Archive - 2009

Spieker v. Quest Cherokee, LLC, 2009 WL 2168892 (D. Kan. July 21, 2009)

This matter was before the court on plaintiffs’ renewed motion to compel the production of electronically stored information (“ESI”).  Previously, the court denied a motion to compel without prejudice for reasons including plaintiffs’ failure to establish the relevance of the material requested and defendant’s estimated cost to comply and directed the parties to address recently enacted Fed. R. Evid. 502 in any future discussions of production and costs.  The parties were unable to reach agreement regarding production, and plaintiffs filed a renewed motion to compel.  Upon finding that plaintiffs had established the relevance of the material requested and that defendant’s estimated costs of production were “greatly exaggerated,” the court granted the motion.

Read More

Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494 (D. Md. 2009)

In this case arising from a claim for breach of contract, plaintiff Goodman alleged that defendant Praxair Services, Inc. (formerly Tracer) (“Tracer/PSI”) spoliated relevant data and was deserving of sanctions.  Specifically, Goodman alleged that Tracer/PSI violated is duty to preserve when it failed to implement a litigation hold resulting in a significant loss of data, including the contents of relevant hard drives and emails, and where its CEO deliberately deleted data, among other things.  Goodman also sought sanctions for the spoliation of Tracer/PSI’s third-party consultants’ files.  The court granted in part and denied in part Goodman’s motion and ordered an adverse inference against Tracer/PSI.

Read More

Chen v. Dougherty, 2009 WL 1938961 (W.D. Wash. July 7, 2009)

Following a verdict in their favor, plaintiffs moved for attorneys’ fees as provided by law.  Finding that plaintiffs were the “prevailing parties” under the relevant fee shifting statute, the court indicated its willingness to approve the attorneys’ requested hourly rates, with one exception.  Regarding the time spent by one attorney on discovery, the court ordered the requested rate to be reduced upon finding that her “inhibited ability to participate meaningfully in electronic discovery” was indicative of “novice skills in this area” and not “experienced counsel.”

Read More

Arista Records, LLC v. Usenet.com, Inc., 2009 WL 1873589 (S.D.N.Y. June 30, 2009)

In this copyright infringement case, plaintiffs alleged defendants committed egregious discovery violations deserving of terminating sanctions.  The violations included wiping relevant hard drives of its employees, failing to preserve and produce relevant emails, providing misleading responses to discovery, and violating two court orders, among other things.  Finding plaintiffs’ accusations credible in light of the evidence presented, the court denied their request for terminating sanctions but precluded defendants from asserting their affirmative defense of protection under the relevant statute’s safe harbor provision.  The court then granted summary judgment in favor of the plaintiffs.

Read More

Valeo Elec. Sys., Inc. v. Cleveland Die & Mfg. Co., 2009 WL 1803216 (E.D. Mich. June 17, 2009)

In response to defendant’s requests for production, plaintiff produced over 270,000 pages of emails and other electronically stored information (“ESI”) as they were kept in the usual course of business.  Plaintiff also produced two indices which identified the custodian for each bates range, the location the file was stored, document titles and “re:” lines of emails, and additional information regarding the creation and storage of the information produced.  Defendant argued that despite the information provided, it nonetheless had to open and review each file individually and alleged that plaintiff named the files “innocuously” in order to frustrate its review.  Discussing the relevant burden to a party producing its files as maintained in the usual course of business, the court found plaintiff had satisfied its burden under Fed. R. Civ. P. 34 and the parties’ agreement and denied defendant’s motion to compel plaintiff to organize the data into 28 specific categories.

Read More

Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009)

This case arose from plaintiff’s claim that defendant’s product caused plaintiff to develop a degenerative cartilage condition (chondrolysis), that defendant was aware of the risk of such a condition, and that defendant is therefore liable for plaintiff’s damages resulting from the condition.  In the course of discovery, plaintiff became concerned that defendant’s production of electronic discovery was incomplete and filed a motion to compel.  Acknowledging the validity of plaintiff’s concern but noting the unlikely possibility that any material new documents were located in defendant’s email archives or on disaster recovery tapes, the court concluded that plaintiff may, but was not required to, hire an outside vendor “for the purpose of confirming the completeness of [defendant’s] production, at is own expense” subject to specific conditions enumerated by the court.

Read More

Dahl v. Bain Capital Partners, LLC, 2009 WL 1748526 (D. Mass. June 22, 2009)

In a comprehensive yet brief opinion, the court addressed several issues including the cost of conversion and production of electronically stored information (“ESI”) and the production of metadata, among other things.

Specifically, noting that “courts will rarely shift costs to the requesting party and this is not one of those exceptional circumstances,” the court declined to shift the cost of defendants’ production of electronically stored information (“ESI”) but held that defendants would not have to pay to change the format of their responsive documents and that plaintiffs would bear the cost for such modification, if desired.  In support of its holding, the court reasoned:

Read More

Kay Beer Distrib., Inc. v. Energy Brands, Inc., 2009 WL 1649592 (E.D. Wis. June 10, 2009)

Following the court’s award of partial summary judgment to defendant, the sole cause of action remaining was plaintiff’s claim for breach of an oral agreement.  In support of that claim, plaintiff sought to compel the production of five DVDs containing the results of defendant’s search for potentially responsive electronically stored information ("ESI") referencing plaintiff, including emails.  Because of the broad nature of defendant’s search, the DVDs contained some information that was privileged or otherwise non-discoverable.  Defendant opposed the request as overly broad and unduly burdensome “given the narrow issues remaining in the case.”  Moreover, defendant had previously produced responsive ESI, including ESI contained on the DVDs.  The court denied plaintiff’s motion to compel.  Having denied the motion, the court nonetheless recognized defendant’s obligation to “conduct reasonable searches” to respond to plaintiff’s discovery requests and ordered defendant to conduct additional searching of the ESI at issue as instructed by the court.

Read More