1. Session 6 ERM Case Law: The Annual MER Update of the Latest News, Trends, & Issues Hon. John M. Facciola United States District Court, District of Columbia Kenneth J. Withers, Esq. Deputy Executive Director, The Sedona Conference ®

2. The “Duty of Preservation”  In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, 2013 WL 5377164 (S.D. Ill. Sept. 25, 2013) In the 7 th Circuit, the duty of preservation arises when the party “knew or should have known litigation was imminent.” May 19, 20146. MER Case Law Update2

3. The “Duty of Preservation”  In re Actos (Pioglitazone) Products Liability Litigation, 2014 WL 308909 (W.D. La. Jan. 27, 2014) The duty of preservation for class action was triggered by individual action several years before, when a broad litigation hold over all documents related to particular product was issued. May 19, 20146. MER Case Law Update3

4. Records Management Policies  Pillay v. Millard Refrigerated Serv., Inc., 2013 WL 2251727 (N.D. Ill. May 22, 2013). In an employment discrimination case, a finding of bad faith was not necessary to impose spoliation sanctions when the defendant was on notice of litigation and there was no attempt to halt the automatic deletion of relevant data in the defendant’s labor management system. May 19, 20146. MER Case Law Update4

5. Records Management Policies  In re Ethicon, Inc. Pelvic Repair Systems Product Liability Litigation, 2014 WL 439785 (S.D. W.Va. Feb. 4, 2014) The destruction of records by IT department employees pursuant to routine procedures did not constitute sanctionable spoliation. May 19, 20146. MER Case Law Update5

6. The Litigation Hold  Herrmann v. Rain Link, Inc., 2013 WL 4028759 (D. Kan. Aug. 7, 2013) Court denies imposition of spoliation sanctions for employees’ intentional (but not bad faith) destruction of computer files, where no prejudice to the requesting party found as a result of the destruction. May 19, 20146. MER Case Law Update6

7. The Litigation Hold  Sekisui American Corp. v. Hart, 945 F. Supp. 2d 494 (S.D.N.Y. 2013) Spoliation sanctions imposed for failure to issue a litigation hold until several months after litigation contemplated and intentional (but not necessarily bad faith) destruction of relevant computer files. May 19, 20146. MER Case Law Update7

8. The Litigation Hold  Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, 2013 WL 6159177 (S.D. Cal. Nov. 25, 2013) Spoliation sanction imposed for failure to issue a litigation hold, resulting in employees’ intentional (but not bad faith) destruction of computer files. May 19, 20146. MER Case Law Update8

9. Technology-Assisted Review  In re Biomet M2a Magnum Hip Implant Products Liability Litigation, 2013 WL 1729682 (N.D. Ind. 2013) Predictive coding protocol, while not perfect, was reasonable and ordering an expensive re- run would be unduly burdensome. May 19, 20146. MER Case Law Update9

10. Technology-Assisted Review  Gordon v. Kaleida Health, 2013 WL 2250579 (W.D.N.Y. 2013); Hinterberger v. Catholic Health System, Inc., 2013 WL 2250603 (W.D.N.Y. 2013) General observations (Sedona Principle 6 and the Cooperation Proclamation):  When asked by the producing party to approve the use of predictive coding, courts will defer to the party but require a degree of transparency and cooperation.  When asked by the requesting party to order the use of predictive coding, courts will decline, but require the parties to cooperate on a reasonable and proportionate protocol. May 19, 20146. MER Case Law Update10

11. Technology-Assisted Review  Federal Housing Finance Agency v. HSBC, 2014 WL 584300 (S.D.N.Y. Feb. 14, 2014) Court denied request to broaden discovery after predictive coding protocol implemented. May 19, 20146. MER Case Law Update11

12. Proportionality  McPherson v. Canon Business Solutions, Inc., 2014 WL 654573 (D.N.J. Feb. 20, 2014) In putative Fair Credit Reporting Act class action, the court granted limited discovery into the past five years and a random ten percent sample of otherwise eligible class members, to balance the plaintiff’s need for the data against the defendant’s burden of preservation and production. May 19, 20146. MER Case Law Update12

13. Proposed Rule 26(b)(1) “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” May 19, 20146. MER Case Law Update13

14. Proposed Rule 26(b)(1)  Would any of our cases been decided differently under this proposed amendment?  Will this proposed amendment either reduce preservation costs OR result in the loss of otherwise discoverable evidence?  What is the prognosis for this amendment being adopted? May 19, 20146. MER Case Law Update14

15. Proposed Rule 37(e) If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may: (1) Order measures no greater than necessary to cure the loss of information, including permitting additional discovery; requiring the party to produce information that would otherwise not be reasonably accessible; and ordering the party to pay the reasonable expenses caused by the loss, including attorney’s fees. May 19, 20146. MER Case Law Update15

16. Proposed Rule 37(e) If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may: [...] (2) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice. May 19, 20146. MER Case Law Update16

17. Proposed Rule 37(e) If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may: [...] (3)Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation: 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. May 19, 20146. MER Case Law Update17

18. Proposed Rule 37(e) (4) In applying Rule 37(e), the court should consider all relevant factors, including : A. the extent to which the party was on notice that litigation was likely and that the information would be relevant; B. the reasonableness of the party’s efforts to preserve the information; C. the proportionality of the preservation efforts to any anticipated or ongoing litigation; and D. whether, after commencement of the action, the party timely sought the court's guidance on any unresolved disputes about preserving discoverable information. May 19, 20146. MER Case Law Update18

19. Proposed Rule 37(e)  Would any of our cases been decided differently under this proposed amendment?  Will this proposed amendment either reduce preservation costs OR result in the loss of otherwise discoverable evidence?  What is the prognosis for this amendment being adopted? May 19, 20146. MER Case Law Update19

20. Need more information? Kenneth J. Withers Deputy Executive Director kjw@sedonaconference.org https://sedonaconference.org May 19, 20149. MER Case Law Update20