2011 – Page 21 – Electronic Discovery Law

Silverman v. United States, 2011 WL 65487 (M.D.N.C. Jan. 7, 2011)

Dec 01 2011

Key Insight: Where pursuant to defendant?s document retention policy the form at issue was subject to retention until February 4, 2007, and where defendant provided notice of his claims on February 1, 2007, including his assertions of defendant?s negligence, court found destruction of the relevant form warranted an adverse inference establishing that defendant negligently loaded the trailer involved in the underlying accident

Nature of Case: Negligence

Electronic Data Involved: ESI

Makeen v. Comcast of Colo. X, LLC, 2011 WL 93728 (D. Colo. Jan. 11, 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for defendant?s loss of server logs where the court determined that the logs were of minimal relevance to plaintiff?s claims and where the logs ?rolled over? in the usual course of business prior to the trigger of defendant?s duty to preserve

Nature of Case: Violation of FMLA and ADA, employment discrimination, intentional infliction of emotional distress

Electronic Data Involved: Server logs

Southern District of New York Implements Pilot Program for Complex Cases, Requires Joint Electronic Discovery Submission for Cases Involving ESI

Nov 23 2011

The Southern District of New York has implemented a new Pilot Program for Complex Cases which became effective on November 1, 2011. The program was implemented in “response to the federal bar’s concerns about the high costs of litigating complex civil cases,” and is “designed to improve judicial case management of these disputes and reduce costs and delay.” More specifically, “the rules are intended to shorten the timeline for certain actions, reduce motion practice, and flag issues requiring judicial intervention at an earlier stage in the litigation process.” Fourteen types of civil lawsuits are designated as “complex cases,” including “stockholder’s suits, patent and trademark claims, product liability disputes, multi-district litigation, and class actions.” District Court judges may also “remove a case from the pilot, or they can designate a case as complex” if it does not fall within the other, enumerated categories.

Prosecution Not Required to Re-Produce Voluminous ESI in Categorized Batches

Nov 23 2011

United States v. Rubin/Chambers, Dunhill Ins. Servs., No. 09 Cr. 1058, 2011 WL 5448066 (S.D.N.Y. Nov. 4, 2011)

In this case, defendants were charged with crimes “arising out of an alleged conspiracy . . . to illegally rig bids, fix prices, and manipulate the market for investment instruments known as municipal derivatives.” Following the prosecution’s production of ESI, defendants sought to compel re-production in categorized batches relating to transactions with certain characteristics. Defendants’ motion was denied.

Client & Counsel Sanctioned for Spoliation where Plaintiff was Instructed to “Clean Up” His Facebook Page

Nov 18 2011

Lester v. Allied Concrete Co., Nos. CL.08-150, CL09-223 (Va. Cir. Ct. Sept. 1, 2011); Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011)

In this case, significant monetary sanctions were ordered against the plaintiff and his counsel for egregious discovery violations, including intentional deletion of pictures on Plaintiff’s Facebook page per the instructions of Counsel and subsequent efforts to cover those instructions up, among others.

California Federal Court Grants Motion to Adopt Version of Model Order on E-Discovery in Patent Cases Promulgated by Federal Circuit

Nov 10 2011

DCG Sys., Inc. v. Checkpoint Techs., LLC, No. C-11-03792 PSG, 2011 WL 5244356 (N.D. Cal. Nov. 2, 2011)

In this patent case, Defendant sought an order adopting a modified version of the Model Order on E-Discovery in Patent Cases (“Model Order”) recently promulgated by a subcommittee of the Advisory Council of the Federal Circuit (available here). Significantly, the Model Order limits the discovery of email by placing limitations on the allowable number of custodians and search terms. According to the court, such limitations “are designed to address the imbalance of benefit and burden resulting from email production in most cases.” The order proposed by the Defendant similarly limited the discovery of email.

The Rules Have Moved!

Nov 09 2011

If you’re looking for a list of State or Local District Court Rules addressing electronic discovery, please click the link “Local District Court Rules” or “State Court Rules” on the left-hand side of this page.

Court Denies Motion to Re-Tax Costs Related to Conversion of ESI, Including Costs for “Project Management”

Nov 02 2011

Jardin v. DATAllegro, Inc., No. 08-CV-1462-IEG (WVG), 2011 WL 4835742 (S.D. Cal. Oct. 12, 2011)

Here, the court denied Plaintiff’s “motion to stay, deny, or re-tax the Clerk’s taxation of costs awarded to Defendants.” Specifically, the court declined to deny or re-tax costs awarded for converting data to the .TIFF format or to deny or re-tax costs related to a project manager who “oversaw the process of converting data to the .TIFF format to prevent inconsistent or duplicative processing.” Regarding the latter, the court reasoned that “[b]ecause the project manager’s duties were limited to the physical production of data, the related costs are recoverable.”

Court Acknowledges Calls for Caution when Applying “Proportionality Test” to Preservation, Denies Motion for Protective Order

Oct 21 2011

Pippins v. KPMG LLP, No. 11 Civ. 0377 (CM)(JLC), 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011)

KPMG sought a protective order to limit the scope of its preservation obligation or to shift a portion of its preservation costs to plaintiffs. At the time, the parties awaited ruling on plaintiffs’ Motion to Certify and KPMG was preserving more than 2,500 hard drives at a cost of more than $1,500,000. Following the court’s analysis, the motion was denied.

Pennsylvania Supreme Court To Tweet Rulings

Oct 20 2011

The Administrative Office of Pennsylvania Courts issued a press release Tuesday announcing that the Supreme Court of Pennsylvania has established a Twitter feed to "increase online access to its rulings:"

The specially designated site will provide instant notification of the online posting of most Supreme Court information, such as orders, new rules, opinions and concurring and dissenting statements written by the justices. Anyone can sign-up to receive alerts from the Court’s Twitter page, which can be accessed at http://twitter.com/SupremeCtofPA. “Follow Us On Twitter” links also will appear on the state court system’s Web site to take interested parties directly to the page.

To read the full press release, click here.

Archive - 2011