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 September 9-15. Here’s what’s happening.
Making an argument for the duty to preserve
When retail store surveillance videos may be relevant in litigation, when does the duty to preserve that evidence arise?
In Klock v. Wal-Mart Stores East, LP, a shopper sued the retailer because she reportedly slipped and fell in one of their stores. When the store’s asset manager was deposed, he said he reviewed the store’s surveillance video and found that no cameras were trained on the area where the incident occurred. The plaintiff argued there must have been some video of the incident.
As the judge wrote, “it appears as though Plaintiff is arguing spoliation of evidence.” She ultimately ruled against the shopper on that point — partly because the shopper couldn’t show the defendants had an obligation to preserve the video when it was allegedly destroyed. (Though, as the judge noted, there’s also no evidence such a video existed in the first place.)
In his post on the EDRM Blog, Michael Berman pushes back on the judge’s thinking on duty to preserve. If a party can reasonably anticipate litigation, he writes, the duty to preserve takes effect, even if the other party hasn’t sent a notice yet. After all, Berman notes, the defendants promptly took a witness statement and photos, cleaned the floor and took the plaintiff to the store’s pharmacy to treat her cuts and scrapes. All of these actions could have led the defense to have a reasonable expectation of litigation, he writes.
While no sanctions were imposed in this matter, it’s a good reminder that securing ESI can be tricky sometimes. Parties should have policies in place that detail when evidence should and should not be preserved so that they don’t have to worry about spoliation claims, especially when occurrences such as slip-and-falls happen regularly at a place of business.
Reasonable precautions and inadvertent disclosure
Mistakes happen in discovery. But it’s critical for parties to take reasonable steps to prevent that from happening.
At eDiscovery Today, Doug Austin writes about U.S. ex rel. Omni Healthcare, Inc. v. MD Spine Sols. LLC, a case where the defendants were alleged to have misled the plaintiff into ordering “expensive and medically unnecessary” urine tests for patients.
In this matter, the defendants claimed they had inadvertently produced more than 600 privileged documents. The documents were shared first with the federal government, which shared them with Omni Healthcare under a Common Interest Agreement. The defense attempted to claw back those documents but was not successful. The judge found the defendants had waived privilege, partly because of timeliness, partly because they didn’t take reasonable precautions to prevent inadvertent disclosure.
Looking at the defendants’ cover letter for their December 30, 2020, production to the U.S., the judge said it “suggests that MD Labs itself, and not its counsel, conducted the privilege review in the first instance. Relying on a party to conduct its own review without counsel’s involvement, at least in part, is hardly a reasonable precaution.”
An organization’s counsel needs to be an active part of the discovery process, including the review of potentially privileged documents. An early error in this stage has the potential to create much bigger problems later — the kind that can’t always be solved by clawback rules.
Other recent eDiscovery news and headlines:
- Intent to Deprive Signal Messages Leads to Case Dismissal: eDiscovery Case Law (eDiscovery Today)
- From Evidence to Misinformation: Courts Brace for Deepfake Challenges (ComplexDiscovery)
- Possession, Custody, or Control of Responsive Information by States Suing Meta (EDRM Blog)
Julia Helmer; Director, Client Solutions
With a decade 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.
