A requesting party seeking to compel discovery into the producing party’s document collection processes – sometimes called “discovery on discovery” – has always faced an uphill battle. Courts fear allowing discovery to continue indefinitely. Mere suspicion of deficient document production is insufficient; the requestor must proffer an “adequate factual basis” for its belief. Recently, the Southern District of New York found that such a showing is not made where the requestor produced only limited relevant unproduced emails and the requestor did not specify how its requested relief would remedy the alleged discovery defects.
Tagged: Manner of Production
On May 6, 2013, the U.S. Department of Justice’s (“DOJ”) Antitrust Division approved Constellation Brands Inc.’s (“Constellation”) and Crown Imports LLC’s (“Crown”) request to use predictive coding to determine which documents were most relevant and responsive to the DOJ’s requests. Constellation is a potential buyer of assets from the huge AB InBev-Grupo Modelo merger, and Crown is a joint venture between Grupo Modelo and Constellation. Reportedly, Constellation and Crown identified in excess of one million documents that would require manual review before being handed over to the Justice Department for scrutiny. After several seed sets were run using the automated data review software and compared manually, DOJ was satisfied that the predictive coding software would identify the most relevant documents and approved its use. As reported by the Wall Street Journal, the predictive coding software used by the parties was developed by kCura Corporation, a software vendor for many entities including DOJ.
Update of Proposed Rule Changes: A Universal Federal Sanctions Standard for the Failure to Preserve ESI Could be a Reality
The United States Courts’ Advisory Committee on Civil Rules (“the Committee”) has proposed various amendments to the Federal Rules of Civil Procedure that, if adopted, will profoundly affect the range and scope of sanctions a court may impose for failures to preserve electronically stored information (“ESI”). F.R.C.P. 37(e), which currently addresses sanctions in those instances, is one of several rules slated for amendment.
The International Organization for Standardization (“ISO”) is forming a new e-discovery committee tasked with the development of standards for e-discovery processes and procedures. The international standard “would provide guidance on measures, spanning from initial creation of [electronically stored information] through its final disposition which an organization can undertake to mitigate risk and expense should electronic discovery become an issue” according to a draft committee charter.
When a party voluntarily dumps data on its adversary without first conducting a meaningful privilege review, that party may be deemed to have waived any applicable privileges, particularly where it fails to timely argue that a privilege review would be too costly. That is the lesson of In re Fontainebleau Las Vegas Contract Litig., 2011 U.S. Dist. LEXIS 4105 (S.D. Fla. Jan. 7, 2011), a cautionary tale of the dangers of data dumping. After repeatedly failing to meet court-ordered production deadlines, in response to a subpoena, Fontainebleau Resorts, LLC (“FBR”) essentially dumped on the requesting parties (the “Term Lenders”) three servers containing approximately 800 GB of data–without first conducting any meaningful privilege review. Consequently, in its January 7th decision, the court granted the Term Lenders’ motion seeking a declaration that FBR waived its privilege claims. Had FBR litigated this matter differently, it might have protected its privileged information.