e-Discovery: An Overview

PREPARED BY

Jason R. Waters, Esq. Kathleen H. Warin, Esq.

September 20, 2017

E-DISCOVERY

ESI Case Law Update2017

CONTENTS

1 Introduction

1 Preservation/Spoliation

5 Form of Production

6 Cooperation

8 Search Methodologies and the Use of Predictive Coding

9 Social Media

11 Objections to Document Demands

13 Duty of Competence/Ethical Obligations

15 Cross-Border Discovery (and Possession, Custody or Control)

17 Conclusion

18 Wilson Elser Offices

CONTRIBUTORS

Gregory BautistaDaniel M. BraudeJonathan E. MeerJana A. FarmerDaniel E. LustJeremy T. MerkelChristopher J. SeusingTina C. Ma

Ryan Fennell, Law Clerk

EDITOR

Eric G. Cheng

Wilson Elser, a full-service and leading defense litigation law firm (www.wilsonelser.com), serves its clients with nearly 800 attorneys in 34 offices in the United States and one in London. Founded in 1978, it ranks among the top 200 law firms identified by The American Lawyer and is included in the top 50 of The National Law Journal’s survey of the nation’s largest law firms. Wilson Elser serves a growing, loyal base of clients with innovative thinking and an in-depth understanding of their respective businesses.

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2017 ESI Case Law Update

INTRODUCTIONSince the December 1, 2015, amendments to the Federal Rules of Civil Procedure, we continue to see an increasing body of decisions that address e-Discovery on a more sophisticated level. This affirms our view that the practice of law has evolved with the integration of technology and information governance in everyday life. While the topics of preservation and cooperation remain familiar to those who are experienced in the practice of e-Discovery, the law continues to develop in those areas.Given the number of high-profile decisions renderedwith clear reasoning by the courts, the courts clearlyexpect more from the practitioners. Attorneys followingthe old-school “business as usual” adversarial approachto litigation are placing themselves at greater risk ofreprimands, if not outright sanctions, by the courts.

PRESERVATION/SPOLIATIONA party’s duty to preserve documents and other electronically stored information (ESI), while not typically a high-profile topic, made headlines in 2016. From the National Football League (NFL) “Deflategate” rulings to the invalidation of New York’s stop-and-frisk policies, parties continue to be held accountable for failures to comply with preservation obligations. To enforce these obligations on litigants, courts are able to impose any of several different types of sanctions. However, in federal courts whether and to what an extent a party can or should be sanctioned will depend on the court’s analysis under the revised framework of Rule 37(e) of the Federal Rules of Civil Procedure (FRCP).

At the outset, Rule 37(e) prescribes a three-part test to determine whether sanctions are warranted in the event ESI is lost or destroyed:

nDid the allegedly spoliated ESI constitute evidence that should have been preserved?

nWas the allegedly spoliated ESI lost because a party failed to take reasonable steps to preserve it?

nCan the allegedly spoliated ESI be restored or replaced through additional discovery?

If the answer to any of the questions is “no,” the analysis ends and no sanctions or curative measures will be imposed under Rule 37(e). (However, see below regarding the inherent authority of courts to sanction for general discovery misconduct that may involve ESI spoliation.) On the contrary, if each of those questions can be answered affirmatively, the court will proceed to analyze the facts under subsection (e)(1) if there is a finding of “prejudice” or under subsection (e)(2) if there is a finding of “intent to deprive.” See Rule 37(e); Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., 2016 WL 1105297 (S.D. Fla. Mar. 22, 2016). Depending on a court’s findings under subsections (e)(1) and (e)(2), sanctions can range from being “no greater than necessary to cure the prejudice” to dismissal of the action or entry of default judgment.

In Stinson v. City of New York, 2016 WL 54684 (S.D.N.Y. Jan. 5, 2016), the Southern District of New York found that the City did not comply with its preservation obligations in class-action litigation challenging the New York Police Department’s “stop and frisk” policies. The Court held that the City’s issuance of a litigation hold three years after the lawsuit was filed was inappropriate and that because of the existence of a 2008 lawsuit involving the same “stop and frisk” policies, the City’s obligation to preserve records arose prior to the May 2010 filing of the Stinson lawsuit.

The City’s routine document destruction policies continued during the first three years of the litigation, which the Court opined resulted in the destruction of emails and documents likely relevant to the plaintiffs’ claims. The Court in Stinson rejected the City’s argument that the plaintiffs’ demands were overly broad, finding that “the Plaintiffs’ putative overbroad demands do not excuse the City’s failure to issue a litigation hold, to properly supervise its implementation, or to suspend

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document retention policies that would foreseeably lead to the spoliation of evidence.” Id. at 5. Despite the City’s failure to preserve relevant ESI, the Court refused to issue the most severe adverse inference requested by plaintiffs, finding that the plaintiffs “are entitled to an inference that helpful evidence may have been lost, not relief from their obligation to prove a case.” Id. at 8.

The Tom Brady “Deflategate” saga thrust preservation into the spotlight and brought discussion of preservation obligations mainstream. In NFL Mgmt. Council v. NFL Players Ass’n., 2016 WL 1619883, 18 (2d Cir. Apr. 25, 2016), the Second Circuit discussed whether Brady’s destruction of his personal cell phone during the NFL’s investigation of his alleged involvement in a scheme to use deflated footballs during the 2015 AFC Championship Game warranted an adverse inference from an arbitrator. The NFL argued that Brady’s destruction of his cell phone permitted the NFL Commissioner to draw an adverse inference against Brady that he participated in the ball deflation scheme. The NFL Players Association, on behalf of Brady, argued that he had no notice that destruction of his cell phone would be at issue in the arbitration, and further that

his four-game suspension could not be sustained on grounds that he obstructed the NFL’s investigation. The district court agreed with the NFL Players Association’s position. However, the Second Circuit reversed the district court and upheld the adverse inference, reasoning that it “is well established that the law permits a trier of fact to infer that a party who deliberately destroys relevant evidence [while] the party had an obligation to produce did so in order to conceal damaging information from the adjudicator.”

In Cohn v. Guaranteed Rate, Inc., 2016 WL 7157358 (N.D. Ill. Dec. 8, 2016), the District Court of the Northern District of Illinois reaffirmed the generally held principle that a plaintiff’s duty to preserve typically arises prior to the commencement of litigation. In that case, the plaintiff filed suit against her former employer in November 2014 related to a business relationship that went sour. Prior to filing suit, and starting in November 2013, the plaintiff sent a series of emails to the former employer threatening to bring suit. During the litigation, the employer sought discovery of the plaintiff’s communications with the employer’s competitors prior to her separation from employment, which predated the filing of the lawsuit. The plaintiff responded that she had deleted emails from that time period and that the defendant was not prejudiced since many of those emails were produced as the result of third-party discovery. However, the Court found that not only did the plaintiff’s duty to preserve arise at the time she threatened suit against the former employer but also that her conduct constituted bad faith, which negated any need for a finding of prejudice. Central to the Court’s decision was evidence that the plaintiff instructed a subordinate to shift certain communications from her work to her personal email account, and that she provided her employer’s competitors with information that she recognized at the time as confidential, acting against her attorney’s advice. While the Court did not grant the most extreme sanctions of dismissal or default requested by the defendant, it did compel the plaintiff to turn over access to her entire personal email account to the defendant.

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Despite the attempts by the Advisory Committee on Rules of Civil Procedure to foreclose “reliance on inherent authority or state law,” some courts may nevertheless invoke sanctions under inherent authority. However, a court’s reliance on such authority may vary by jurisdiction and depend on a number of different factors, including, among other things, the case precedent on topic in the jurisdiction, the actions of the parties and even the discretion of the court. For example, a decision from the Southern District of New York issued a clear warning that the inherent power of the court is not restricted by the changes to Rule 37(e), and upon a showing of bad faith, parties may be sanctioned even when the rule would not otherwise apply. CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488 (S.D.N.Y. 2016); c.f., Living Color Enterprises (“Clearly, when confrontinga spoliation claim in an ESI case, a court must firstlook to newly amended Rule 37(e) and disregard priorspoliation case law based on ‘inherent authority’ whichconflicts with the standards established in Rule 37(e).”)A key issue in the case centered on emails provided bythe plaintiffs in PDF format. However, the defendantsdiscovered a discrepancy between those copies and theones they had produced to the plaintiffs in discovery.To investigate this issue, the defendants requestedthe emails in native format and enlisted an expert toconduct a forensic analysis of the files. The defendants’expert was then able to determine that each emailcontained two versions within the same production: oneoriginal copy that had been deleted and the alteredversion that was actually produced by the plaintiffs.

In response to the defendants’ motion for spoliation sanctions, the plaintiffs argued that there had been no destruction or loss of any evidence, and there certainly had not been both (1) loss of evidence and (2) “such evidence cannot be restored or replaced” as required by Rule 37.… Put simply, though there may be an evidentiary dispute as to which email address versions are more accurate, “Defendants’ [sic] have not been deprived of any information or potential evidence.” Cat3.

Rejecting these arguments, Judge James C. Francis IV held that the plaintiffs had intentionally altered the emails and that remedies were available to the defendants either under Rule 37(e)(1), (e)(2) or, in the event Rule 37(e) did not apply, under the court’s inherent power. Notwithstanding the Advisory Committee’s

note that the new rule “forecloses reliance on inherent authority or state law to determine when certain measures should be used,” Judge Francis also held that where “exercise of inherent power is necessary to remedy abuse of the judicial process, it matters not whether there might be another source of authority that could address the same issue.” Although a particularized showing of bad faith would be necessary in the event Rule 37(e) did not apply, “[the court] could nevertheless exercise inherent authority to remedy spoliation under the circumstances presented.” In keeping with the Advisory Committee’s notes, however, Judge Francis recognized that the important goals of Rule 37(e) are to avoid unnecessarily drastic sanctions and to impose only those measures necessary to cure the prejudice. As a result, the defendants’ motion was denied to the extent it sought dismissal of the entire action, but granted such that the plaintiffs were (1) precluded from relying on the subject emails and (2) ordered to pay the attorney’s fees and costs incurred to the defendants to establish spoliation and to obtain relief.

While courts continue to levy severe sanctions when finding prejudice or intent in the destruction of data

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after the duty to preserve arose, it is important to remember that not every instance of lost ESI will be sanctionable or warrant curative measures − even where it may have been appropriate under the old Rule 37.

In Living Color Enterprises, for example, the Southern District of Florida denied a plaintiff’s motion for sanctions despite the defendant’s admitted failure to preserve text messages in his possession. In response to the plaintiff’s motion for sanctions, the defendant explained that “he has always used the cell phone feature that automatically deletes text messages after 30 days and that he, admittedly, neglected to disable the feature when the lawsuit was filed.” As a result, the defendant was unable to produce any text messages between himself and several other parties involved in the case. In addressing the threshold questions presented under Rule 37(e), the Court determined that (1) certain text messages should have been preservedbut were deleted, (2) the defendant failed to takereasonable steps to preserve those messages and (3)deleted messages could not be restored or replacedthrough additional discovery. Accordingly, the Courtturned to an evaluation of the facts under Rule 37(e)(1)and (e)(2). Over the plaintiff’s protests to the contrary,the Court determined that either no prejudice existedor, if it did, it was so minimal that it was not necessary totake measures to cure it. Additionally, the Court foundthat there was no direct evidence of either an intentto deprive or bad faith. While the defendant clearlyhad an obligation to preserve the messages, the Courtconcluded that his actions were merely negligent and,therefore, sanctions were improper under Rule 37(e).

Similarly, in Nuvasive, Inc. v. Madsen Med., Inc., 2016 WL 305096 (S.D. Cal. Jan. 26, 2016) the Southern District of California reversed an order that granted the defendant’s motion for an adverse inference instruction that would have allowed, but not obligated, the jury to infer that lost ESI was unfavorable to the plaintiff. Although the old Rule 37 was in place at the time the Court originally granted the defendant’s motion, the trial was scheduled to take place in February 2016 and the adverse inference instruction had not yet been issued. With the new rule

being applied at trial, the plaintiff filed a motion for an order vacating the sanction. In granting the plaintiff’s motion, the Court explained that its prior orders made no finding of any intentional failure to preserve or to otherwise deprive the defendant of the ESI at issue. Rather, the Court found that the plaintiff had simply failed to enforce compliance with a litigation hold and an adverse inference would be improper under the revised Rule 37(e). Instead, the Court allowed both parties to present evidence regarding the lost ESI with an instruction that the jury may consider any such evidence in addition to the other evidence presented in the case.

Although Rule 37(e) provides a more focused framework and better guidance on whether sanctions would be appropriate in a particular case, it nevertheless requires a highly fact-sensitive analysis that may vary from jurisdiction to jurisdiction. As the case law concerning preservation, spoliation and sanctions continues to develop, parties should bear in mind that courts around the country have routinely emphasized, consistent with the Advisory Committee notes, that “perfection” is likely an unattainable goal in discovery − particularly where large quantities of data are at issue. Rather, the rules only require parties to act in good faith and to take “reasonable steps” to identify and preserve relevant ESI.

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FORM OF PRODUCTION Selecting the proper form of production for ESI is a crucial aspect of discovery that remains a point of contention among litigants. While the amendments to the Federal Rules of Civil Procedure aimed at resolving some confusion surrounding common issues in e-Discovery, the rapid evolution of technology has created new challenges for responding to e-Discovery demands.

A case from the Northern District of Georgia raised the issue of when ESI should be produced in native format or PDF format. Mitchell v. Reliable Sec., LLC, 2016 U.S. Dist. LEXIS 76128 (N.D. Ga. May 23, 2016), involved a civil rights lawsuit in which the plaintiff alleged pregnancy discrimination by her employer and requested that the defendant produce all relevant ESI in native format. The defendant objected to this request on the basis that it would cost an extra $3,000 to process and produce the 3GB of ESI in native format over the cost of PDF format. The plaintiff contended that producing the ESI in native format was necessary for two reasons: First, the emails and spreadsheets supporting the defense theory are susceptible to manipulation, so producing them in native format with retention of metadata is necessary. Second, the defendant’s estimate of the additional costs to produce native files was insufficient because it did not articulate how it arrived at the estimated cost, corroborate its estimate with an ESI expert or consider low-cost options for ESI production.

The court ultimately ruled in favor of the plaintiff. Citing Rule 26(b)(2)(B), the court found that the defendant did not make an adequate showing that production of the native files would be cost-prohibitive. The court added that in the context of a pregnancy discrimination suit, the public value of allowing the plaintiff to verify the validity of the defendant’s documents far outweighed the $3,000 cost of producing the documents.

Indeed, attempting to withhold metadata in ESI does not seem to bode well for parties. In Singh et al. v. Hancock Natural Resources Group, Inc., 2016 LEXIS 179974 (E.D. Cal. Dec. 29, 2016), Magistrate Judge

Jennifer L. Thurston ordered the plaintiffs to produce all emails and documents “in the format demanded with the accompanying metadata from the native computer.” Plaintiffs’ counsel initially produced TIFF-formatted emails that were forwarded to the client’s former attorney, which rendered the metadata “wholly useless and irrelevant.” Defendants argued that the metadata from the native versions of the emails was crucial to show that the emails produced by the plaintiffs were materially altered and different from the same versions produced by the defendants. Plaintiffs’ counsel (and thereafter former counsel) attributed the inconsistencies to his inexperience in e-Discovery.

Magistrate Judge Thurston, recognizing the importance of the metadata, granted the defendants’ motion to compel with respect to any request for ESI, and ordered the plaintiffs “to produce all emails and other documents sought by the defendants in the format demanded with the accompanying metadata from the native computer.” Adding insult to injury, Judge Thurston’s opinion included a footnote that “the lack of competency to respond to electronic discovery is absolutely not a sufficient explanation for the failure to provide proper responses and persisting in this explanation repeatedly through the joint statement as reasonable, frankly, is absurd.”

Sometimes, form of production is a much “larger” issue than metadata. In Sky Med. Supply Inc. v. SCS Support Claim Servs., 2016 U.S. Dist. LEXIS 121215 (E.D.N.Y. Sept. 7, 2016), the defendants filed a motion to compel, arguing that the plaintiff’s production of documents on two CDs, which contained thousands of claims and did not have a convenient way to sort through data, was an unacceptable format in violation of Rule 34. In response, the plaintiff offered the defendants access to their entire server under the theory that this would be the most efficient method of obtaining discovery. Although the defendants appropriately noted that an on-site examination of the server would be “painstaking and time consuming,” the court ruled that FRCP 34 does not require a party to alter its data from how it is kept in the usual course of business. The court also rejected the

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defendants’ plea of inconvenience because they had not even attempted to inspect the servers.

Lastly, Kissing Camels Surgery Ctr., LLC v. Centura Health Corp., 2016 LEXIS 7668 (D. Colo. Jan. 12, 2016), highlights the distinction in the new rules over a party’s obligation with respect to ESI and hard copy documents. Here, the plaintiff brought a motion to strike the defendants’ request for production as duplicative after having already produced a terabyte of ESI. While the court agreed that defendants did not make any attempt to tailor the discovery request to issues arising from this case, it also found plaintiff’s boilerplate objections (pointing toward the millions of pages they already produced without any guidance as to where responsive documents could be found) to be inadequate. The court explained that discovery objections under Rule 34 must be made with “specificity” and state whether any responsive materials are being withheld on the basis of the objection, as addressed below in greater detail.

Normally, there would be no obligation for plaintiffs to identify by Bates range where particular documents have been produced in response to a Rule 34 request. FRCP 34(b)(2)(E)(i) simply requires a party to produce documents “kept in the usual course of business” or to “organize and label them to correspond to the categories in the request.” On the other hand, under

FRCP 34(b)(2)(E)(ii), if the request for production does not specify a form for the production, “a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonable useable form or forms.”

The court explained that the distinction between the two production procedures is “searchability.” Citing precedent from the District of New Mexico, Magistrate Judge Nina Wang wrote that “requesting parties could avail themselves of the guarantees of [FRCP 34(b)(2)] (E)(i) or (E)(ii), but not both,” when determining the formof production. Anderson Living Trust v. WPX EnergyProduction, LLC, 298 F.R.D. 514, 527 (D.N.M. 2014)(internal quotations omitted). As the drafters of the newrules foresaw, “the nimbleness of the current searchfunctionality with ESI software … [renders] it unnecessaryto make (E)(i)’s organization guarantees applicable toESI.”

While there was no dispute that the plaintiffs produced their ESI in a usable, searchable form, the court considered the totality of circumstances in ordering the plaintiff to provide additional information about where in the production the defendants could find certain information. This included the volume of document production to date, the “asymmetry of information regarding the production between plaintiffs” and the duration of time the case had been pending. While the court declined to compel the plaintiffs to provide Bates range numbers for the responsive documents for every request for production, it permitted the defendants to identity 10 limited categories of documents already requested through the existing requests for production that the plaintiffs objected to as being duplicative, and required the plaintiffs to identify Bates ranges of responsive documents to those categories.

COOPERATIONCourts in 2016 continued to emphasize the importance of cooperation between parties to resolve discovery disputes. As one might expect, such disputes remain a constant cog in calendars around the country. Nevertheless, recent opinions indicate that failure to

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cooperate will result in counsel’s forced compliance with the court’s terms, or worse yet, those of opposing counsel.

In Babcock Power, Inc. v. Kapsalis, 2016 WL 4944245, 10 (W.D. Ky. Sept. 15, 2016), the court explained that the duty to cooperate should begin at the “first try” as opposed to when one is faced with court intervention. “Doing so would avoid putting the Court in the position of having to fashion requests that take into consideration Rule 26 as well as the specific facts and

circumstances of this case – a task that is typically better left to the parties.” Even so, the producing party must tailor a proper response, e.g., “no emails found” is not sufficient, per Carter v. Cummings, 2016 U.S. Dist. LEXIS 137118, 2 (W.D. Wis. Oct. 3, 2016). “They can be required to identify the steps they took to determine whether there are any responsive documents.” In Carter v. Cummings, counsel for the producing party hadto incur additional expenses after the court directedthat they “supplement their response to explain whatthey did before determining that there are no emailsresponsive to plaintiff’s request.”

This duty continues throughout the discovery process and requires the demanding party to work alongside opposing counsel in the production of the requested materials. Pyle v. Selective Ins. Co. of Am, 2016 WL 5661749 (W.D. Pa. Sept. 30, 2016). In Pyle, the court reprimanded the plaintiff for a refusal to provide any

ESI search terms to assist the defendant in responding to the plaintiff’s requests for information contained within various email accounts. “Plaintiff’s argument totally misses the mark; in fact, it borders on being incomprehensible … it is well settled by now that electronic discovery should be a party-driven process.” Moreover, this type of a dispute, i.e., regarding “search terms,” is one on which counsel should be able to “reach practical agreement” to obviate the court’s e-Discovery micro-management.

Cooperation between the demanding and producing parties must continue until the dispute is fully resolved. In Venturedyne, Ltd. v. Carbonyx, Inc., 2016 WL 6694946, 3 (N.D. Ind. Nov. 15, 2016) the court noted the parties’ early collaborative efforts were thwarted by animosity that developed between counsel. “Before Carbonyx’s counsel cut off email contact with Venturedyne’s counsel, the parties appeared to be making progress toward an agreed list of search terms. This would have been the better solution and likely would have limited Carbonyx’s expenses in reviewing the results of the searches. But Carbonyx’s refusal to participate in that process now requires that the Court intercede.”

Further, personal differences are not a valid excuse for failing to make a good-faith attempt to resolve the matter beforehand. After all, courts will ultimately direct such a conference since the intricacies of the case are best known to the parties involved. Cangelosi v. N.Y. Life Ins. Co., 2016 WL 4942010, 10 (M.D. La. Sept. 15, 2016). As the court explained, “without more information, and due to an apparent lack of cooperation between the parties, the Court cannot determine what further limitations are appropriate.”

Courts have generally allowed the producing party to make their own choice as to which ESI search method to employ. Hyles v. New York City et al., 2016 WL 4077114, (S.D.N.Y. Aug. 1, 2016). In Hyles, Judge Andrew Peck acknowledged that cooperation principles “do not give the requesting party, or the Court, the power to force cooperation or to force the responding party to use

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TAR.” Though noting that TAR (technology-assisted review) was “cheaper, more efficient and superior to keyword searching,” he still honored the defendant’s freedom of choice to use the latter method. However, Judge Peck left open the possibility of subsequent forced use of TAR in the event that the plaintiff “later demonstrates deficiencies” in the defendant’s production.

This precise scenario occurred in Wallace v. Tesoro Corp., 2016 WL 7971286, 5 (W.D. Tex. Sept. 26, 2016)where the producing party was unable to “locate a single document” to respond to a central issue of the case. The court noted that the producing defendants “refused to employ a Boolean ESI search” and instead, have “utilized an ESI search methodology that was virtually guaranteed to avoid finding relevant ESI.” Interestingly, the court viewed their use of overly restrictive qualifiers to suggest “an unwillingness to cooperate to identify and fulfill legitimate discovery needs.” Under this premise, the court ruled that the defendants “must employ a Boolean search in searching for documents responsive to these requests.” Thus, there appears to be some disagreement as to what the “duty to work together” truly entails.

In any event, 2016 demonstrated that courts continue to discourage the typical discovery mindset of aim high (i.e., the kitchen sink) and settle at what is fair (i.e., whatever you can get away with). On a cost-

efficient basis, counsel is much better served to simply start with what is fair, which necessarily involves a collaborative effort with their opposition. After all, as courts have shown, parties will be compelled to respond to discovery eventually, it is just a matter of when this occurs and at what expense.

SEARCH METHODOLOGIES AND THE USE OF PREDICTIVE CODINGSearch methodologies and the use of predictive coding (i.e., technology-assisted review, or TAR) in litigation continue to be an issue of contention and developing case law. One example is the decision in Dynamo Holdings Lt. P’ship v. Comm’r of Internal Revenue, 143 T.C. 183 (2014) (Dynamo I), in which the court revisited and expanded upon in its decision, Dynamo Holdings Lt. P’ship v. Comm’r of Internal Revenue, No. 2685-11 (T.C. Jul.13, 2016) (Dynamo II). In Dynamo I, the court endorsed predictive coding as “an expedited and efficient form of computer-assisted review that allows parties in litigation to avoid the time and costs associated with the traditional, manual review of large volumes of documents.” The court granted respondent’s motion to compel petitioners to produce backup tapes while permitting petitioners to respond using predictive coding but left open the issue of whether the resulting document production would be sufficient, expressly stating, “if, after reviewing the results, the respondent believes that the response to the discovery request is incomplete, he may file a motion to compel at that time.

In Dynamo II, the court held that petitioners’ responses were sufficient because under the Tax Court Rules and the Federal Rules of Civil Procedure, a responding party is not required to provide a perfect document response, but only a “reasonable inquiry” when submitting a response. Following the court’s 2014 decision, the parties generally agreed to and followed a framework for producing the ESI using predictive coding: (1) restoring and processing the backup tapes, (2) selecting and reviewing seed sets, (3) establishing and applying the predictive algorithm, and (4) reviewing and returning the production set. Seed sets of documents were

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provided to the respondent, who then determined which documents were relevant in order to develop a predictive algorithm. After applying the predictive algorithm, petitioners produced a set of approximately 180,000 documents to respondent for review and included a relevancy score for each document. After review, respondent retained 5,796 documents and returned the remaining documents to petitioners. Respondent subsequently filed a motion with the court seeking to compel the production of documents responsive to a Boolean search that were not previously produced by the plaintiffs. Based on the factual and procedural history, the court denied respondent’s motion, noting that in-person manual document review was not infallible − in fact, far from it − and that TAR should not be held to a higher standard than keyword or manual review and that petitioners had clearly engaged in a “reasonable inquiry” in providing their document production.

While predictive coding continues to grow as a judicially recognized, effective and cost-efficient discovery tool, courts have been careful not to mandate or force parties to use it. In Hyles v. New York City et al., 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016), previously referenced, Judge Peck held that a party cannot be forced to use TAR in responding to an adversary’s request for ESI. Prior to expending significant sums in searching for responsive ESI, the parties sought a ruling from the court as to the proper search methodology, where the defendant wanted to use keywords and the plaintiff was requesting that it use TAR. The court, relying on the principles cited in the Sedona Conference Cooperation Proclamation and the belief that parties in discovery should cooperate, held that neither the requesting party nor the court has the power to force the responding party to use TAR. The court held that the defendant could use the search method of its choice, and if plaintiff later demonstrated deficiencies in the defendant’s production, the defendant may be required to re-do its search. The court’s holding in Hyles affirms Principle 6 of The Sedona Principles by prohibiting a party from dictating the search method its adversary uses for its ESI production.

The decision in Hyles was followed in In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016). In Viagra, the parties did not agree on the method to search for ESI. Relying on the court’s “well-reasoned” holding in Hyles, the court found that “even if predictive coding were a more efficient and better method … it is not clear on what basis the Court could compel [the responding party] to use a particular form of ESI, especially in the absence of any evidence that [the responding party’s] preferred method would produce, or has produced, insufficient discovery responses.”

SOCIAL MEDIASocial media remains a hot-spot on e-Discovery issues and as it becomes more prevalent, courts across the country continue to struggle to find the balance between privacy and the competing demands of full and fair discovery.

The production of social media information has been the subject of motion practice in many recent decisions. For example, in In re Sorum, 2016 Tex. Dist. LEXIS 9766 (Tex. Dist. Ct. Mar. 29, 2016), the court addressed a dispute over the relevancy of posts on Facebook. In Babcock Power, Inc. v. Kapsalis, 2016 U.S. Dist. LEXIS 166616 (W.D. Ky. Dec. 2, 2016), the court addressed

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disputes over defendants’ use of LinkedIn. Most of the disputes focus on the scope of discovery demands and the courts’ continued observations that such discovery demands must be narrowly tailored and reasonable. For example, in Rhone v. Schneider Nat’l Carriers, Inc., 2016 U.S. Dist. LEXIS 53346 (E.D. Mo. Apr. 21, 2016), the court required that the plaintiff provide the defendant with a “Download Your Info” report from her Facebook account from the date of the accident to the present, as the defendant’s independent examination had already uncovered relevant information. Conversely, in Gordon v. City of N.Y., 2016 U.S. Dist. LEXIS 91035 (S.D.N.Y. July13, 2016), the court denied the defendant’s request forESI on social media accounts as the request was “notsufficiently targeted at eliciting relevant information.”

Courts have not given discovery on social networking sites any sort of special protection, but they have required that a discovery request seeking such material satisfy Rule 26’s proportionality requirement. In Scott v. United States Postal Serv., 2016 U.S. Dist. LEXIS178702 (M.D. La. Dec. 27, 2016), the court ruled thatwhile the social media information and postings soughtwere relevant to the plaintiff’s claims, the party foundthe requests over-broad, and required that social mediaactivity be limited in time and related to the plaintiff’sphysical injuries and physical capabilities. Similarly, thecourt denied the plaintiff’s request, in Abe v. N.Y. Univ.,32 N.Y.S.3d 506 (1st Dep’t June 21, 2016), for access toall the social media sites and private email accounts ofcertain individual defendants when a Facebook “friend”simply wrote “Hi” on a defendant’s “wall.”

One of the biggest issues confronting courts today is the privacy implications of discovery demands on a party’s social media. While courts have held that social media content is not privileged or protected by any right of privacy, courts do not “generally endorse an extremely broad request for all social media site content.” For example, the court in Gondola v. USMD PPM, LLC, 2016 U.S. Dist. LEXIS 69667 (N.D. Tex. May 27, 2016), ordered the parties to meet and confer on a more limited scope for social media content. Similarly, the court in Cory v. George Carden Int’l Circus, Inc., 2016 U.S. Dist. LEXIS

87590 (E.D. Tex. Mar. 18, 2016), denied the defendant’s request for Facebook Message data, finding that even with the defendant articulating a strong reason, such a request was a “disproportional intrusion into Plaintiff’s privacy.” Courts also have limited a party’s

request for multiple reviews of a person’s social media accounts, when no sufficient explanation is offered why an additional search “will result in the identification or production of additional responsive information.” Westmoreland v. Wells Fargo Bank NW., N.A., 2016 U.S. Dist. LEXIS 151444 (D. Idaho Oct. 31, 2016).

A means of compromise between unfettered access and prohibition of production of information on social media sites that has been used by the judiciary is the requirement that the producing party grant their adversary or simply their own counsel access to samples of each to determine relevancy. In Edwards v. City of Bossier City, 2016 U.S. Dist. LEXIS 94868 (W.D. La. July 20, 2016), the court ruled that while the plaintiff objected to certain requests for discovery of his social media as “an unreasonable invasion of privacy,” the plaintiff had to make his social media postings available to his attorney so that counsel could review them for relevance. Similarly, in Lewis v. Bellows Falls Congregation of Jehovah’s Witnesses, 2016 U.S. Dist. LEXIS 17869 (D. Vt. Feb. 11, 2016), the court ordered that the plaintiff’s counsel review the plaintiff’s entire

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Facebook account to determine relevance of the material to the allegations and the request for damages.

The courts also are continuing to sanction or threaten sanctions and admonish parties that fail to produce social media data. For example, in Rhone v. Schneider Nat’l Carriers, Inc., 2016 U.S. Dist. LEXIS 53346 (E.D. Mo. Apr. 21, 2016), the parties were admonished by the court for failing to produce social media information and advised that failure to comply may result in sanctions.

One example of the court admonishing a party and imposing sanctions is Anderson v. CentraArchy Rest. Mgmt. Co., 2016 U.S. Dist. LEXIS 8938 (N.D. Ga. Jan. 26, 2016). In Anderson, the plaintiff failed to comply with not only discovery but also the court’s order to compel her to provide all responsive information and documents contained in her social media accounts. The court awarded attorneys’ fees to the defendant and sanctioned the plaintiff. The court specifically noted that “They have impeded the litigation of this case, evaded the discovery obligations necessary to reach a fair and just resolution, caused Defendant to bear expense it should not have to bear, and otherwise impeded the administration of justice. For this conduct, there must be a sanction and this sanction must be timely imposed and timely enforced.”

However, sometimes the inadvertent deletion of certain social media posts may not warrant sanctions. In Thurmond v. Bowman, 2016 U.S. Dist. Lexis 105573 (W.D.N.Y. Mar. 31, 2016), the court found that three posts on Facebook were deleted inadvertently and were not relevant to the litigation. It also noted that while the defendants thought more postings were deleted, it concluded that the plaintiff simply changed her settings and the other posts thought to have been deleted in the defendants’ sanctions motion were actually produced by the plaintiff. As the court found that there was no wholesale destruction of evidence in this case, but rather the deletion of three posts and a change of privacy settings, the request for sanctions and a preliminary injunction was denied.

OBJECTIONS TO DOCUMENT DEMANDS In late 2015, substantial amendments were enacted to the Federal Rules of Civil Procedure that required changes to the approach of many practitioners to responding to discovery demands in federal litigation. During the past year several courts have reviewed parties’ responses to document demands under the new Rule 34 and commented on best practices. Specifically, courts emphasize that boilerplate objections are not acceptable under the new Rule 34. All objections must be stated with specificity. Furthermore, a party responding to a discovery demand must state whether any responsive materials are being withheld on the basis of any objection asserted. In this regard, some courts

have held that identifying the parameters of the search that the responding party performed was sufficient to place the demanding party on notice as to the universe of documents searched and the searches performed.

In Rowan v. Sunflower Elec. Power Corp., No. 15-cv-9227, 2016 U.S. Dist. LEXIS 91109 (D. Kan. July 13, 2016), the court for the District of Kansas analyzed the requirements of the amended Rule 34 as they pertain to asserting objections based on privilege and work product when a party is withholding otherwise discoverable information on those grounds. Initially, in reviewing whether privilege objections were appropriate, the court held that attorney-client privilege may apply to emails transmitted between non-attorney employees of a corporation that are for

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the purpose of obtaining legal advice. Rowan argued that the defendant Power Constructors, Inc. (PCI) waived privilege arguments with respect to documents that were responsive to three separate sets of document requests when privilege objections were asserted only in the amended responses but not the initial ones. The court noted that privilege objections must be expressly asserted in the written response to a request for the production, or any such objection may be deemed waived. Yet, the court found that PCI did not designate new documents as responsive in its amended privilege log, but only stated that documents previously identified as privileged may be responsive to additional document requests. As the number of documents withheld due to privilege remained the same, Rowan’s argument was rejected.

Finally, Rowan argued that PCI did not fully comply with the order of the court to review and amend its discovery responses and privilege log pursuant to the amended Rule 34 to state what was being withheld. The court emphasized, with reference to the Advisory Committee’s note to the 2015 amendment to Rule 34, that the new rules require the objecting party to “state whether any responsive materials are being withheld on the basis of that objection.” Because PCI stated the limits of its search for responsive documents, the court found that the requirements of Rule 34 were met.

The court in Heller’s Gas, Inc. v. Int’l Ins. Co. of Hannover Ltd., 2016 U.S. Dist. LEXIS 71069 (M.D. Pa. June 1, 2016), in the context of reviewing discovery objections in an insurance case, reiterated that the party objecting to discovery must state the grounds for the objection with specificity. Furthermore, in reviewing a party’s privilege log, the court noted that the subject of the document being withheld must be provided in the log.

In Duffy v. Lawrence Mem. Hosp., 2016 U.S. Dist. LEXIS 176848 (D. Kan. Dec. 21, 2016), the plaintiff moved to compel additional discovery from the defendant, claiming that the initial discovery responses were incomplete and that the objections asserted were “boilerplate.” In response, the defendant argued that they should not be required to produce additional

discovery because of proportionality considerations. The court noted that the 2015 amendment to Rule 26(b) emphasized that considerations of both relevance and proportionality govern the scope of discovery. Relevance is still construed broadly, although, as the court noted, relevancy determinations are generally made on a case-by-case basis. With respect to proportionality, the court noted that this consideration is not new since various proportionality factors have been included in the Rules since 1983. The court emphasized that a shift of these factors (plus the addition of one new factor) back to Rule 26(b)(1) did not create a new burden on the party seeking discovery to affirmatively address all proportionality considerations. If discovery sought appears relevant, the party resisting discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevancy as defined under FRCP Rule 26(b)(1) or (2) is of such marginal relevancy that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Conversely, when the relevancy of the discovery request is not readily apparent on its face, the party seeking the discovery has the burden to show the relevancy of the request.

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The Duffy court also rejected the responding party’s boilerplate “conditional objections,” which occur when a party asserts objections, but then provides a response “subject to” or “without waiving” the stated objections. The court noted that answering a request subject to an objection lacks any rational basis, because either there is a sustainable objection or not. Instead, as the court explained, Rule 34 demands (1) a statement that inspection or production will be permitted as requested, or (2) an objection. The Duffy court also rejected as improper the conclusory objections that certain requests were “overly broad,” “unduly burdensome” or “vague and ambiguous” that were not accompanied by facts justifying the objection or setting forth an assessment of the costs in time and/or money that the responding party would incur if it produced the requested discovery.

The court in Arenas v. Unified Sch. Dist. No. 223, 2016 U.S. Dist. LEXIS 143338 (D. Kan. Oct. 17, 2016), granted a party’s motion for a protective order based on the fact that the discovery objections were stated with specificity. The responding party objected to a demand for information concerning all employees or the party’s policies as applied to all employees as overbroad. The responding party explained that due to the number of employees involved and the number of locations, the response to the interrogatory would have required the responding party to review more than 1,700 personnel files and offered to limit the response to the interrogatory. The court agreed that such a limitation was reasonable.

In sum, the emerging case law is in line with our earlier predictions that the courts will reject boilerplate objections and place more emphasis on (1) supplying factual basis to each objection, if asserted and (2) identifying the limitations employed in the search for documents, or otherwise identifying the documents withheld. With respect to the documents withheld by privilege, the privilege log must state the subject of the document and be sufficient to let the requesting party determine from the face of the privilege log that the privilege would apply.

DUTY OF COMPETENCE/ETHICAL OBLIGATIONSWith the ever-increasing use of e-Discovery, practitioners need to be mindful of the wide range of pitfalls should they fail to familiarize themselves with e-Discovery practice. Since 2012, the Model Rules of Professional Conduct of the American Bar Association have made it clear that lawyers have a duty to be competent not only in the law and its practice but also in technology. More than 20 states have since adopted this duty of technological competence, which requires lawyers to keep abreast of the “benefits and risks associated with relevant technology…” See Comment 8 to Model Rule 1.1. Several recent decisions illustrate the importance of attorneys keeping current with the now not-so-recent developments in the field of electronic discovery.

The decision in Arrowhead Capital Fin., Ltd. v. Seven Arts Entertainment, Inc., No. 14 Civ. 6512 (KPF), 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016), involves imposition of significant sanctions on the defendant’s CEO. The outcome of this case should not be surprising to those familiar with the series of decisions in Zubulake v. UBS Warburg LLC, issued by Judge Scheindlin of SDNY in 2003−2005. In Arrowhead, the plaintiff alleged that the defendant purposefully hid witnesses, delayed and cancelled depositions, and entirely failed to set up a defensible process of preservation, review and production of documents in response to the plaintiff’s discovery requests. The court issued several orders compelling discovery from the defendant, with which the defendant did not fully comply. A five-hour contempt hearing was held by the court, during which the defendant’s CEO was questioned extensively about the defendant’s conduct during the discovery process. The court concluded that the defendant’s misconduct in this litigation was “as deep as it is wide.”

Significant for the purposes of the plaintiff’s sanctions application was that the defendant maintained “paperless offices,” with many of the requested documents stored on a server maintained by a third-party entity, Zed One. After the defendant’s failure

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during the course of litigation to pay Zed One’s bills, the defendant was denied access to Zed One’s server and the plaintiff’s attorney and the court were not notified of this fact. The defendant allegedly scrambled to download all the responsive documents from the server but was not sure if they downloaded everything. The court also appeared incensed that the defendant’s CEO blamed his administrative assistant’s judgment and emotional state for failure to produce certain relevant documents.

Quite shocking to the court and the plaintiff’s attorney was the defendant’s outside counsel’s admission that he did not even review the documents provided to him by the client before producing it to the plaintiff’s counsel. This behavior quite clearly runs contrary to the lawyer’s duty to monitor the clients’ compliance with electronic data preservation and production under Rule 37(e).

The court imposed substantial sanctions:

n The defendant was precluded from litigating the issue of personal jurisdiction

n Spoliation instruction was issued

nAttorney’s fees were awarded to the plaintiff for preparation and participation in various discovery conferences

n The defendant was ordered to retain a second outside counsel to perform a thorough review of the defendant’s files and determine whether the defendant possessed additional discoverable information

n The defendant’s CEO was held to be in contempt of court, as the misconduct could not have occurred without his knowledge and consent.

The court also imposed moderate monetary sanctions on the outside counsel, after finding that counsel’s behavior in regard to depositions and asserting specious evidentiary objections in opposition to the plaintiff’s motion for summary judgment were in bad faith. While outside counsel was not sanctioned in this instance for his abdication of responsibility for the

e-Discovery process, this should not be taken as licenseto neglect close supervision of preservation, review andproduction of discovery. Judge Failla also was critical ofcounsel’s designation of all documents as confidential(including press releases and publicly available SECfilings); untimely and improper objections to discoverydemands; and padding document production withunresponsive documents.

Oracle America Inc. v. Google Inc., No. C 10-03561 WHA (ND Ca., Sept. 27, 2016), is a reminder to all lawyers that it is critically important to review document production. When a large volume of documents needs to be reviewed, an e-Discovery vendor can assist in setting up an effective review process that would perhaps avoid the embarrassing situation presented in this case. Oracle made a motion for a new trial in a high-exposure copyright infringement lawsuit involving Android, claiming that Google concealed certain records that would have been a “game changer” at trial. One of Google’s arguments at trial was that Android’s use of the copyrighted lines of code qualified as “transformative” under the fair use doctrine, as the code was designed for desktops and laptops whereas Android transformed the code to work on smartphones and tablets. Oracle accused Google of concealing evidence that allegedly would have shown that Google was planning to

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implement Android on desktops and laptops, which would have been a “game changer” at trial. During oral argument on the motion, it was revealed that Google had produced at least nine documents concerning the allegedly concealed project, but that Oracle’s attorneys failed to review them! The court held that “Oracle should have known that items produced in response to its own document requests potentially contained information that supplemented Google’s earlier written discovery responses. Oracle’s failure to review [the documents] is its own fault.” Naturally, this ground for Oracle’s motion was denied.

With most e-Discovery-related decisions originating in federal courts, In re Eisenstein, 2016 BL 107979, Mo., No. SC95331, (4/5/16), is notable in that it comes from a state supreme court. It furthermore illustrates that a lawyer’s duty of competence is closely tied to other ethical duties. Justice Richard B. Teitelman wrote the majority opinion condemning ethical violations of an attorney, Mr. Eisenstein, who attempted to use hacked electronic records of his adversary’s client at trial. In the underlying divorce litigation, Mr. Eisenstein’s client, the husband, hacked his wife’s personal email account and obtained a list of direct examination questions, prepared by the wife’s attorney, and the wife’s confidential payroll records. Mr. Eisenstein then handed these documents to the wife’s attorney as exhibits during trial. An immediate court conference was called, during which Mr. Eisenstein admitted that he had viewed the information improperly obtained by his client and did not immediately disclose his receipt of this information to the wife’s attorney. Mr. Eisenstein also apparently had already used the improperly obtained payroll information during a pre-trial settlement conference. Finally, to add insult to injury, Mr. Eisenstein sent a threatening email to the wife’s attorney after the trial conference, cautioning her to “be careful what you say” or else she could make “a lifelong enemy.” This matter was brought before a disciplinary hearing panel (DHP) of the Office of Chief Disciplinary Counsel, which recommended an indefinite suspension of Mr. Eisenstein with no leave to apply for reinstatement for 12 months.

In reviewing the DHP’s recommendations, the Missouri Supreme Court held that Mr. Eisenstein violated multiple ethical rules when he knew that he had improperly received information from the husband and failed to notify the wife’s attorney in order to permit her to take protective measures. Mr. Eisenstein’s defense that it

was not he but his client who obtained the information illegally was rejected by the court, which emphasized that a lawyer may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation, and especially may not attempt to use illegally obtained documents. Mr. Eisenstein’s threatening of opposing counsel during the course of litigation was found to constitute conduct prejudicial to the administration of justice. The court sanctioned Mr. Eisenstein with indefinite suspension with no leave to reapply for six months. The dissenting opinion of Judge Paul C. Wilson agreed with the findings but would have imposed a more severe penalty.

CROSS-BORDER DISCOVERY (AND POSSESSION, CUSTODY OR CONTROL)Cross-border discovery involves searches, preservation and exchange of documents and information located outside the borders of the United States for the purposes of U.S. litigation. Successful navigation of cross-border discovery challenges requires knowledge of the legal landscapes of the countries in which target discovery is located, as otherwise counsel and parties run the risk of civil and even criminal penalties for disregarding privacy and cross-border data transfer laws.

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In matters involving “personal data” of the European Union’s (EU’s) subjects, U.S. litigants need to be familiar with the framework of the new General Data Protection Regulation (GDPR), which the European Parliament and Counsel agreed to in December 2016. The GDPR will replace the earlier Data Protection Directive 95/46/ec as of May 25, 2018, and will increase the level of data protection and uniformity of enforcement among EU member states. It imposes additional responsibilities on data controllers and processors, while at the same time prescribing an approved code of conduct or an approved certification mechanism. The GDPR contains the definition of “personal data breach,” which is a “breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed.” By comparison, the U.S. laws are typically limited to protecting information against fraud and identity theft. GDPR purports to have extraterritorial application, and may apply to U.S. companies that created and stored data on EU data subjects outside the European Union. GDPR also substantially increases penalties for violations of data protection laws, which can reach as high as 4 percent of a company’s annual global revenue. In light of the potential astronomical fine that may be levied against companies for the violation of the GDPR, practitioners must be vigilant in handling data for clients that have controls or process the personal data of EU citizens.

While several commentators are hopeful that the GDPR will make it easier to navigate the framework of EU privacy laws, the GDPR presents potential conflicts with the U.S. evidence preservation requirements, just as with current European data protection laws. Significantly, under the GDPR an EU data subject will continue to have a right to require a data custodian organization to delete or transfer their data. At the same time, a U.S. judge may impose conflicting obligations on the custodian company, requiring it to preserve information or face sanctions. GDPR further states that orders of non-EU courts requiring transfer of disclosure of personal data are not recognized unless such orders are

based on an international agreement. Attorneys working on litigation matters involving EU data must be familiar with the requirements of GDPR to avoid conflicts with U.S. court orders early on, perhaps by showing that a U.S. party does not have custody or control over the documents sought in discovery.

On July 12, 2016, the U.S. Department of Commerce and the European Commission adopted an EU-U.S. Privacy Shield Framework designed to permit U.S. companies to comply with the EU data protection requirements when they must effect an “onward transfer” of data to the United States. U.S. companies may sign up voluntarily if they wish to be able to process the data of EU data subjects in the United States. Companies must then self-certify annually that they meet the requirements of Privacy Shield, display a privacy policy on their website and reply promptly to any complaints. Once a company has signed up, compliance with Privacy Shield’s principles is mandatory and is enforced by the U.S. Federal Trade Commission.

Russia’s Federal Law on Personal Data is similar to the regime established in the European Union (although less interpretation is available); it also regulates cross-border data flows. Personal data is defined broadly and includes categories such as family and financial status, education, occupation and income. To transfer personal data outside Russia, data operators must ensure that the rights of the data subjects are adequately

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protected in the receiving foreign country. Countries that are signatories to the Strasbourg Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data 2005 are considered to provide sufficient protection to the rights of Russian data subjects; the United States is not one of the signatories of the Strasbourg Convention. Cross-border data transfers to countries that do not provide “adequate protection” to the rights of data subjects are allowed only in limited circumstances, which include the data subject’s consent; protection of the data subject’s life, health or vital interests; or performance of the contract to which the data subject is a party. Practically speaking, absent an international treaty or agreement, Russian entities are not obligated to respond to foreign e-Discovery requests.

As illustrated, cross-border discovery places additional burdens on counsel in the U.S. litigation. If discovery reasonably cannot be obtained from an overseas entity, it is up to counsel to demonstrate such to the court. One of the guiding U.S. discovery principles is that a party is not obliged to produce documents that it does not possess or cannot obtain. In the context of e-Discovery, the court in Grayson v. Gen. Elec. Co., 2016 WL 1275027 (D. Conn. Apr. 1, 2016), conducted a fact-specific inquiry into whether GE and Samsung Korea, an overseas manufacturer for GE, had the type of a relationship that allowed GE “practical ability” to obtain Samsung Korea’s documents for the purposes of responding to discovery. The court noted that this inquiry went “beyond the particular form of the corporate relationship and instead looked at “the nature of the transactional relationship between the entities.” GE showed that Samsung Korea was a completely different entity; GE was not a parent of Samsung Korea and did not have any ownership interest in it. The court noted, however, that even where there is a parent/subsidiary relationship between entities, the courts look for a “showing that the two entities operate as one, demonstrated access to documents in the ordinary course of business, and an agency relationship.” The court also stated that the contractual agreement between the defendant and manufacturer

was insufficient to create control on the defendant’s behalf and denied the plaintiff’s motion to compel.

For counsel facing cross-border discovery challenges, it is vital to understand the scope of data protection laws of the target country, which may involve retaining local counsel and e-Discovery vendors. Counsel should furthermore be prepared to discuss discovery challenges with their clients very early in the litigation, and keep the court abreast of these challenges so as not to inadvertently become bound by a discovery order that is costly or impossible to comply with as a result of failure to advise the court of the challenges. At the early stages of litigation, it may be easier to limit the scope of discovery or shift some of its costs to the party seeking discovery. Importantly, documents and data that are potentially implicated by a discovery order may need to be reviewed within the target country, as cross-border data transfers may trigger the protections of the data privacy laws. Cooperation with opponents in litigation and securing consents of data subjects whenever possible is good practice.

CONCLUSIONAs technology continues to develop, the world continues to shrink and e-Discovery will likely become more of a global practice. With increasing complexity, clients will look more to the attorneys to guide them through the process to avoid the pitfalls highlighted in cases cited in this update. It behooves even the casual practitioners in e-Discovery to educate themselves in the latest development in the area to fulfill their ethical responsibility of providing an adequate representation.

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A GUIDE TO

Electronically Stored Information Preservation Responsibilities

E-DISCOVERY

CONTENTS

1 Abstract

1 The Importance of Preserving ESI

2 The Preservation Mantra

2 The Preservation Trigger

3 Timing & Scope of the Preservation Obligation

3 Legal Hold Implementation

4 Monitoring & Auditing Legal Holds

4 Document Custodian & IT Personnel Interviews

5 Documenting the Preservation Process

5 Proportionality Principles Apply

5 Outside ESI Technical Consultants

5 Meet & Confer with Opposing Counsel

6 Special Types of ESI

6 Seek Advice from Lawyers Early & Often

7 About The Authors

8 Our Firm

9 Services

10 Offices

Wilson Elser, a full-service and leading defense litigation law firm (www.wilsonelser.com), serves its clients with nearly 800 attorneys in 30 offices in the United States and one in London. Founded in 1978, it ranks among the top 200 law firms identified by The American Lawyer and is included in the top 50 of The National Law Journal’s survey of the nation’s largest law firms. Wilson Elser serves a growing, loyal base of clients with innovative thinking and an in-depth understanding of their respective businesses.

ABSTRACTA guide for clients, lawyers, information technology staff and

others interested in the litigation-related obligation to preserve

electronically stored information (ESI) in United States litigation.

THE IMPORTANCE OF PRESERVING ESIThe litigation-related duty to preserve relevant evidence,

which extends to both electronic and hard copy materials, is

well established and widely known in the legal community

and the business world. Despite broad familiarity with this

obligation, many corporate litigants continue to be subjected

to severe sanctions due to judicial intolerance for the failure

to preserve electronically stored information. While some such

sanctions involve the imposition of legal fees, in many instances

courts have issued severe adverse jury instructions, effectively

destroying a litigant’s chance of prevailing or waging an

effective defense.

In contrast to the stereotypical Enron-style destruction of

evidence (i.e., deliberate document shredding), courts have

made it clear during the past decade that the destruction of

evidence, including ESI, need not be willful for a court to impose

sanctions. Rather, a litigant’s “lackadaisical attitude” toward its

discovery and preservation obligations, including the passive

acts of failing to issue a written legal hold, collect ESI from key

players or cease routine destruction of ESI, have triggered severe

sanctions.2 The result, as many commentators have speculated,

was over-preservation of ESI in an effort by litigants to avoid

severe sanctions. This long-held perception culminated in a

significant amendment to Rule 37(e) of the Federal Rules of Civil

Procedure on December 1, 2015.

Under Amended Rule 37(e), federal courts are now prohibited

from relying on inherent authority when imposing spoliation

sanctions and are limited as to when the most severe forms

of sanctions can be imposed when ESI is lost or destroyed.

Specifically, where a party took “reasonable steps” to preserve

ESI, a federal court may not impose an adverse inference or

dispositive sanction for spoliation absent a finding “that the

party acted with the intent to deprive another party of the

information’s use in litigation.” 3

Critical questions remain unanswered in the immediate wake

of the amendment to Rule 37(e). Will federal courts interpret

a conscious disregard of the duty to preserve as being an

“intent to deprive another party of the information’s use in the

litigation?” Will federal courts make greater use of their inherent

authority to sanction litigants for general discovery misconduct?

Will state courts, which are obviously not impacted by the

amended rules, adjust their approach to spoliation sanctions?

A Guide to Electronically Stored Information Preservation Responsibilities1

By Thomas W. Tobin and Daniel M. BraudeWilson Elser | www.wilsonelser.com

3 Amended Rule 37(e) provides as follows:

Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) Upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

1 This guide represents the views, thoughts and ideas of the authors and not necessarily those of Wilson Elser. It is not intended to be specific legal advice and should not be relied upon for that purpose.

2 See Sekisui Am. Corp. v. Hart, 945 F. Supp. 2d 494 (S.D.N.Y. 2013); Moore v. CITGO Ref. & Chems. Co., L.P., 735 F.3d 309 (5th Cir. 2013); Keithley v. Homestore.com Inc., 2008 WL 3833384, 2008 US Dist. Lexis 61741 (N. D. Cal., 2008) (imposition of sanctions for a “lackadaisical attitude” toward discovery and preservation obligations), and many more.

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Only time will tell whether the recent revision to Rule 37(e) will

usher in an era of reduced preservation efforts. But regardless of

the recent rule amendment, in today’s legal climate, a company’s

seemingly innocent delay in implementing an appropriate method,

and “reasonable steps,” to preserve ESI may still be highly

problematic. The duty to preserve relevant evidence, including

ESI, remains too important to ignore, not only for those individuals

engaged in litigation on a daily basis but also for company

management seeking to control costs and expenses.

THE PRESERVATION MANTRA

n Act swiftly to manage risks and control costs.

n The duty to identify and preserve is extensive and

may be urgent.

n Failure to produce can almost always be cured,

but failure to preserve may be fatal.

n Implement a company-wide legal hold policy with

associated legal hold procedures, and then follow up

and audit to ensure compliance!

THE PRESERVATION TRIGGER

The duty to preserve relevant evidence and to follow

appropriate legal hold procedures is triggered once an

organization can reasonably anticipate litigation or a

government investigation.4 This occurs as soon as there is a

“credible threat” that the organization will become involved

in litigation or will be the target of an investigation.5

In some circumstances, the preservation trigger is easy to

identify. An obvious example is when a lawsuit has actually

been initiated against a company. At the same time, the

trigger for the preservation obligation may look entirely

different depending on which side of the obligation one

is on. Potential events that may indicate a reasonable

anticipation of litigation, and thereby trigger the

preservation obligation, include:

n Receipt of a claim letter demanding payment of damages

n Announcement of a threatened lawsuit, either by or against

a company

n Consideration of filing a lawsuit, including retaining outside

counsel

n Knowledge of similar litigation within the company’s

industry

n Substantive management or supervisor discussions of a

potential lawsuit

n Knowledge of a contractual dispute with another company

n Notice of a claim filed with an administrative agency

n Receipt of a letter questioning a hiring decision

n Occurrence of an incident causing significant

property damage

n Occurrence of an incident causing significant injury

n Occurrence of an incident that otherwise has a reasonable

possibility of resulting in a lawsuit or investigation

n Providing notice to a company’s insurance carrier

of a potential claim

n Receipt of a letter demanding a company’s preservation

of documents

n Notice of a governmental investigation or inquiry.6

This is not intended to be an exhaustive list of potential

triggers. Due to the severe ramifications that may result

from noncompliance with the preservation obligation,

management and in-house counsel may prefer to take a

conservative approach and deem a trigger to have occurred

even when in doubt.

6 See “Triggering the Duty of Preservation,” page 5, The Sedona Conference® Commentary On Legal Holds - The Trigger & The Process. https://thesedonaconference.org/publications

4 See Zubulake v. UBS, 220 F.R.D 212, 217 (S.D.N.Y. 2003) (Zubulake IV).5 For a plaintiff, this duty may arise when evaluating the prospect of litigation,

when litigation counsel is hired or when failed negotiations lead to the conclusion that litigation is the only option to preserve or protect one’s rights.

2

E-DISCOVERY

TIMING & SCOPE OF THE PRESERVATION OBLIGATION

The obligation to preserve relevant materials is broad in

scope and requires swift action to prevent possible loss

of evidence. Immediate action may be needed in issuing

a legal hold to potential document custodians to avoid

sanctions for spoliation of evidence, particularly when

litigation is already pending.

Determining the scope of the duty to preserve when

initiating a legal hold requires a close examination of the

triggering event, likely with a timeline focusing on who,

what, where, when and why.

Once a preservation obligation has been triggered,

reasonable good-faith efforts must be taken to preserve

potentially relevant hard-copy documents and ESI.7 This

relatively broad obligation frequently requires suspending

the routine destruction of electronic documents, such as

email subject to automatic deletion. As a general rule,

courts will not impose sanctions for the destruction of

ESI pursuant to a document retention policy, provided

that the policy was implemented for good faith business

purposes. However, once the preservation obligation is

triggered, it is necessary for an organization to immediately

suspend routine ESI destruction, such as by communicating

this obligation within a formal legal hold to key players,

including those with access to their documents and

information technology (IT) staff.

When in doubt, be conservative and take reasonable steps

to quickly and broadly preserve evidence relevant to the

7 Types and locations of ESI include, but most certainly are not limited to:Email ServersWord Proc. Files Desktop & Home PCsSpreadsheets LaptopsDatabases CD-ROMsWeb Pages Flash DrivesCAD Drawings Cell PhonesInstant Messages iPads / TabletsVideos Mobile Device AppsVoice Mail & VOIP Web-based EmailPDFs Archive SystemsImage Files External Hard DrivesHidden or Deleted Data Back-up TapesSystem Files Social MediaThe Cloud Virtual Systems

claims and defenses in the litigation or investigation. This

will assist in building credibility with any court later asked to

review preservation efforts.

LEGAL HOLD IMPLEMENTATION

Upon a company becoming aware of litigation, anticipated

litigation or a governmental investigation, a manager or

in-house counsel should be designated as the Legal Hold

Manager to implement the legal hold process and oversee

subsequent monitoring and auditing of the process.

This duty includes confirmation that all “key players” are

identified and notified of the hold.

The Legal Hold Manager, often working closely with outside

counsel, will issue one or more legal holds instructing

recipients to preserve relevant documents.8 The legal

hold, and any subsequent holds, should be distributed to

potential document custodians as well as appropriate IT

personnel and management. The following information

should be included:

n A description of the event or issues involved in the litigation

or investigation

n A discussion of the definition of “relevant” and the scope of

the preservation obligation

n Instructions to preserve potentially relevant evidence,

including ESI

n Instructions to halt policies of routine document deletion or

destruction

n A description of categories of documents and other items to

be preserved

n A list of potential document custodians and recipients of the

hold, when feasible

n A request for identification of additional potential document

custodians

n A request for identification of additional potential locations of

relevant evidence

8 Although the Legal Hold is protected by attorney-client privilege, in certain circumstances it may be subject to disclosure. In that regard, the utmost care is required when drafting the hold.

3

E-DISCOVERY

n A copy of the company’s legal hold policy as an attached

appendix

n Instructions to return a signed copy of the legal hold or to

otherwise certify that the recipient understands the hold and

pledges to comply with its requirements

n Any additional information the Legal Hold Manager

deems appropriate.

At the outset of the preservation obligation, important

information such as the storage location of relevant

documents, the identification of key players and even the

scope of the preservation obligation is often unclear. As

a result, an amended legal hold may need to be issued

subsequent to the initial hold. When initiating the legal

hold process, companies should consider whether a third

party may be in possession of relevant documents such

that a legal hold should be issued to that third party as

well. Special attention needs to be paid to information in

locations outside the United States. Some countries have

laws that limit the retention of certain types of information

and the transportation of some information to the United

States for discovery purposes.9

MONITORING & AUDITING LEGAL HOLDS

Notice of a legal hold must be followed by proper

monitoring and auditing of compliance by document

custodians and IT personnel.10 Obtain written

acknowledgements from custodians and IT personnel

indicating their receipt, understanding and agreement

to comply with the document preservation requirements.

Repeat the process of monitoring and auditing at various

stages throughout the legal hold process. Keep these

acknowledgments in a secure location.

9 See, for instance, European Directive 95/46/EC. The Directive (which will be sup-planted by the General Data Protection Regulation in 2018) restricts the transfer of personal data to a country or territory outside the European Union unless that country or territory ensures an “adequate” level of protection for data subjects’ personal data.

10 Zubulake v. UBS, 229 F.R.D.422 (S.D.N.Y. 2004) (Zubulake V) (“It is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.”)

DOCUMENT CUSTODIAN & IT PERSONNEL INTERVIEWS

The Legal Hold Manager should conduct and/or coordinate

interviews of identified document custodians and IT

personnel to enhance compliance with the legal hold policy.

This is an important step in the monitoring and auditing

of a legal hold. Interviews can be used to confirm that

custodians and locations have been fully identified and

that routine deletion practices have been halted. Special

attention should be given to custodians who are considered

to be “key players” in the litigation. Information gathered

during such interviews will often assist with determining the

appropriate scope of preservation and will inform the Legal

Hold Manager of necessary information to include in an

amended legal hold. Custodian and IT personnel interviews

will assist the Legal Hold Manager in determining:

n Relevant time frames and whether ESI creation is ongoing

nWhether there are any additional unidentified key players

nWhether to create “forensic copies” of network or local storage media

nWhether potentially relevant data may be contained on mobile devices

nWhether any ESI is located off site or is in possession

of third parties

nWhether metadata is an issue in the subject litigation

nWhether ESI should be immediately harvested

nWhether the IT department has the requisite skill, software and equipment to appropriately preserve ESI,

for example, with forensic imaging

nWhether any ESI has already been deleted and remains

available only on backup media

nWhether the company’s systems architecture, cycling of backup media, electronic document metrics and relevant

document types pose any specific concerns.

4

E-DISCOVERY

DOCUMENTING THE PRESERVATION PROCESS

Perfection in the preservation of documents is not

required. However, courts require that a party make at

least reasonable good-faith efforts to identify, preserve

and collect relevant documents. Every step of the process,

including the Legal Hold Manager’s decisions and rationale,

should be memorialized with an eye toward illustrating

reasonable decisions made in good faith. Always consider

how best to explain and defend these decisions and the

preservation process.

PROPORTIONALITY PRINCIPLES APPLY

Although the obligation to preserve discoverable materials

is broad, the scope of the duty to preserve is tempered by

general principles of reasonableness and proportionality:

“Must a corporation, upon recognizing the threat of

litigation, preserve every shred of paper, every e-mail

or electronic document, and every backup tape? The

answer is clearly, ‘no.’ Such a rule would cripple large

corporations.” 11

In certain instances it may be defensible for an organization

to determine that preservation is not required or is

necessary only on a small scale. This is true where there is

either a low likelihood of the materials containing relevant

information or where the preservation cost or burden is

excessive and unreasonable compared with the potential

relevance or value of the information. In contrast to disputes

over proportionality at the document review and production

stages of discovery, decisions at the preservation stage

are frequently made unilaterally by the preserving party.

Therefore, to reduce the possibility of later being sanctioned

for failure to preserve materials, an organization should

consider a conservative approach to preservation until a

detailed preservation agreement can be negotiated with

potential adversaries.

11 See Zubulake IV; also see Federal Rule of Civil Procedure 26(b)(1), as amended December 1, 2015 (limiting the scope of discovery to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case…”).

OUTSIDE ESI TECHNICAL CONSULTANTS

Many companies, often including those with large and

sophisticated IT departments, do not have the necessary

resources to preserve ESI; for example, where preservation

requires retention of metadata or forensic imaging.

Even where in-house staff is capable of appropriately

preserving ESI, in many instances ESI and related issues

are so extensive that an outside consultant can be used

effectively to assist in developing and implementing a data

identification and preservation plan.

Roles of outside consultants may range from the creation

of forensic copies of ESI to maintain chain of custody to

the use of data sampling to identify data sources that

are reasonably likely to contain relevant information.

Importantly, the use of an outside technical consultant may

eliminate the need for in-house IT personnel to testify as to

a company’s document retention and preservation efforts.

If the involvement of ESI technical consultants is expected

or needed, doing so early will likely yield significant cost

savings and other efficiencies in efforts to identify, preserve,

collect, process, review and produce ESI.

MEET & CONFER WITH OPPOSING COUNSEL

The Federal Rules of Civil Procedure were first amended to

address issues related to the discovery of ESI in December

2006. Most notably, since that time the rules have required

counsel to discuss the discovery of ESI at the Rule 26 “meet

& confer” conference held at the outset of litigation. Many

states have followed suit and now also require that counsel

“meet & confer” on ESI and other issues, possibly within

100 days of service of process.

Although the requirement to “meet & confer” regarding

ESI creates an obligation at the outset of litigation, early

discussion of ESI issues may allow an organization to

narrow the scope of its preservation obligations. Contrary

to popular belief, the sooner a litigant can openly and

cooperatively come to an agreement with opposing counsel

on preservation obligations, the better.

5

E-DISCOVERY

Prior to entering into an ESI agreement, it may be wise to

make conservative decisions for defensibility purposes.

Once an agreement is reached, preservation obligations

may well diminish. If an agreement cannot be reached, a

motion for protective order should be considered.

NOT REASONABLY ACCESSIBLE ESI

A legal hold should account for “not reasonably accessible”

media, which most often includes backup tapes used for

disaster recovery purposes rather than for ordinary business

purposes.12 As a general rule, a party is not obligated

to preserve all backup tapes even after the preservation

obligation is triggered.13 However, a party may be required

to preserve at least some backup tapes by withdrawing

them from weekly or monthly tape rotation cycles to comply

with the obligation to preserve relevant documents.

When it comes time to search and produce documents, it

may be necessary to affirmatively advise an adversary of

what media will not be searched on the basis of it being

“not reasonably accessible.”14 However, because the scope

of preservation is much broader than that of production,

it is likely that at least some backup tapes should be

preserved. In contrast to backup tapes, absent a showing

of special need and relevance, litigants are typically not

required to preserve, review or produce deleted, shadowed,

fragmented or residual ESI.

12 See The Sedona Conference® Commentary on Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible. https://thesedonaconference.org/publications.

13 See Zubulake V.

14 This may be due to the cost of searching; the cost of searching balanced against other factors, such as the availability of similar ESI in other locations; or the technical IT burdens on the business. Such positions are often met with challenges and requests for sampling. An adversary may take the position that the benefit exceeds the burdens.

SEEK ADVICE FROM LAWYERS EARLY & OFTEN

Lawyers familiar with ESI issues can be of great assistance.

Expect them to have and routinely use:

n Legal Hold Policies & Procedures Templates

n Preservation Notice Templates

n Template Objections & Responses to Requests for ESI

n 30(b)(6) ESI Witness Preparation Outlines

nMotions to Compel / Responses to Motions to Compel Templates

n “Meet & Confer” Outlines

When the preservation duty has been triggered, move

quickly. Ultimately, ESI responsibilities may include a wide

range of issues, such as keyword searching and document

review and production. Although a failure in one of these

areas can typically be cured, the failure to preserve may

be fatal. Assessment of preservation obligations is always

fact-dependent. In furtherance of the duty to make

reasonable, good-faith preservation decisions, the rationale

for decisions should be preserved. Seek the adversary’s

understanding and approval of the decisions made. Absent

that, consider obtaining judicial approval. The ultimate goals

are risk management and cost control while maintaining a

defensible preservation procedure. The way to get there is

cooperation, accuracy and consistency, documenting the

decision-making processes every step of the way.

6

E-DISCOVERY

Thomas W. Tobin | PartnerNew York Metro914.872.7246 | thomas.tobin@wilsonelser.com

Tom Tobin is a seasoned trial lawyer who focuses on complex commercial transportation and

product liability defense matters. During his career of more than 30 years at the firm, Tom has

developed extensive experience representing manufacturers, including clients in the motor

vehicle, railroad, maritime and aviation industries. He serves as co-chair of Wilson Elser’s Product

Liability and e-Discovery practices and chair of the firm’s Railroad practice.

Tom’s legal practice is enhanced by the technical insight and perspective he gained through his

prior work as a mechanical engineer and patent attorney at Union Carbide Corporation. In the product liability context, Tom’s

appreciation for the balanced decision-making process that engineers employ when designing and developing products and

processes enables him to effectively defend clients’ design strategies and refute alternate designs presented by opposing counsel.

As the founding chair of Wilson Elser’s e-Discovery practice, Tom has substantial experience managing e-discovery projects,

from directing preservation of electronically stored information to coordinating document review and production. In addition,

Tom routinely consults with domestic and international clients regarding records management practices.

7

Daniel M. Braude | PartnerNew York Metro914.872.7210 | daniel.braude@wilsonelser.com

Dan Braude, co-chair of Wilson Elser’s e-Discovery practice, focuses on complex litigation

involving product liability and commercial disputes, with an emphasis on related electronic

discovery and document preservation issues. Dan counsels clients on information governance

issues including challenges associated with changing technology, cloud computing, and related

data privacy and information security issues. In addition, Dan serves as an adjunct professor

at Pace University School of Law where he teaches a course on e-discovery.

Dan serves as a resource within the firm and for clients on a wide range of topics relating to

electronically stored information (ESI). He manages electronic document review efforts, evaluates and employs methods

of technology-assisted review, and supervises teams of contract attorneys on large-scale review projects. Additionally,

Dan assists clients with electronic document retention issues and designs legal hold procedures to assist with defensible

and cost-effective ESI preservation. He routinely serves as discovery counsel in commercial and product liability matters,

frequently on behalf of manufacturers engaged in pattern litigation, and represents Wilson Elser as its designated

e-Discovery Liaison for large firm clients.

PAGE TITLEABOUT THE AUTHORS

PAGE TITLEOUR FIRM

8

Wilson Elser helps individuals and organizations transcend challenges and achieve goals by offering an optimal balance of legal excellence and bottom-line value.

Nearly 800 attorneys strong, our firm serves clients of all sizes,

across multiple industries. Wilson Elser has 30 strategically located

offices in the United States and another in London. This depth

and scale has made us one of the nation’s most influential

law firms, ranked in the Am Law 200 and in the top 50 of the

National Law Journal 350.

Since our founding in 1978, Wilson Elser has forged a

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and defense. Our experience in this tightly regulated, cost-

conscious industry has shaped a firm culture of accomplished

professionalism and cost efficiency that delivers demonstrable

value to clients.

Today, Wilson Elser provides clients with full-service, first-

class legal services, spanning the spectrum of litigation

and related areas. We apply the discipline and diligence of

effective litigation to virtually all areas of the law, drawing

on a comprehensive roster of legal services to create

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the firm’s collective intelligence and capabilities.

Our firm’s uncommonly high concentration of seasoned senior

litigators gives us an advantage when handling our clients’ most

challenging and technical cases. More broadly, many of our

attorneys have specialized degrees in business, engineering,

medicine and accounting, as well as extensive on-the-ground

professional experience, which translate into client strategies

that work in the real world.

By combining our attorneys’ deep experience with the vast

resources and technical capacity of a large and highly respected

firm, Wilson Elser consistently provides our clients with sound,

uncompromising legal representation.

2015

9

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OFFICES

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BIOGRAPHIES

Virginia BaltimoreWashington,DC

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JasonR.WatersPartner

Contact

p.703.852.7812f.703.245.9301jason.waters@wilsonelser.com

Asbestos

Asia

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ProductLiability,Prevention&GovernmentCompliance

Railroad

ToxicTort

BarVirginia,Maryland,NewYork,DistrictofColumbia

CourtsU.S.DistrictCourt,DistrictofColumbiaU.S.DistrictCourt,EasternandWesternDistrictsofVirginiaU.S.DistrictCourt,DistrictofMarylandU.S.DistrictCourt,SouthernandWesternDistrictsofNewYorkU.S.CourtofAppeals,FourthCircuitU.S.CourtofAppeals,D.C.CircuitU.S.CourtofAppeals,SecondCircuit

NACUA(NationalAssociationofCollegeandUniversityAttorneys),memberVirginiaAssociationofDefenseAttorneysDRI:TheVoiceoftheDefenseBarNewYorkStateBarAssociationTheSedonaConference,WorkingGroup1

JasonWatersisanexperiencedtrialattorneywhohasdefendedproductliability,toxictortandcommercialcasesthroughouttheUnitedStates.Hehassignificantcourtroomexperienceandisadeptathandlingcomplex,high-riskcasesaswellasmanaginglargedefenseteamsinprolongedlitigation.JasonservesasdeputyregionalmanagingpartnerforWilsonElser'sVirginia-DC-Marylandregion.Jasonmakeshisclients’prioritieshisown.Asheinitiateseachcase,hisapproachistoprepareforalleventualitiesandconsiderallstrategicoptionsinadvancinghisclient’slegalobjectives.Jasonprideshimselfonprovidingsuperiorclientservice.

AreasofFocusProductLiabilityJasonhashandledabroadrangeofcomplexproductliabilitylitigation.Hehasspecificexperiencerepresentingautomotiveandmarinemanufacturersandhasdefendedawidevarietyofconsumerproducts,includingcomputers,cellphones,microwaves,bicycles,lawnandgardenequipment,yachtsandrecreationalwatercraft.Healsohashandlednumerouscasesinvolvingindustrialproducts,suchasinjectionmoldingmachines,labelingequipment,ventilationsystemsandboilersaswellasspecialtyproducts,suchasplumbingcomponents,rollercoasters,automatictraincontrolsystemsandprefabricatedmetalbuildings.

ToxicTortJasonhassignificantnationwideexperienceintoxictortlitigation.Hehashandlednumerouscasesallegingexposuretoasbestos,benzene,carbonmonoxide,industrialpollutants,leadpaintandothercompounds.Hehasrepresentedamajorinsurerinhundredsofclaimsarisingfromexposurestofoodflavorings.Jasonmanagesthedefenseportfolioofamechanicalcontractorsuedinmorethan10,000asbestoscases.Healsohasdefendedcomplexmattersallegingadversereactionstonutritionalsupplements.

TransportationJasonhasconsiderableexperiencehandlingcomplextransportationmatters.Hehasbeenoneoftheleadattorneysdefendingalargemetropolitantransitauthorityinnumerouspersonalinjurycasesarisingfromthecollisionoftwotrains.HealsohasrepresentedaninterstatecarrierinacomplexplacardliabilitymatteranddefendedseveralfoodandbeveragedistributorsinWashington,D.C.andVirginiainpersonalinjuryandpropertydamagematters.

General&ProfessionalLiabilityJasonhasdefendedawidevarietyofcatastrophicinjury,commercialandprofessional

Education

Certifications/Licenses

LanguagesSpokenRussian

SheldonHurwitzYoungLawyerAward,NewYorkStateBarAssociation,2004Up&ComingAttorneysAward,TheDailyRecord,WesternNewYork,2004

SyracuseUniversityCollegeofLaw,J.D.,1999,cumlaude

SyracuseUniversityMaxwellSchoolofCitizenship&PublicAffairs,M.P.A.,1999

UniversityofMissouri,A.B.,1996

liabilityclaims.Hehasrepresentedutilitycompaniesincomplexemergencyresponse-timecases,aswellasarchitects,engineersandattorneysinprofessionalliabilitymatters.Jasonalsohassubstantialexperiencerepresentingeducationalinstitutionsingeneralliabilityandcivilrightsmatters.

E-DiscoveryJasonhassubstantialexperiencemanagingthecollection,reviewandproductionofelectronicallystoredinformation.Duringarecentcase,Jasonsupervisedcollection,review,andproductionofmorethan3millionpagesofmaterial.

RepresentativeMattersDefendedmajormetropolitantransitauthorityinfederalinvestigationandnumerouspersonalinjuryactionsarisingfromacatastrophictrainaccident.

Hassuperviseddefenseportfolioofmechanicalcontractorsuedinmorethan10,000asbestosclaimsinBaltimore,MD.

Servedasnationalcoordinatingcounselforamajorinsurerinmorethan400claimsarisingthroughouttheUnitedStatesfromexposurestodiacetylinpopcornbutterflavoring.

Successfullydefendednutritionalsupplementsmanufacturerincomplexproductliabilitylitigationallegingthattheclient’sproductscausedtotalliverfailure.

Defendedmajoruniversityintwocomplexcivilrightsactionsarisingfromsexualmisconductofcurrentandformerstudents.

ObtaineddismissalofFrenchcorporationsuedintheUnitedStatesinconnectionwithafatalfireonboardanovernighttrainfromParistoMunichonforumnonconveniensandresjudicatagrounds.

Representedanautomotivepartsmanufacturerina$20milliontrade-secretmisappropriationcase.

Washington,DC

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KathleenH.WarinPartner

Contact

p.202.626.9089f.202.628.3606kathleen.warin@wilsonelser.com

Appellate

ClassActionDefense

CommercialLitigation

MedicalMalpractice&HealthCare

ProfessionalLiability&Services

Pharmaceuticals&MedicalDevices

BarDistrictofColumbia,Virginia

CourtsU.S.CourtofAppealsfortheFourthCircuitU.S.CourtofAppealsfortheDistrictofColumbiaU.S.DistrictCourt,DistrictofColumbiaU.S.DistrictCourt,DistrictofMaryland

AmericanBarAssociation

SelectedforinclusioninWashingtonDCSuperLawyersRisingStars,2014

TheGeorgeWashingtonUniversityLawSchool,J.D.,2004

UniversityofNotreDame,B.A.,2000

KathleenWarinconcentratesherlegalpracticeoncomplexcivillitigation,includingproductliability,professionalliabilityandcommercialliabilitycases.Herprofessionalliabilityworkincludesthedefenseofmedicalandlegalnegligencecasesaswellasotherprofessionalnegligence.Kathleenalsoisexperiencedinhandlinghigh-profileproductliabilitycasesinstateandfederalcourtsnationwide,includingconsolidatedandmultidistrictlitigation.Inaddition,Kathleenhasdefendedclassactioncasesinfederalandstatecourtandcomplexcommercialtortcases.Shehassuccessfullyrepresentedclientsattheappellatelevelinfederalandstatecourt.Shealsohasexperienceinmattersinvolvingsecurities,architecture/constructionandbankruptcy.Kathleenhasdefendedmultiplecasesinciviljurytrialsandhasextensiveexperienceinpreparingandarguingmotionsinfederalandstatecourt.Whileinlawschool,Kathleenclerkedforjudgesinastatecourtandfederalappellatecourt,experiencesthathelpedherachievethesignificantinsightsheappliestoherlegalpractice.

AreasofFocusMedicalDevice/ProductLiabilityKathleenhasservedasnationalcoordinatingcounselinaseriesofmedicaldevicecasesacrossthecountry.Herexperienceincludesmanagingthenationaldefenseforsuchcasesinmultidistrictlitigation,consolidatedlitigationandindividualcasesinmultiplejurisdictions.Inaddition,Kathleenhashandledarangeofproductliabilitymatters.LegalMalpracticeKathleen’sdefenseofanattorneybeginswithanimmediateandcomprehensiveassessmentofboththeunderlyingmatterandthemalpracticeclaim,withafocusonearlydismissalthroughpre-answerdispositivemotions.Shehashandledlegalmalpracticeclaimssuchascomplexmattersinvolvingrealestateandcommercialtransactions;securitiesandimmigration;andfraudschemes,includingrealestate“flipping”and“equitystripping”cases.KathleenalsohashandledclaimsundertheRacketeerInfluencedandCorruptOrganizationsAct(RICO)andfailurestocomplywiththeRealEstateSettlementProceduresAct(RESPA),theMarylandProtectionofHomeownersinForeclosureAct(PHIFA)andlocalconsumerprotectionstatutes,amongothers.MedicalMalpracticeKathleenhasdefendedhealthcareprovidersinjurytrials,specializinginthefieldsofobstetrics,gynecology,orthopedics,gastroenterology,anesthesia,internalmedicine,cosmeticsurgery,pediatrics,psychiatryandsurgery.Shealsohasdefendedparamedicsandnursesincomplexmedicalnegligencecases.Inaddition,Kathleenhashandled

casesbroughtunderlocalconsumerprotectionstatutesagainsthealthcareproviders.Shehascoupledherknowledgewiththefirm’sstrengthininsurancedefensetoattractagrowingclientele.CommercialLiabilityInhercommercialliabilitypractice,Kathleenhasworkedonnumerousmattersencompassingvariedspecialties,includingclassactioncases.KathleensuccessfullydefendedaclassactioncaseallegingmisappropriationoffederalbenefitsaswellasclassactionmattersundertheRICOActandtheDefenseBaseAct(DBA)aswellasothercommercialtorts.AppellateKathleenhaswrittenappellatebriefsforcasesforstateandfederalappellatecourts.ShehasarguedbeforetheMarylandCourtofSpecialAppealsandD.C.CourtofAppealsandsuccessfullypetitionedtheMarylandCourtofAppealsforcertiorariinmultiplecases.

RepresentativeMattersCurrentlyservingascoordinatingcounselfornationallitigationinvolvingamedicaldevice.TheteamhassuccessfullyopposedapetitionbeforetheJudicialPanelforMulti-DistrictLitigationtoconsolidatethefederalcourtcasesintomultidistrictlitigation.ObtainedaffirmanceonappealofanawardofsummaryjudgmentafterafullappellatebriefingbytheD.C.CourtofAppealsinaprofessionalnegligencecaseoriginallybroughtagainstanationalveterans'serviceorganization.ObtainedadefenseverdictinajurytrialinapremisesliabilitycaseinvolvingallegationsregardingthesafetyofWashingtonDesignCenterelevators.SuccessfullypetitionedtheMarylandCourtofAppealsforcertiorariinacaseregardingthevalidityofaplaintiff’sexpertopinioncontainedinaCertificateofMeritthatwaslaterdisavowedindeposition.SuccessfullypetitionedtheMarylandCourtofAppealsforcertiorariregardingthesufficiencyofajurydemandinacivilcase,whichtheCourtofAppealsdecidedinourfavor.