Insights Articles

Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of January 5-11. Here’s what’s happening.

Judge orders fitness app data to be produced in work comp case

A federal magistrate has ordered the plaintiff in a worker’s compensation claim to produce hiking data available to her through a GPS application called onX that offers backcountry trail maps and allows users to record their path as they travel.

In Fitch v. BNSF Railway Company, the plaintiff alleges she was injured while working as a member of a train crew in North Dakota when the train went into an emergency stop, throwing her into the nose of the locomotive and causing injuries to her right arm, shoulder, and head. The plaintiff’s doctor wrote she is unable to work, “has cognitive and physical deficits due to a traumatic brain injury and brachial plexopathy. She is unable to reach, lift, bend, crawl, twist, sit for more than 10 minutes, stand for more than 10 minutes, or ambulate for more than 10 minutes. She is unable to use a computer, be asked to make critical decisions, read documents, or problem solve in a work setting.”

But during a deposition, the plaintiff said she continues to hike, though with difficulty. Although Fitch denied using a Fitbit or Apple Watch on hikes, she later revealed in the deposition that she uses onX as a tool to verify her location.

BNSF filed a motion to compel and order Fitch to produce information available on her onX app, or to authorize BNSF to collect it. Fitch argued the onX information is not relevant and is an “overbroad publicization” of her private location data. The court disagreed, stating “it stands to reason she has placed her ability to engage in daily and/or recreational activities at issue,” and ordered the plaintiff to produce the hiking data after the parties submit an appropriate proposed protective order to the court.

This case reminds us that ESI can be everywhere – not just in emails or documents stored on a computer. Working with a knowledgeable eDiscovery services provider that is familiar with data retrieval from non-standard sources, such as wearable technology, may help with obtaining critical data that can assist with defending your matter.

Parent companies, subsidiaries, and privilege

On the EDRM blog, Michael Berman writes about a privilege dispute in Fond-du-Lac Band of Lake Superior Chippewa v. Cummins, in which the plaintiff wanted a review of a land exchange between the U.S. Forest Service and a mining company called PolyMet. PolyMet contended that about 500 documents were privileged because they included communication with PolyMet Corp., PolyMet’s former parent company, and both companies were represented by the attorneys on PolyMet’s privilege log.

However, the reviewing judge disagreed and affirmed the magistrate judge’s order, writing: “Given these conflicting authorities, it is at least arguable whether, as a matter of law, a parent and its wholly owned subsidiary always and automatically share all legal interests in common. In any event, PolyMet could not have expected Judge Brisbois to decide this issue—or any other issue related to application of the joint-representation rule—without briefing and argument on the matter.”

Privilege logs can be nuanced and authorities disagree on the level of detail that must be included when producing them. It can be helpful to discuss and agree to the type, format, and information to be included on logs upfront in the ESI protocol so that disputes are minimized as productions and privilege logs are delivered.

Other recent eDiscovery news and headlines:

• Leery Lawyer’s Guide to AI (Ball in Your Court)
• Privilege Log, Privilege Log — It’s All About the Description (eDiscovery Assistant blog)
• Produce Unredacted Versions of Non-Privileged Text Messages, Says Court (eDiscovery Today)

Julia Helmer; Director, Client Solutions

With 15 years of expertise, Julia excels at optimizing enterprise eDiscovery workflows from start to finish. With a deep understanding of how to seamlessly integrate workflows across various eDiscovery platforms, Julia creates tailored solutions for data identification, legal holds, ESI collections, and productions. By harnessing the power of Technology Assisted Review and Analytics, she delivers efficient, cost-effective results that align with best practices and budgetary constraints. Julia’s exceptional communication and customer service skills have fostered strong, lasting relationships with both clients and Project Management teams, enabling her to effectively problem-solve and drive success across numerous projects.