Join Logikcull and a panel of experts for lessons and best practices to be learned from the most important eDiscovery cases -- and debacles -- of the year. Seven cases will be featured. Come for the hardcore precedence. Stay for the surprise bonus lessons. Michael Simon and Timothy Lohse will host.

1. 2017 eDiscovery Caselaw Update
May 11, 2017

2. Agenda
Are Boilerplate discovery responses finally out of fashion?
Forrest Gump can hand out treats from a box on a park bench. You can’t
Sanctions, sanctions and more sanctions . . . except for those last 2
The Supremes weigh in on “inherent authority” to sanction

3. Presenters
Michael Simon | Attorney and Consultant | Seventh Samurai
Timothy Lohse | Partner | Patent Litigation | DLA Piper

4. >>> Boilerplate Discovery Responses Might Finally Be Passe

5. Boilerplate
The hallmark of a boilerplate objection is its generality. The word
“boilerplate” refers to “trite, hackneyed writing” . . .
it merely states the legal grounds for the objection without specifying
how (1) the request is deficient and (2) the harm to the objecting
party
Matthew Jarvey “BOILERPLATE DISCOVERY OBJECTIONS: HOW THEY ARE USED, WHY THEY ARE WRONG, AND
WHAT WE CAN DO ABOUT THEM” 61 Drake L.J. 913 (2013)

6. “If there is a hell to which disputatious,
uncivil, vituperative lawyers go, let it be
one in which the damned are eternally
locked in discovery disputes with other
lawyers of equally repugnant
attributes.”
Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th
Cir. 1996)

7. Mancia v. Mayflower Textile Servs. Co.,
253 F.R.D. 354 (D. Md. Oct. 15, 2008)
“It would be difficult to dispute the notion that the
very act of making such boilerplate objections is
prima facie evidence of a Rule 26(g) violation
. . . because if the lawyer had paused, made a
reasonable inquiry, and discovered facts that
demonstrated the burdensomeness or excessive
cost of the discovery request, he or she should
have disclosed them in the objection, as both Rule
33 and 34 responses must state objections with
particularity, on pain of waiver.”

8. 2014 Report of the Judicial Conference
Committee on the 2015 amendments
“the use of broad, boilerplate objections that provide
little information about the true reason a party is
objecting; responses that state various objections,
produce some information, and do not indicate
whether anything else has been withheld from
discovery on the basis of the objections.”

9. Fischer v. Forrest, Case No. 1:2014 cv
01304 (S.D.N.Y. Feb. 28, 2017)
“[i]t is time for all counsel to learn the now-
current Rules and update their 'form' files.
From now on in cases before this Court, any
discovery response that does not comply
with Rule 34's requirement to state
objections with specificity (and to clearly
indicate whether responsive material is being
withheld on the basis of objection) will be
deemed a waiver of all objections (except as
to privilege).”

10. >>> Surprise Bonus Lesson!

12. Liguria Foods, Inc. v. Griffith Laboratories,
Inc., Case No. C14-3041 (N.D. Ia. March 13,
2017)
"NO MORE WARNINGS. IN THE
FUTURE, USING 'BOILERPLATE'
OBJECTIONS TO DISCOVERY IN
ANY CASE BEFORE ME PLACES
COUNSEL AND THEIR CLIENTS AT
RISK FOR SUBSTANTIAL
SANCTIONS."

13. Liguria Foods, Inc. v. Griffith Laboratories,
Inc., Case No. C14-3041 (N.D. Ia. March 13,
2017)
"NO MORE WARNINGS. IN THE
FUTURE, USING 'BOILERPLATE'
OBJECTIONS TO DISCOVERY IN
ANY CASE BEFORE ME PLACES
COUNSEL AND THEIR CLIENTS AT
RISK FOR SUBSTANTIAL
SANCTIONS."

14. >>> How NOT to Protect Client Confidentiality

16. [Plaintiff] has conceded that its actions were the cyber world equivalent of leaving its
claims file on a bench in the public square and telling its counsel where they could find it.

17. [Plaintiff] has conceded that its actions were the cyber world equivalent of leaving its
claims file on a bench in the public square and telling its counsel where they could find it.
It is hard to image an act that would be more contrary to protecting the confidentiality of information than to
post that information to the world wide web.

18. Harleysville Ins. Co. v. Holding Funeral
Home, Inc., Case No. 1:15cv00057
(W.D. Va. Feb. 9, 2017)

19. We will try to make this simple . . .

20. Insurance company needs to get big video file to investigator

21. Step 1: Insurance company puts video in unsecured Box folder

22. Step 2: Company re-uses Box to get confidential case file to attorneys

23. Step 3: Attorneys download copy of case file

24. Step 4: Plaintiff’s attorneys get the email from NICB with the
Box link in subpoena response

25. Step 5: Plaintiff’s attorneys use that link to download the
confidential case file

26. Step 6: All Hell breaks loose

28. Insurer claims privilege, seeks return of file
Attorney-client privilege = state law ≠ sufficient precautions to protect privilege
Work product doctrine = FRE 502(b) ≠ “inadvertent” so not applicable
Strongly implies that even the FRE 502(d) “Get of Jail Free Card” wouldn’t work!

29. Easy question
So, who got sanctioned?

30. >>> Surprise Bonus Lesson!

32. Sanctions entered against DEFENDANTS
Lawyers have an ethical duty regarding potentially privileged info from other side
Confidentiality notice on email = clear sign
Defense counsel had duty to inform other side
Must sequester it
Then await court ruling
= What plaintiff’s attorneys did with inadvertently disclosed defense info

33. Sanctions entered against DEFENDANTS
Defendants sought bar ethics opinion
In the meantime, read file
Sent to other defendants
And law enforcement
AND then produced it in discovery to plaintiffs!
= Not disqualified, but sanctioned for costs

35. >>> Sanctions are Easing
But You Still Might Get Slammed For Doing Stuff that Looks Bad

36. The new 37(e) =
RIP for sanctions
due to
innocent mistakes
But what about
seemingly not-so-
innocent mistakes?

37. HCC Ins. Holdings, Inc. v. Flowers,
Case No. 1:15-cv-3262 (N.D. Ga. Jan. 30, 2017)
• Moved 8,000+ emails to a shared drive
• Deleted 1,000+ emails (plenty of room)
• Copied 500 key client docs (not normally her
job)
• Deleted the docs a week later;
• Continued to use her computer after
resigning
• Tried to keep her computer over the
weekend
• Ran computer wiping, defrag and undelete
apps on laptop after the start of the litigation
• Ran them again day after the court ordered
her to turn over computer for forensic
examination
Alabama Aircraft Indus., Inc. v. Boeing Co.,
No. 2:11-cv-03577 (N.D. Ala. Mar. 9, 2017)
• Contracting team deleted all ESI from the
contracting team CFO, the second-highest
member of the team
• No archives of the team CFO’s files were kept
• 2 CDs of ESI from a key analyst were lost by
inhouse attorney
• 3 other employees of the defendant who were
more peripherally involved did not receive the
litigation hold notice or deleted emails anyway

38. HCC Ins. Holdings, Inc. v. Flowers,
Case No. 1:15-cv-3262 (N.D. Ga. Jan. 30, 2017)
• Moved 8,000+ emails to a shared drive
• Deleted 1,000+ emails (plenty of room)
• Copied 500 key client docs (not normally her
job)
• Deleted the docs a week later;
• Continued to use her computer after
resigning
• Tried to keep her computer over the
weekend
• Ran computer wiping, defrag and undelete
apps on laptop after the start of the litigation
• Ran them again day after the court ordered
her to turn over computer for forensic
examination
Alabama Aircraft Indus., Inc. v. Boeing Co.,
No. 2:11-cv-03577 (N.D. Ala. Mar. 9, 2017)
• Contracting team deleted all ESI from the
contracting team CFO, the second-highest
member of the team
• No archives of the team CFO’s files were kept
• 2 CDs of ESI from a key analyst were lost by
inhouse attorney
• 3 other employees of the defendant who were
more peripherally involved did not receive the
litigation hold notice or deleted emails anyway

39. HCC Ins. Holdings, Inc. v. Flowers,
Case No. 1:15-cv-3262 (N.D. Ga. Jan. 30, 2017)
• Moved 8,000+ emails to a shared drive
• Deleted 1,000+ emails (plenty of room)
• Copied 500 key client docs (not normally her
job)
• Deleted the docs a week later;
• Continued to use her computer after
resigning
• Tried to keep her computer over the
weekend
• Ran computer wiping, defrag and undelete
apps on laptop after the start of the litigation
• Ran them again day after the court ordered
her to turn over computer for forensic
examination
Alabama Aircraft Indus., Inc. v. Boeing Co.,
No. 2:11-cv-03577 (N.D. Ala. Mar. 9, 2017)
• Contracting team deleted all ESI from the
contracting team CFO, the second-highest
member of the team
• No archives of the team CFO’s files were kept
• 2 CDs of ESI from a key analyst were lost by
inhouse attorney
• 3 other employees of the defendant who were
more peripherally involved did not receive the
litigation hold notice or deleted emails anyway

40. >>> Surprise Bonus Lesson!

42. >>> The Supremes Weigh In: “Inherent Authority” = Here to Stay!
(with some limitations on causal connection . . . )

43. Goodyear Tire & Rubber Co. v. Haeger et al., No. 15–1406 (April 18,
2017)

45. Undisclosed ESI – until AFTER the case settled
“Mr. Taylor [a Goodyear engineer]
located “electronic post-production
W84 high speed test data on the
G159 Tire.”
“When he discovered that data,
Mr. Taylor also “discovered L04
heat rise test results for the G159
Tire in the same electronic
database.”
Court entered broad sanctions under
“inherent authority” = nearly all case costs
The high speed test was produced late
- the heat rise test was NEVER produced

46. 37(e) question: do the courts still have “inherent authority to
sanction discovery misconduct?
Comments to new Rule 37(e):
New Rule 37(e) . . . forecloses reliance on
inherent authority or state law to determine when
certain measures should be used.
See also, Fiteq Inc. v. Venture Corp., No. 13-cv-01946
(N.D. Cal. Apr. 28, 2016) and Brown Jordan Int’l, Inc. v.
Carmicle, No. 14-cv-60629 (S.D. Fla. Mar. 2, 2016)

47. 37(e) question: do the courts still have “inherent authority to
sanction discovery misconduct?
Chief Magistrate Judge James Francis in CAT3
LLC v. Black Lineage, Inc., No. 14 Civ. 5511
(S.D.N.Y. Jan. 12, 2016):
If, notwithstanding this reasoning, Rule
37(e) were construed not to apply to the facts
here, I could nevertheless exercise inherent
authority to remedy spoliation under the
circumstances presented.
See also, Internmatch Inc. v. Nxtbgthing LLC, No.14-
cv-05438 (N.D. Cal. Feb. 8, 2016)
Comments to new Rule 37(e):
New Rule 37(e) . . . forecloses reliance on
inherent authority or state law to determine when
certain measures should be used.
See also, Fiteq Inc. v. Venture Corp., No. 13-cv-01946
(N.D. Cal. Apr. 28, 2016) and Brown Jordan Int’l, Inc. v.
Carmicle, No. 14-cv-60629 (S.D. Fla. Mar. 2, 2016)

48. Approved of inherent authority
But sanctions were limited to ameliorating the specific harm done by the bad act
The award was simply too broad under that standard

49. 2017 eDiscovery Caselaw Update
Thank you for attending!
May 11, 2017

50. >>> FRCP 34 Set the Production Format Dance Steps in 2006
(so isn’t well past time that everybody has learned them???)

51. 1. The requesting party specifies the format
for production;
2. If the requesting party does not specify a
format, or if the producing party objects to
the format, the producing party must
propose a format; and
3. If no party specifies a format, the ESI must
be produced in the form it was ordinarily
maintained or a reasonably usable format.
FRCP 34(b)(1)(C) and
(2)(E)

52. Morgan Hill Concerned Parents Ass’n v. Cal.
Dep’t of Educ., No. 2:11-cv-3471 (E.D. Cal. Feb.
1, 2017)
Plaintiffs requested native docs with
metadata
Defendants produced images with load file
Defendant claimed it wasn’t fair to force
them to use a format just because it would
be easier for requestor
Which, as the judge pointed out, is
actually the very point of the idea!

53. Morgan Hill Concerned Parents Ass’n v. Cal.
Dep’t of Educ., No. 2:11-cv-3471 (E.D. Cal. Feb.
1, 2017)
Defendant also claimed that FRCP 34
protected them against having to produce
docs twice
But judge pointed out that this was a
problem of their own making – ignored
format requirements
Defendants then claimed that native files
with metadata would imperil the attorney-
client privilege
But the privilege log was woefully deficient =
could not claim protection

54. >>> Surprise Bonus Lesson!

55. Is Rule 34(b) now a trap?
“Loser pays” - federal cost-taxing
statute, 28 U.S.C. § 1920(4)
Requestors hit with costs for
making specific format demands
Even industry-standard formats!
(like TIFF plus load file)
(See Logikcull blog May 5th post)

56. 2017 eDiscovery Caselaw Update
Thank you for attending!
May 11, 2017