[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Felder v. MGM National Harbor, LLC, 2024 WL 3690779(D. Md. Aug. 7, 2024)(Simms, J.), addresses several important issues.
First, in Felder, the Court ordered the parties to conduct a “meet and confer” session. That, of course, is unremarkable. However, the Court also ordered that the parties have a court reporter transcribe the session and the Court reviewed the transcript to resolve post-meeting discovery disputes. Felder: Part 1 of 4: Court-Ordered Transcription of “Meet and Confer” Session. While recording Rule 26(f) conferences has been described as a “drastic measure,” the late Judge Waxse suggested that “[j]ust the idea that I’ll be watching it seems to put [participants] all on their best behavior and suddenly they have an agreement.” Id. In any event, the idea worked in Felder. The prior blog sets out my personal views on this tactic. It is also discussed in Julia Helmer, This Week in eDiscovery: Email Preservation or Computer Fraud? Recording Meet-and-Confers | Array – JDSupra,
Second, the Felder Court sanctioned the defendant for a last-minute cancelation of depositions. For example, the defendant had noted the deposition of Ms. Jones to take place on Monday, February 27th, which was the day before the discovery cutoff. However, on February 23rd, the defendant obtained a declaration from Ms. Jones. Then, on Saturday, February 25th, the defendant notified plaintiff that the Monday deposition was being canceled. The plaintiff asserted prejudice as a result. The Court wrote that: “Defendant notified Plaintiff on Saturday February 25 that it was cancelling the February 27 depositions of Jones and Fisher; indeed, this last-minute, weekend notice did not provide Plaintiff with … notice at least one business day in advance. Such conduct strikes the undersigned as discourteous, unfair, and worthy of some sort of sanction.” In my less elegant words, even a dog knows the difference between being tripped over and being kicked. For additional detail, please see Felder Part 2 of 4: Defendant Sanctioned for Late Cancellation of Depositions.
Third, in Felder Part 3 of 4: Defendant’s Overwriting of Video Footage After 14 Days Was Held Not to be Spoliation. MGM overwrote security video every 14 days under its information governance policy. Ms. Felder did not send a preservation demand or notice of intent to sue until 60 days after the event at issue. When she sought production of the security video in discovery, defendant responded that it had been overwritten under its routine information governance policy. The Court denied the plaintiff’s request for sanctions. It wrote that: “As a preliminary matter, it is worth stating that ‘there is no general duty to preserve documents, things or information, whether electronically stored or otherwise.’” The Court explained that:
In sum, Plaintiff has not met her burden of demonstrating that Defendant had an obligation to preserve the September 2017 video when it was recorded over on or about October 4, 2017.… Nor can the Court find that Plaintiff has met her burden under Fed. R. Civ. P. 37(e), i.e., in demonstrating that the video footage constituted ‘ESI [that] should have been preserved’ but was ‘lost’ due to Defendant’s ‘failure to take reasonable steps to preserve’ the video.
Felder v. MGM National Harbor, LLC, 2024 WL 3690779(D. Md. Aug. 7, 2024)(Simms, J.).
In the prior blog, I suggest that one lesson learned from Felder is that companies rapidly overwrite video and if a party anticipates relying on a prospective opponent’s security or surveillance video, it is prudent to immediately send a specific preservation letter to that prospective party.
In the last blog, I pose a question: Felder Part 4 of 4: Was the Felder Defendant’s 14-Day Video Overwriting Policy Defensible? Prior to December 2015, the Federal Rules of Civil Procedure generally prohibited sanctions under the Rules when ESI went missing due to the routine, good faith operation of an electronic information system. That “safe harbor” was removed from Fed.R.Civ.P. 37(e) by the December 2015 amendments. Under Lewy v. Remington Arms Co., Inc., 836 F.2d 1104, 1112 (8th Cir. 1988), “a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy.” The prior blog describes a more nuanced analysis of information governance and suggests some questions that a litigant faced with information destruction on such a policy might want to ask.
All-in-all, Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), is an important, well-researched and well-written decision and it addresses several important issues.
Previous Blog Posts in this Series
Felder Part 1 of 4: Court-Ordered Transcription of “Meet and Confer” Session
Felder Part 2 of 4: Defendant Sanctioned for Late Cancellation of Depositions
Felder Part 3 of 4: Defendant’s Overwriting of Video Footage After 14 Days Held Not to be Spoliation
Felder Part 4 of 4: Was the Felder Defendant’s 14-Day Video Overwriting Policy Defensible?
