E-discovery trends in 2022 - Reuters

December 16, 2022 - With 2022 successful the books, it is an opportune clip to measure the trends successful e-discovery during the year. Sanctions for preservation and accumulation failures proceed to diagnostic prominently. Noteworthy successful cardinal 2022 sanctions cases, courts called retired a deficiency of competence of attorneys successful handling e-discovery matters. Failures to sphere and nutrient substance messages from mobile devices continued to beryllium an e-discovery sore point.

Workplace collaboration tools person progressively go the taxable of discovery, and of sanctions. Possession, custody, oregon power was astatine contented successful an important e-discovery case. And, finally, the Supreme Court took connected a lawsuit to determine the due trial to find whether a dual-purpose connection is privileged.

Sanctions and e-discovery competence

As successful anterior years, cases involving sanctions for failing to sphere and nutrient applicable and responsive electronically stored accusation (ESI) person continued to basal out. The astir salient cases successful 2022 included Red Wolf Energy Trading, LLC v. Bia Capital Mgmt., LLC, _ F. Supp. 3d _ , No. 19-10119, 2022 WL 4112081 (D. Mass. Sept. 8, 2022), successful which the tribunal issued lawsuit terminating sanctions against the defendants. While the tribunal noted that the defendants had delayed producing and failed to nutrient cardinal documents for 3 years, the last straw was defendants' nonaccomplishment to nutrient galore Slack messages, including "smoking gun" communications.

Competence — or, successful this case, the deficiency thereof — was a peculiarly noteworthy contented successful Red Wolf Energy Trading. Defendants asserted that a advisor successful Kazakhstan they had retained, who had nary acquisition successful collecting Slack messages, was astatine fault. The court, however, pinned the blasted connected the defendants. "At a minimum, [defendants'] determination to utilize an unpaid novice successful Kazakhstan to behaviour its hunt for Slack messages, alternatively than an experienced vendor successful the United States astatine a humble cost, ... was successful reckless disregard of [their] duties nether Rule 26 and to obey tribunal orders."

The lawsuit highlights the superior consequences that whitethorn befall litigants who neglect to prosecute capable resources to identify, collect, and nutrient modern forms of ESI, which tin airs caller and hard challenges.

In a lawsuit definite to drawback the attraction of attorneys, the tribunal in DR Distributors, LLC v. 21 Century Smoking, Inc., No. 12 CV 50324, 2022 WL 5245340 (N.D. Ill. Oct. 6, 2022), allocated fractional of a $2.5 cardinal sanctions grant to 2 of the sanctioned defendant's idiosyncratic counsel (approximately $1 cardinal to 1 and $250,000 to the other). The tribunal had antecedently granted plaintiffs' question for sanctions owed to the defendant's failures to nutrient responsive emails and chats. SeeDR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839 (N.D. Ill. 2021).

Again, deficiency of competence was a cardinal contented successful the case. The tribunal commented that "through a bid of missteps, misdeeds, and misrepresentations, Defendants and the erstwhile defence counsel find themselves looking down the tube of a sanctions question Howitzer." Defense counsel's missteps included failing to put for the postulation of applicable and responsive web email, failing to guarantee that auto-delete was suspended connected email accounts, mostly failing to competently enactment with the e-discovery vendor and oversee its work, and retaining an e-discovery vendor that they had antecedently accused of incompetence.

In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig., 341 F.R.D. 474 (S.D.N.Y. 2022), is different sanctions determination that garnered a batch of attraction successful 2022. In a elaborate and cautiously analyzed decision, the tribunal held that Keurig failed to sphere applicable ESI connected 25 laptop machine hard drives of custodians, 9 of which were outright lost. Nevertheless, the tribunal recovered that plaintiffs lone suffered prejudice from defendants' nonaccomplishment to nutrient 3 of the hard drives, and that plaintiffs had failed to found by wide and convincing grounds that the preservation failures were intentional (thus avoiding the astir terrible sanctions). The tribunal imposed monetary sanctions and ruled, however, that plaintiffs could contiguous grounds to the assemblage astatine proceedings regarding Keurig's nonaccomplishment to sphere the 3 hard drives.

Text messages and mobile devices

Failures to sphere substance messages connected mobile devices continued to beryllium the taxable of galore decisions. For example, successful Columbia Pictures Indus., Inc. v. Galindo, No. 2:20-cv-03129, 2022 WL 3009463 (C.D. Cal. Jun. 14, 2022), study and proposal adopted, 2022 WL 3369629 (C.D. Cal. Aug. 15, 2022), the tribunal granted monetary and lawsuit terminating sanctions against a suspect who continued to nonstop applicable Telegram messages acceptable to auto-destruct aft his work to sphere attached.

Similarly, successful teamLab Inc. v. Museum of Dream Space, LLC, No. 2:19-cv-06906, 2022 WL 1590746 (C.D. Cal. Mar. 10, 2022), the tribunal recovered that the defendants' CEO spoliated applicable messages connected the WeChat and Telegram messaging applications by failing to suspend auto-delete functions and by taking down a WeChat connection channel, which resulted successful the nonaccomplishment of each messages connected the channel.

Likely the astir celebrated lawsuit successful 2022 involving the spoliation of substance messages was Schnatter v. 247 Group, LLC, No. 3:20-cv-00003, 2022 WL 2402658 (W.D. Ky. Mar. 14, 2022), owed to the engagement of a nationalist figure. The tribunal imposed sanctions connected the plaintiff, the laminitis and erstwhile president of Papa John's Pizza, for failing to sphere applicable substance messages and different ESI from respective mobile phones that helium used.

In particular, the plaintiff discarded 4 compartment phones and had 2 different phones imaged (i.e., a bit-by-bit transcript of their information was made) astatine peculiar points successful clip but failed to sphere substance messages and different grounds that were apt generated oregon received connected the phones aft they were imaged. Further, helium did not cease his signifier of deleting idiosyncratic substance connection strings aft receiving a ineligible clasp announcement from his counsel. The tribunal ordered monetary sanctions and held that the defendants could contiguous grounds of the spoliation to the assemblage astatine trial.

Workplace collaboration tools

Workplace collaboration tools specified arsenic Slack, Teams, and Google Workspace are progressively becoming the taxable of find and, consequently, of tribunal decisions. In Drips Holdings, LLC v. Teledrip LLC, No. 5:19-CV-02789, 2022 WL 3282676 (N.D. Ohio Apr. 5, 2022), study and proposal adopted successful part, rejected successful part, 2022 WL 4545233 (N.D. Ohio Sept. 29, 2022), the tribunal granted a mandatory adverse inference assemblage acquisition owed to the defendants' spoliation of responsive Slack messages.

After the work to sphere had attached, the defendants modified Teledrip's Slack retention settings from indefinite to 7 days. Doing truthful resulted successful each applicable communications connected Teledrip's Slack level being deleted.

In Mobile Equity Corp. v. Walmart Inc., No. 2:21-cv-00126 (E.D. Tex. Jan. 4, 2022), ECF No. 114, the tribunal ordered the suspect to nutrient applicable and responsive messages from up to 40 Slack channels believed to incorporate applicable information. In Red Wolf Energy Trading, discussed above, the tribunal ordered the accumulation of Google Workspace and Slack documents, and sanctioned the defendants for their failures to nutrient documents from those sources.

Posession, custody oregon control

Whether a enactment is deemed to person possession, custody, oregon power of — and truthful a work to sphere — applicable ESI stored successful the systems oregon devices of non-parties continues to beryllium an important contented successful e-discovery. In In re Pork Antitrust Litig., No. 18-cv-1776, 2022 WL 972401 (D. Minn. Mar. 31, 2022), the tribunal held that suspect Hormel Foods did not person possession, custody, oregon power of substance messages connected employees' idiosyncratic mobile devices. The lawsuit progressive allegations that Hormel conspired to bounds the proviso of pork and fixed prices, carried retired by the speech of accusation involving competitively delicate information.

The tribunal rejected the plaintiffs' statement that Hormel's bring-your-own-device argumentation provided it with a ineligible close to the substance messages due to the fact that the argumentation did not assistance Hormel explicit ownership rights to the messages. The tribunal besides held that portion Hormel could inquire its employees to crook implicit their substance messages, it did not person the applicable quality to necessitate them to comply.

Privilege

Finally, the Supreme Court granted certiorari in In re Grand Jury,No. 21-3197, to reappraisal whether the attorney-client privilege protects against disclosure of dual-purpose communications — i.e., those involving some ineligible and non-legal purposes — wherever obtaining the ineligible proposal of an lawyer was a important intent of the communication.

Fourteen amici curiae filed briefs supporting the petitioner's statement that the Court should cull the azygous superior intent trial that the 9th U.S. Circuit Court of Appeals applied successful the lawsuit (the azygous superior intent trial provides that a connection is lone privileged if its sole superior intent was for receiving oregon rendering ineligible advice). One of their arguments is that modern communications are not constricted to topic-specific memoranda oregon discrete letters and emails, but alternatively they are much often strings of messages connected email, chat, oregon substance connection platforms, collaboration platforms, and different contexts (such arsenic comments embedded successful an physics document) wherever ineligible proposal is requested and received interwoven with different contented that is not ineligible successful nature. A determination is expected aboriginal adjacent year.

Gareth Evans is simply a regular contributing columnist connected e-discovery for Reuters Legal News and Westlaw Today.

Opinions expressed are those of the author. They bash not bespeak the views of Reuters News, which, nether the Trust Principles, is committed to integrity, independence, and state from bias. Westlaw Today is owned by Thomson Reuters and operates independently of Reuters News.