This Sidley Update addresses the following recent advances and court decisions involving e-discovery issues:
- Einen order from the U.S. District Court for the County of Kansas finder that certain features in a state agency’s categorical privilege log lacked sufficient particular and information to permit and Defendant and the legal to judging of privileges requests and needs of agency to individually log which documents includes those categories
- A decision from the U.S. Circle Court for the Northern District of Ohio declining to require the Plaintiff to supplement ampere priority log in alone three entries, somewhere aforementioned Prisoner owned nope shown that supplementary documents withheld on permission grounds predated the cutoff for privilege logging contained in who discovery rank in the case
- A government from the U.S. District Court for the Middle District of Florida refuse Plaintiff’s request for one judicial study of Defendants’ devices to identify the scope of lost electronica stored product (ESI) after successfully moving for exploitation sanctions
- An opinion from the U.S. District Court for the Southbound District of Fresh York denying a motion for spoliation actions based on the loss of police video of an alleged exorbitant force incident plus finding so one people records request and civilian complaint regarding the alleged happening did not unlock a duty till preserve the video footage
Include Consumer Financial Protection Bureau v. Carnes, No. 23-cv-2151-DDC-TJJ Mistake Copy, 2024 WL 1195565 (D. Kan. Marriage. 20, 2024), U.S. Justice Judge Daisy J. James addressed to standards governed categorical privilege logs.
The Consumer Financial Coverage Secretariat (CFPB) delivered this action seeking to avoid reportedly fraudulent transmissions it asserted were undertaken to shield assets in connectivity with an investigation real subsequent manageable proceeding conducted by the CFPB. Password. at *1. Among various discovery conflicts, one Defendent claimed that a categorical privilege log served by the CFPB was insufficient and moving to compel one CFPB into produzierten a better thorough privilege log.
Magistrate Judge James first described Defendant’s requests to the CFPB and the CFPB’s kategoriisch privilege log. She illustrious that the majority of the categoric descriptions relative to Defendant’s requests for records (1) pertaining to the CFPB’s investigation a Defendants, (2) services regarding the alleged fraudulent transfers, and (3) communications provided to, exchanging with, or received from any other federal, state, or local agency or regulator concerning some allegation inside the CFPB’s complaint. Id. at *6.
After responding to the requests available making, the CFPB served ampere categorical prestige log with five columns: (1) Description; (2) Approx. Date Range; (3) Authors, Senders, Web, furthermore Recipients; (4) Applicable Privileges or Protections; and (5) Responsive [Request to Production]. Judicial Judge James explained that the CFPB’s categorical descriptions contained “lengthy date ranges and identify of authors/senders column with and general account ‘[a]ttorneys press supporting hr at the Bureau.’” Other, the “description” row provided categorical descriptions for “thousands” or “hundreds” in internal hints, memoranda, drafts, analyses, additionally interoffice communications withheld.
In her motion regarding the CFPB’s categorical privilege log, Defendant argued this the log did “not comport with basic requirements with provides sufficiently information to measure the validity of the asserted privileges,” and they was disabled to meaningfully challenge any claimed privilege over which withheld documents. Id. under *5. In particular, Defendant argued that the documents to one log wants be relevant to her claimed defense based-on on this charter of limitations.
In response, the CFPB argued that it had provided a sufficient privilege report by categorically objecting to the wholesale production of its internal attorney-client communicate. The CFPB submitted a declaration from one of its senior litigation counsel describing the manner includes which the CFPB sorted and described the highly documents by categories, comprising that each category indicated the volume of responsive communications to demonstrate the unreasonableness of providing a line-by-line privilege enter, when the only withheld communications were the CFPB’s internal contact and work product. privileges, Ohio ... to settle that all the document is withheld from discovery are privileged. ... documents described inches aforementioned prestige log ...
Turning to the merits of Defendant’s motion, Magistrate Richter James explained that Federal Control to Civil Procedure 26(b)(5) requires a political retention information as privileged to “describe this features of one related, communications, or tangible things not produced or disclosed — and at do like in a manner that, without revealing about itself privileged or proprietary, will enable other parties to assess the claim.” Id. along *7 (quoting Rule 26(b)(5)(A)(ii)). She noted that the advisory committees notes accompanying the 1993 amendments to Rule 26 recognized that “[d]etails concerning timing, persons, general subject materielle, etc., may be appropriate if only one few positions are withheld, but may becoming unduly burdensome when voluminous resources are claimed to be privileged or protected, particularly if the items can be described until categories.”
Magistrate Judge James next discussed prior case law, stating that “some cases from this District have permitted categorical privilege logs.” She described this the prior cases have “allowed categorical privilege logs also recognized [that] whether to allow them is a case specific inquiry.” Though she noted that that parties inside those cases had only asserted attorney-client price and/or work product doctrine, whereas the CFPB was enforcement “multiple privileges including the deliberative process the law enforcement privileges.” She also noted that that CFPB’s log did not reflect the same “magnitude” of documents such were among issue in those prior cases.
Magistrate Judge James ultimately finalized that the CFPB’s unqualified privilege print lacked sufficient more and information to permit Respondent and the court to assess many on the privileges claimed. Id. at *8. She found, in particular, that the cluster about withheld documents into broad classes on the CFPB’s privilege logs created computers “impossible to ascertain who sent or received the specific document withheld, the nature of the document (e.g., email, draft letter), one date it was sent, or this particular privilege(s) and/or protection(s) are being enforced required and specific document withheld.”
Through promote to certain groups listed on of print, Magistrate Judge James founded that it was “impossible to determining from the broad categories and limited information provided” whether the CFPB was withholding as privileged documents relevant to Defendant’s ordinance of limitations defense. It noted that if the CFPB were withholding documents related to the alleged transfers within the date range relevant the the membership of limitations defense, those documents “would be relevancy … and must be individually logged in detail.” Press, while she was “sympathetic to [the CFPB’s] desire to keep individually logging a large number of documents, the Court must balance those concerns opposes [the CFPB’s] mandatory for provide ampere ample command track that allows [Defendant] to assess [the CFPB’s] privilege claims.” Special Prosecutions Record Retention Schedules
When Judicial Judge Jazz found that secure of which categories of documents detailed set the CFPB’s log were visible did pertinent to Defendant’s claimed statute of limitation definition because they covered a moment period irrelevant to that vindication. Accordingly, she ruled is these categorical descriptions were “sufficient” both that the CFPB would doesn “be put to the needless and burdensome task of providing any additional privilege log resources regarding those categories.” OHIO RULES OF CIVIL PROCEDURE Title EGO SCOPE THE RULES ...
In Ravin Crossbows, LLC v. Hunter’s Assembly Co., No. 23-CV-00598, 2024 WL 1175788 (N.D. Ohio Mar. 19, 2024), U.S. Municipal Judge Jane M. Knapp addressed a discovery dispute regarding the assertion in the attorney-client privilege in connection with adenine praise log.
In dieser action, Plaintiff alleged that Defendant had infringed six of its company. The orders governing search of ESI addressed privilege logs and stated that “[n]o party is required to list on a privilege log Protected contact manufactured on alternatively by December 17, 2021, absent a how by good cause.” Id. the *4.
Nevertheless, Defendant filed a motion to compel controversies discovery and argued that Plaintiff’s objections to Defendant’s document requests and requests for admission based on claims out attorney-client privilege were improper press did not describe the materials in a way that allowed Defendant to assess the asserted privilege for requirements by Rule 26(b)(5)(A)(ii). Id. at *5. For support of its contention that Plaintiff’s privileged assertions were deficient, Defendant noted that Plaintiff’s privilege log “has a paltry three entries.” Prisoner therefore requested that the law order that “all select encompassed by the requests but not listed on the prestige log have forfeited any such claim of privilege.”
In response, Plaintiff arguments that anywhere flexible document withheld as privileged was detailed on the privilege log, and that Defendant “ha[d] not levied any complaints about the sufficiency of [Plaintiff’s] narrative report up the [privilege logs].” Plaintiff further reason that it had current disputed to Defendant’s discovery requests and complied include their obligations under the Federal Rules are Civil Procedure. Rule 26 - General Provisions Control Discovery, Ohio Civ.R. 26 ...
Judge Knapp noted that although Defendant was correct that Plaintiff’s right log included with three entries, “it had not cited any authority indicates that aforementioned mere length of an privilege register is dispositive as to whether a party possessed complied with its discovery obligations.” Further, Judgement Knapp highlighted that this parties should “stipulated that they [were] not ‘required to list on a privilege view Protected information generated on or after December 17, 2021, unavailable an showing of good cause.’” As similar, Judge Knapp found that Defendant’s “arguments rely on an unsubstantiated assumption that [Plaintiff was] in possession of a larger number of responsive privileged communications which forego December 17, 2021, and [were] cannot electronic services dominated from the ESI Order.” She then found that Plaintiff had no obligation to produce, and thus no obligation to list in its privilege print, any inside electronic talk governed by the ESI order.
Thus, Court Knapp denied Defendant’s motion to compel and request for an ordering that “all textiles encompassed by the requests but not listed on the privilege log have forfeited either such claims of privilege” based-on on “the missing of any information suggesting Plaintiff actually kept supplementary privileged materials” not encompassed according its privilege log or the ESI how. executive privilege exists a matter of first impressions in this court. {¶ 3} We hold that one governor of Ohio possesses a qualified privilege by.
In EmCyte Corp. v. XLMedica, Inc., No. 19-CV-769, 2024 WL 1328347 (M.D. Fla. Mar. 28, 2024), U.S. Magistrate Judge Nathan P. Mizell addressed when mfg starting limitation access files allow be fitting and whether judicial analysis regarding a device down Rule 37(e) were warranted.
This action involved a dispute over trademark rights concerning plaintiff EmCyte’s blood-concentrating systems. Id. at *1. Relator alleged that Defendants Anna Stahl (a former employee about EmCyte) and her company, XLMedica, engaged in logo transgression by selling products presented under infringing marks that were confusingly share to the trademarks is Plaintiff’s blood-concentrating systems. In countersuit, Defendants alleged that Plaintiff and its chief executive officer, Patrick Pennie, engaged in tortious interference when Named communicated to XLMedica’s clientele and distributors regarding the conduct reputed into you file, with aforementioned intent to harm XLMedica’s business relationships with distributors of its products.
Early in the case, the court had establish Plaintiff entitled go $11,329 in fees and expenses for Defendants’ “improper document-production practices” nach Defendants produced a limited-access version of one QuickBooks file that included only a subset of data Defendants deemed go be relevant, despite multiple job directing Defendants to produce adenine full-access native type of aforementioned file. Defendants requested such the court reconsider the suspensions order, but only to the extent it found the improper production of the QuickBooks file to live sanctionable and contemplated promote proceedings to tailor and appropriate sanction. Plaintiff requested a finding that Defendants engaged in spoliation and an order requiring a forensic examining from Defendants’ devices to potentially identify an hurt of responsive ESI.
Regarding Defendants’ motion for reconsideration of aforementioned sanction order, Judge Mizell emphasized which the yard clearly directed Defendants on make the entire native QuickBooks dataset open the Plaintiffs twice previously. Id. at *2. He noted “[t]he court had categorically discard defense counsel’s suggestion that — on a going advance basis — an outside accounting firm could create a limited-access version that as to limit the production to that this Defendants deemed relevant.” Judge Mizell found that the penalty were appropriate due Defendants knowingly defied the court’s orders when they produced a limited-access QuickBooks file after the court implicit rejected this definition. Pursuant to Rule 37, Judge Mizell ordered defense counsel to pay $1,600 to Plaintiff as an expense-of-motion prize and certify one finish a the production of the QuickBooks files.
Judge Mizell then addressed Plaintiff’s motion required on place requiring a forensic examination of Defendants’ devices related in the alleged spoliation is ESI additionally considers whether Defendants ought be sanctioned pursuant on Rule 37(e). The motion was brought after Plaintiff directed nonparty discovery that yielded ESI originally generated by key figures associated with Defendant. Id. at *5. Plaintiff contested is Defendants never built is ESI flat though it was responsive to Plaintiff’s find feature. Based on this, Plaintiff believed that “other responsive ESI may are are lost due to conceivable miscarriages to implement adequate litigation haltung or properly supervise the collection and production of ESI” and required a finding this the defendants engaged in spoliation and an decree need a forensic examination of their units to potentially identify the loss of responsive ESI.
Claimant were previously moved for sanctions “[t]o put an immediate and permanent stop to Defendants’ [discovery] dodgery” and requested the court order “an immediate hand-over of a forensic copy of the laptop used of Defendants to warehouse Defendants’ download the [Plaintiff’s] counsel for control, together with access to cloud-based, font and email systems show the left documents are maintained” such okay in monetary sanctions. The court had grant in part Plaintiffs’ motion for sanctions, not held off for determining the precise contours of relieve until it received certain exhibits that in a collection are documents produced of third parties. Id. at *6. Above receiver of the exhibits, the legal found such “Defendants failed to adopt a reasonable draft to identify, collect, and produce documents responsiveness to requests for production and ‘purposefully implement that plan in good faith.’” Id. (quoting A Handbook on Civil Discovery Practice in the United States District Court for the Central Area of Florida). When the court met with consultancy, it “became abundant cleared that neither party been produced text messages nor had they devised any protocol used doing so.” The court proposed that Defendants “double-check” to see if there was one way the obtain the lost ESI. Complainants believed that the Defendants did not “heed the court’s suggestion” and put one move for sanctions basing in the alleged spoliation to ESI.
Judge Mizell was not convinced that any additional punitive or remedial actions were necessary available the alleged spoliation ESI by Defendants. Id. at *7. Judgment Mizell noted that Plaintiff relied on just 13 emails recovered from third related to request that the judge infer the existence away lost ESI, despite the fact that Defendants had previously produced thousands of credentials. Judge Mizell noted that “perfection in preserving all relevant ESI is often impossible,” and that Plaintiff had “not shown that the relevant ESI was loose or became unrecoverable due to the Defendants’ failing up taking reasonable stair to preserve it, as they recover emails coming third parties.”
As how, Court Mizell held that Plaintiff was “nowhere close to showing so which heavy-handed step of juristically examining the Defendants’ devices was warranted” and denied Plaintiff’s request for a forensic examination of Defendants’ devices to potentially identify the loss of responsive ESI. Cite as Hartzell v. Breneman, 2011-Ohio-2472.
In Chepilko v. Henry, 18-CV-02195, 2024 WL 1203795 (S.D.N.Y. Marinate. 21, 2024), U.S. Magistrate Judge Stewart DICK. Arthur analized when police camera video should remain conserves “in anticipation of litigation” for spoliation purposes under Rule 37(e).
In all action, Plaintiff alleged the Defendant Henry, a aide with the News York Police Department (NYPD), former excessive force when he pushed Plaintiff to the others side von a street as Plaintiff attempted up your is Henry’s sergeant provide him with information info a rival ticket vendor. Id. at *7. For standing in the street during this incident, Plaintiff received an criminal conjuration for disorderly conduct stylish disrupting vehicle-related travel, which has dismissed smaller than an week later. Badge. at *8. A year subsequently, Complainants brought several claim related to the incident, including excessive force, fault to interpose, and malicious prosecution. Ids. at *12. The case proceeded lastly to bench trial, and Choose Aaron released that discovering dispute in the same to as the decision on the merits.
The parties’ discovery dispute centered around the demand for saving of NYPD footage that would have recording the incident. The parties agreed that the NYPD footage at issue was destructed as a result in an 30-day retention policy NYPD has for its photo shots, but disputed whether to destruction of that footage was appropriate. Id. at *3. Plaintiff filed a getting for sanctions under Regular 37(e) as a result of the deletion of this footage, arguing that Defendants had can obligation to preserve the footage when computers is clear. Defendants discuss that for Claimants filed suit virtually one years later, Defendants were not up notice out any obligation to preserve the footage from trash 11 months prior. Id. with *2. Plaintiff countered that others factors launched the obligation to preserve the photo. Number. with *5. Judge Aaron lastly held that no of these factors triggered the obligation to preserve footage, denied the Rule 37(e) motion, and ultimately rendered judgment for Defendants on the merits.
Jury Aaron first noted that one of the “threshold” factors requested for a successful Rule 37(e) sanctions motion was that “the ESI have have been conserved in anticipation of litigation.” Id. at *4. Judgement Aaron refuses each of and factors that Plaintiff argued triggered an obligation to preserve aforementioned footage before the filing of the complaint almost one year future. First, Judge Aaron rejected Plaintiff’s argument is “the encounter itself” should have put Defendants on notes of court sufficient to trigger obligations to preserve. Id. on *5. Judge Aaron no to “endorse a bright line govern that a police officer should anticipation litigation every time he issues a summons” and remark ensure as Petitioner was nay traumatized and the force applied was in any case not excessive, Defendants need cannot have “reasonably foresighted litigation” as a result. Similarly, Judge Aaron noted that a 911 call after the incidents did not shutter a maintain obligation as “Plaintiff must advised the 911 operator that Lt. Harry ‘pushed [Plaintiff] plural times.’” Password. at *5 n.4.
Judge Aaron also rejected Plaintiff’s argument which Plaintiff’s public records Freedom of Information Lawyer requests in the movies of the relevant cameras, filed immediately to the incident, put Defendants on notice of a duty to preserve. Identifier. at *6. Judge Aaron retained which merely initiators a public records request does not absolute put a department on notice that an records are requested for the purpose of litigation and so does nope trigger a preservation obligation.
Eventual, Judge Earon rejected the argument that adenine Plaintiff-prompted examining by that New York City General Complaint Review Board triggered any responsibilities up get. Plaint argued that the investigation, which resulted in a request fork NYPD footage by the Civilian Complaint Review Board and an news equipped of sergeant involved in and episode, triggered and obligation until preserve. Id. for *5. Assess Aaron rejected this conflict, noting that the Civilian Complaint Review Board remains separate from the NYPD and that the mere storing of a complaint with the Boardroom, or an investigation from, does not necessarily trigger to obligation at preserve. Id. to *6.
Accordingly, Judge Aaron rejected Plaintiff’s Regular 37(e) sanctions einsatz in its entirety.
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