While new forms of ESI have created new challenges in e-discovery, recent e-discovery decisions show that legal teams are granted less leeway than they used to get and are expected to master new platforms and sources of data.
[Editor’s Note: EDRM is grateful to Cassandre Coyer of Legaltech News for covering the webinar, “The 7 Most Important E-Discovery Cases of 2022” sponsored by eDiscovery Today with Doug Austin, Hon. Judge Andrew Peck (ret.), Tom O’Connor & Mary Mack, to be replayed December 13.]
It’s been another busy year for e-discovery.
As data privacy laws continue to expand, and forms of ESI keep evolving, e-discovery has only gotten more complicated. More recently, the challenges that emerging technologies have brought to the field reached the public eye when e-discovery blunders were central in two highly publicized cases: the Alex Jones and Jan.6 investigations.
During E-Discovery Day’s “The 7 Most Important E-Discovery Cases of 2022” webinar on Dec. 1, e-discovery experts discussed takeaways from some of the most important e-discovery case law rulings of the year, from the challenges that come with multiple ESI sources and video evidence to how to navigate proportionality.
They could have argued that, because the Salesforce database is dynamic, that the screenshots that they could take today would not have been comparable to the plaintiff screenshots. They also failed to present any evidence to the magistrate judge about how the Salesforce database works.
Hon. Andrew Peck (Ret.), Senior Counsel at DLA Piper
1. Back It Up
The Fast v. GoDaddy.com case in the U.S. District Court for the District of Arizona, involving sex and disability discrimination claims regarding a terminated employee of defendant GoDaddy, was only one of this year’s examples of spoliation of multiple ESI sources.
In this case, plaintiff Kristin Fast, failed to take steps to preserve critical Facebook posts, unsent Facebook Messenger messages and the contents of her phone, among other information. While the plaintiff was susceptible to sanctions under Rule 37(c)(1) of the Federal Rules of Civil Procedure (FRCP), Mary Mack, CEO and Chief Legal Technologist at EDRM, noted that the plaintiff’s lawyer definitely held some responsibility in this case.
“It is dangerous to allow a client to preserve in place … you want to get everything that you can copied and out of their hands,” she said, adding, “if a cellphone is going to go missing, or there’s a potential that it can go missing, forensically back it up.”
2. Understand Different Forms of Production
In the Famulare v. Gannett employment discrimination case in the U.S. District Court for the District of New Jersey, the main issue boiled down to different types of document format. A former Gannett employee printed reports of her own performance metrics from Salesforce and requested the same Salesforce reports for other employees for comparison purposes.
The defendant claimed they could not generate the requested reports as they said that the reports the plaintiff produced were not free-standing, fixed reports, but screenshots that displayed the user’s real-time data. Instead, they said they could provide her with Salesforce’s underlying historical data.
Former Magistrate Judge Andrew J. Peck, who is now senior counsel at DLA Piper, noted that, in the case, the defendants failed to provide evidence of how the database’s dynamics would make the screenshots incomparable.
“They could have argued that, because the Salesforce database is dynamic, that the screenshots that they could take today would not have been comparable to the plaintiff screenshots,” Peck said. He added, “They also failed to present any evidence to the magistrate judge about how the Salesforce database works.”
In fact, Mack noted that legal teams should not only understand the platforms they’re working with, but also ensure that the judge in the courtroom has enough information to rule.
Watch the webinar here. (Updated, June 29, 2923)
