December 1, 2011 – Electronic Discovery Law

M-I LLC v. Stelly, No. H-09-1552, 2015 WL 12896025 (S.D. Tex. Nov. 21, 2011)

Dec 01 2011

Key Insight: Court ordered forensic inspection of Defendant?s computers where Plaintiff presented evidence that an individual defendant had transferred confidential information to USB devices and Plaintiff suspected it had then been transferred to Defendant?s computer systems and where Plaintiff produced evidence of Defendant?s practice of deleting documents; court ordered inspection undertaken by an independent expert

Electronic Data Involved: Contents of computers

Tibble v. Edison Int?l, No. CV 07-5359, 2011 WL 3759927 (C.D. Cal. Aug. 22, 2011)

Dec 01 2011

Key Insight: Court addressed defendants? request for ?costs for utilizing the expertise of computer technicians in unearthing the vast amount of computerized data sought by Plaintiffs in discovery? and reasoned that ?[c]ourts have found that costs such as those sought by Defendants are recoverable under ? 1920(4)? and that defendants costs were not incurred for mere convenience but rather were ?necessarily incurred in responding to Plaintiffs? discovery requests? and concluded the costs were reasonable; the court found the request to be moot, however, where defendants sought costs ?only to the extent Plaintiffs receive attorneys fees? and no such fees were awarded

Electronic Data Involved: Taxable costs

Pac. Coast Steel v. Leany, No. 2:09-cv-2190-KJD-PAL, 2011 WL 4704217 (D. Nev. Oct. 4, 2011)

Dec 01 2011

Key Insight: [This amended order corrects an omission to the original order, Docket # 335] Where plaintiffs ?simply overlooked? and thus inadvertently produced 3 privileged documents along with 2.3 million other pages, despite conducting ?multiple? privilege reviews and where plaintiff immediately objected to the use of such documents upon their presentation at deposition and thereafter sought their return before the court, the court found that privilege was not waived

Electronic Data Involved: ESI

Cannata v. Wyndham Worldwide Corp., No. 2:1-cv-00068-PMP-VCF, 2011 WL 5598306 (D. Nev. Nov. 17, 2011)

Dec 01 2011

Key Insight: Reasoning that the litigation holds were not discoverable but that the details surrounding them were, court ordered defendant to produce ?information surrounding the litigation hold? including when defendants learned of claims, when and to whom litigation hold instructions were sent, what categories of information were identified for preservation , etc.

Electronic Data Involved: Litigation holds

Appleton Papers, Inc. v. George A. Whiting Paper Co., No. 08-C-16, 2011 WL 7005721 (E.D. Wis. Dec. 19. 2011)

Dec 01 2011

Key Insight: Court declined to impose spoliation sanctions for destruction of original microfiche where the destruction occurred in a somewhat unique situation ( the crate of microfiche was destroyed after becoming an ?orphan sitting in a warehouse? after being shipped back to England) and where ?nothing of value was lost? because the originals had been digitally copied

Electronic Data Involved: Original microfiche

Alers v. City of Philadelphia, No. 08-4745, 2011 WL 6000602 (E.D. Pa. Nov. 29, 2011)

Dec 01 2011

Key Insight: Where defendants inadvertently produced a privileged memorandum as part of a multi-page document amid more than 2000 pages of document production and where they requested return of the document four days after learning of its disclosure at a deposition (where there was no objection made), the court found that privilege was not waived (despite defendants? choice to attach the memorandum to a publically available motion)

Electronic Data Involved: Inadvertently produced memorandum

E.E.O.C. v. DHL Express, No. 10 C 6139, 2011 WL 6825516 (N.D. Ill. Dec. 28, 2011)

Dec 01 2011

Key Insight: Where DHL produced ?28,000 spreadsheets worth of information? with an index containing metadata for each spreadsheet and any emails to which the spreadsheets were attached but where plaintiff nonetheless claimed that the burden of sifting through the spreadsheets was unduly onerous and sought to compel production of information to identify each spreadsheet and that defendant organize them according to request, the court noted its authority under Rule 34 to impose requirements ?different from those in the rule? and ordered defendant to identify which request each spreadsheet or group of spreadsheets was responsive to and to provide an explanation for spreadsheets not attached to an email

Electronic Data Involved: Spreadsheets

Paradigm Alliance, Inc. v. Celeritas Techs., LLC, No. 07-1121-EFM, 2011 WL 3849724 (D. Kan. Aug. 30. 2011)

Dec 01 2011

Key Insight: Where plaintiff was required to scan electronically produced documents ?using OCR to convert them into a searchable format to make them useable? and argued that such conversion was ?reasonably necessary? and the modern equivalent of ?fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case,? the court agreed and allowed the costs

Electronic Data Involved: ESI

Cute v. ICC Capital Mgmt., Inc., No. 6:09-cv-1761-Orl-22DAB, 2011 WL 3222133 (M.D. Fla. July 22, 2011)

Dec 01 2011

Key Insight: Court disallowed taxation of costs ?paid to third party vendors for the processing and production of 11,447 pages of electronic documents? where ?a charge for a third party vendor of this size should have been the subject of specific good faith discussions between counsel before being incurred if ICC expected to tax such as part of costs at the conclusion to the litigation.?

Electronic Data Involved: ESI

First Tenn. Bank Nat?l Assoc. v. Republic Mortg. Ins. Co. & Republic Mortg. Ins. Co. of N.C., No. 2:10-cv-02513-JPM-cgc, 2011 WL 6130808 (W.D. Tenn. Dec. 8, 2011)

Dec 01 2011

Key Insight: Addressing the requisite showing to establish undue burden in responding to discovery, the court identified ?several overarching principles to be considered:? 1) that a party must provide ?competent proof demonstrating the burden faced;? 2) that ?the fact that a party maintains its document in a manner than makes access difficult is not an excuse for refusing to produce relevant documents;? and 3) that the court must consider whether the ?claimed hardship is unreasonable in light of the benefits to be secured,? and upon review of the evidence presented, ordered plaintiff to respond to defendants? requests for production

Electronic Data Involved: ESI

Archive - December 1, 2011