Archive - December 2006

Zurich Am. Ins. Co. v. Ace Am. Reinsurance Co., 2006 WL 3771090 (S.D.N.Y. Dec. 22, 2006)

In this reinsurance case, plaintiff sought an order compelling defendant to produce certain claim information. Defendant opposed the motion partly on the basis of undue burden. It explained that, although it processed thousands of claims, its computer system was incapable of segregating claims by the amount of the claim, the type of claim, the identity of the cedent, or the reason the claim may have been denied. The court criticized the argument, stating: “A sophisticated reinsurer that operates a multimillion dollar business is entitled to little sympathy for utilizing an opaque data storage system, particularly when, by the nature of its business, it can reasonably anticipate frequent litigation.” At the same time, the court acknowledged that a search of defendant’s entire database was infeasible in light of the tremendous volume of material accumulated. Accordingly, the court ordered the parties to propose a sampling protocol to obtain examples of claims files in which issues similar to those presented in the case were addressed. In order to facilitate that process, the court further ordered that counsel could take the depositions of persons familiar with defendant’s data storage system. Finally, the court ordered that, to the extent that defendant objected to any sampling proposal advanced by Zurich, it would be required to support its objections with specific evidence of the cost and burden involved.

Exact Software N. Am., Inc. v. Infocon, Inc., 2006 WL 3499992 (N.D. Ohio Dec. 5, 2006)

In this decision, the court concluded that plaintiff’s “persistent and egregious noncompliance with a series of discovery orders” fully warranted severe sanctions, including dismissal of its complaint and entry of default on defendant’s counterclaims. Among other failings, the court noted that plaintiff’s search for documents from its document storage and retrieval system was largely unproductive, and that plaintiff’s counsel had attributed the lack of success to defects in the keywords provided by defendant. The court rejected this attempt to shift blame:
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In re Celexa and Lexapro Prods. Liab. Litig., 2006 WL 3497757 (E.D. Mo. Nov. 13, 2006)

This constitutes the parties’ agreed order and statement as to a document management plan in this multi-district litigation concerning two prescription drugs. Among other things, the parties agreed that plaintiffs would preserve the hard drives of computers used by plaintiffs and plaintiffs’ decedents, and that such hard drives would be imaged and analyzed pursuant to an agreed forensic examination protocol. The parties also agreed that responsive electronically stored information (“ESI”) would be collected by defendants from defendants’ active IT environment, and that “absent some exceptional circumstance and a demonstration by plaintiffs of some substantial need, defendants shall not be required to restore any backup tapes (specifically including but not limited to the 35 back-up tapes defendants made on April 29, 2005, specifically for purposes of this litigation).” The parties agreed that defendants would preserve the 35 backup tapes, but that they may otherwise resume the recycling of backup tapes.

Plaintiffs also agreed to defer to defendants as to the format of production, and specifically agreed to take ESI produced by defendants in any format that generally is searchable and manageable, including in native file format or as single page TIFF images with associated metadata.

The parties were unable to reach agreement on three subject areas, and those matters would be subject to further briefing and argument. Those disputed topics include: (1) how the cost of the discovery plaintiffs seek from defendants should be apportioned; (2) the scope of discovery relating to the production of entire electronic databases; and (3) whether plaintiffs should be allowed to perform their own forensic examination of plaintiffs’ computer hard drives, or whether an independent forensic consultant should perform the analysis.

Palgut v. City of Colo. Springs, 2006 WL 3483442 (D. Colo. Nov. 29, 2006)

This order constitutes the parties’ stipulated Electronic Discovery Plan and Order to Preserve Evidence in this employment discrimination case. It includes definitions of various terms and sets out a number of discovery “protocols,” one of which relates to the format of production. The plan states that, “if requested information is or has been stored or located in native (eg. .doc, .xls, .pst) formats (not .tiff images), any requests for “documents,” or “data” shall be deemed a request for information in native format.” (Emphasis in original). The order then sets out a procedure for objecting to production in native format, which seems to conflate the new Rule 26(b)(2)(B) two-tier discovery provision with the new Rule 34(b) format of production provision:

If either party objects to producing the requested information on the ground that production in that format is not reasonably accessible because of undue burden or cost, prior to asserting an objection, the responding party will inform the requesting party of the format in which it is willing to produce it, the nature and location of the information claimed to not be reasonably accessible, the reason(s) why the requested form of production would impose an undue burden or is unreasonably costly, and afford the requesting party 10 working days (calendar days minus weekends and state or federal holidays) from receipt of such notice to propose an alternative means of compliance with the request, including payment of all or part of the costs of retrieving the information.

The order sets out a similar procedure for objecting to the production of electronic information; it also directs the parties’ computer experts to informally cooperate and discuss procedures or protocols to facilitate identification, retrieval and production of computerized information, prohibits the parties from altering or destroying documents (as that term is defined therein), and directs the parties to meet and confer on the issue of cost allocation.

Plasse v. Tyco Elecs. Corp., 2006 WL 3445610 (D. Mass. Nov. 8, 2006)

This decision follows the court’s earlier order on sanctions, summarized here, in which the court dismissed the complaint with prejudice and invited the defendant to file an application for attorneys’ fees. Defendant sought $79,524.07 in attorney’s fees and costs in the amount of $20,472.32. The court noted there was ample justification for a fee award in the record, since the evidence showed that the plaintiff “not only altered and destroyed evidence to prevent relevant discovery by Defendant, but continued to modify and destroy evidence even after the court itself had made it clear that the evidence constituted an appropriate area of inquiry for Defendant.” It reduced the attorney fee amount but awarded full costs, stating:

Given Plaintiff’s egregious conduct, an award of fees and costs is only fair. Given the record of this case, however, a fee award of nearly $80,000 would be excessive. The record of the case, as Plaintiff points out, evidences some degree of duplication and overkill. Based on this, the court will award attorney’s fees in the amount of $35,000.00. The court will award Defendant its full costs, since retention of experts was particularly necessary to uncover Plaintiff’s skulduggery.