from co-workers and former co-workers could be more easily and less invasively obtained by asking Plaintiff about the calls during his deposition.  [emphasis added]

The Magistrate Judge then quotes from the Advisory Committee Notes to Federal Rule of Civil Procedure 34(a):

Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy . . . .  Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.  [emphasis added]

Based on these principles, the Magistrate Judge found that the Defendant’s discovery request was:

. . . overly broad, unduly burdensome and not proportional to the needs and issues of this case . . . .  In accordance with Rule 34(a), the Court must guard against the undue intrusiveness that would result from the requested inspection and copying of Plaintiff’s cell phone(s).  [emphasis added]

• Lareau v. Nw. Med. Ctr., No. 2:17-cv-81 (D. Vt. Mar. 27, 2019) – In this case, the defendant used judgmental sampling of proposed search term results (showing high effort and low relevance) to demonstrate disproportionality and defeat a motion to compel all of plaintiff’s requested searches.

• In re Apple Inc., No. 5:18-md-02827-EJD (N.D. Cal. Aug. 22, 2019) – In this case, the court balanced privacy and discovery interests and decided to allow forensic imaging of plaintiffs’ personal mobile devices:

Apple’s interest in performance testing the forensic images outweighs Plaintiff’s privacy interest because Plaintiffs put the performance of the devices at the center of the lawsuit.  The court further finds that Plaintiffs have not presented a feasible alternative that will satisfy Apple’s interest in the performance testing.  [emphasis added]

Other Cases

• Shamrock-Shamrock, Inc. v. Remark, No. 5D18-1987 (Fla. Dist. Ct. App. Apr. 26, 2019) – In this Florida state case, the court concluded that a nonparty does not have a duty to preserve in the absence of an explicit discovery request notifying them: “This case presents the issue of whether Florida law imposes a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation. We hold that it does not . . . .” [emphasis added]

• Bellamy v. Wal-Mart Stores, Texas, LLC, No. SA-18-CV-60-XR (W.D. Tex. Aug. 19, 2019) – In this case, inadvertent production of privileged materials was found not to constitute waiver under FRCP 502(b), but the court still applied sanctions (e., monetary and preclusion) for discovery misconduct revealed by the inadvertently-disclosed materials (i.e., failure to identify, preserve, and produce other relevant materials).

• Nuvasive, Inc. v. Alphatec Holdings, Inc., No. 18-cv-0347-CAB-MDD (S.D. Cal. Oct. 7, 2019) – In this case, the court is critical of the Model E-Discovery Order for Patent Cases and emphasizes the traditional roles of requesting and responding parties enshrined in the FRCP.

• City of Miami v. Kho, No. 3D18-2369 (Fla. Dist. Ct. App. Oct. 16, 2019) – In this Florida state case, the plaintiff successfully used a Google Maps photograph of a sidewalk’s past condition to establish constructive notice, over defendant’s objections that it was not properly authenticated (e.g., by a Google employee’s testimony). The trial court’s decision was reversed on appeal due to lack of proper authentication for the Google Maps photograph (and the importance of that piece of evidence).

For Assistance or More Information

Xact Data Discovery (XDD) is a leading international provider of eDiscovery, data management and managed review services for law firms and corporations.  XDD helps clients optimize their eDiscovery matters by orchestrating precision communication between people, processes, technology and data.  XDD services include forensics, eDiscovery processing, Relativity hosting and managed review.

XDD offers exceptional customer service with a commitment to responsive, transparent and timely communication to ensure clients remain informed throughout the entire discovery life cycle.  At XDD, communication is everything – because you need to know.  Engage with XDD, we’re ready to listen.