December 1, 2012 – Page 10 – Electronic Discovery Law

In re Porsche Cars N. Am., Inc., No. 2:11-md-2233, 2012 WL 4361430 (S.D. Ohio Sept. 25, 2012)

Dec 01 2012

Key Insight: Court addressed a number of discovery issues related to Plaintiffs? motion to compel production and, among other things: 1) ordered production of the parameters of Defendants? searches where evidence indicated the possibility that Defendants made unilateral decisions to limit their search/production, where the parties disputed the meaning of certain search terms, and where the dearth of emails produced ?weighed in favor? of disclosing the search efforts; and 2) ordered defense counsel to certify that they had completed a reasonable inquiry and provided examples of the sort of information that should be included in such a certification

Nature of Case: Product Liability

Electronic Data Involved: ESI; search parameters; certification of reasonable inquiry

U.S. Bank Nat?l Assoc. v. PHL Variable Ins. Co., No. 12 Civ. 6811(CM)(JCF), 2012 WL 5395249 (S.D.N.Y. Nov. 5, 2012)

Dec 01 2012

Key Insight: Considering burdensome nature of subpoenas to non-parties, court found that cost shifting was appropriate and ordered plaintiff to bear the search, collection and production costs associated with the non-parties? compliance with the subpoenas; non-parties? were ordered to bear their own costs associated with privilege review, but, in order to give them ?the option of conducting a more economical analysis while minimizing the risk of waiver,? the court entered a non-waiver order pursuant to Rule 502(d) that would preclude the disclosure of privileged documents from resulting in waiver in any proceeding

Nature of Case: Alleged breach of insurance policies and violations of various related laws

Electronic Data Involved: ESI

Silver v. Countrywide Home Loans, Inc., No. 11-12282, 2012 WL 2052949 (11th Cir. 2012)

Dec 01 2012

Key Insight: Where defendant?s litigation specialist initially asserted that no responsive emails were uncovered but later testified that she had recently been told of a possible repository of archived emails and that search efforts there were ongoing and already had uncovered several relevant emails, Circuit court found no abuse of discretion in District Court?s refusal to impose an adverse inference which requires a showing of bad faith noting that the litigation specialist?s ?initial lack of knowledge? was ?carelessness at most? and further reasoning that the admission that relevant emails had been discovered was a further indication that the defendant was not acting in bad faith

Nature of Case: Fraud, breach of contract and similar claims related to plaintiff’s mortgage

Electronic Data Involved: Emails

Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950(LBS)(JCF), 2012 Wl 3964742 (S.D.N.Y. Sept. 10, 2012)

Dec 01 2012

Key Insight: Court addressed in depth a myriad of important discovery issues (e.g. ?phasing, sampling, and proportionality?); as to the question of reasonable accessibility, court clarified that a showing of undue burden alone is insufficient to establish inaccessibility and that the alleged burden must be ?associated with some technological feature which inhibits accessibility? and, noting that defendant?s databases were not inaccessible because of such a feature, found that rule 26(b)(2)(B) presented ?no barrier? to discovery of the at-issue databases; turning to the question of proportionality pursuant to Rule 26(b)(2)(C), court focused on section (iii) and, after discussing options to lessen Defendant?s burden, including sampling or a ?document dump,? found that most ESI was subject to production for reasons including the importance of the information to the case, the high financial stakes and Defendant?s ?ample resources,? the importance of the issues being litigated, and Defendant?s exaggeration of the burden and the inadequacy of proposed alternatives

Nature of Case: Putative class action asserting gender discrimination by employer

Electronic Data Involved: Database content

Adkins v. EQT Prod. Co., No. 1:10cv00041, 2012 WL 5465491 (W.D. Va. May 31, 2012)

Dec 01 2012

Key Insight: Addressing Defendant?s Motion for a Protective Order based on undue burden, court was ?persuaded? that no review was necessary to protect privilege because of the parties? Clawback Order and further found that a reasonable approach in light of Defendant?s assertions of burden (including that processing and review costs could exceed 4 million dollars, as represented by Defendant?s litigation support vendor) was to require Defendant to search and filter its ESI itself (rather than relying on the vendor), with all emails to be designated ?confidential? which would then shift the burden to Plaintiff?s counsel to determine if the ESI produced was over or under inclusive; Court specifically held that ?the court may consider the cost of review of ESI for privileged or responsive information in deciding whether discovery imposes an undue burden or cost on a responding party. Furthermore if the court were inclined to limit discovery based on the burden or cost of the review, I hold that the court could shift the costs of that review, either in whole or in part, to the requesting party.?

Nature of Case: Class action based on alleged entitlement to royalty payments

Electronic Data Involved: Emails, ESI

United States v. Briggs, No. 10-CR-184S, 2012 WL 5866574 (W.D.N.Y. Nov. 16, 2012)

Dec 01 2012

Key Insight: Court adopted lower court?s report and recommendation which denied defendant?s motion for sanctions related to the government?s discovery behaviors, including its production of ESI in searchable PDF but without the ability to manipulate the data, which defendant alleged failed to comply with the courts? prior order; court?s opinion, like prior opinions in this case, made clear the difficulties associated with a lack of controlling e-discovery case law/guidelines in criminal cases and put the Government ?on notice? that the Court would ?not hesitate to scrutinize the Government?s ESI discovery procedures to ensure responsiveness and fairness.?

Nature of Case: Criminal

Electronic Data Involved: Database, esi

Winchell v. Lopiccolo, —N.Y.S.2d—, 2012 WL 5933033 (N.Y. Sup. Ct. Oct. 19, 2012)

Dec 01 2012

Key Insight: Where Plaintiff alleged brain trauma and impaired cognitive functioning and Defendants therefore sought unfettered access to Plaintiff?s Facebook page ?for the purpose of discovering what it reveals about Plaintiff?s ?ability to portray cognitive function?? (Defendants asserted that even the layout of the page would demonstrate cognitive function), the court denied the motion upon finding the request was overbroad

Nature of Case: Claims related to injuries resulting from auto accident

Electronic Data Involved: Social Network contents (Facebook)

Dokho v. Jablonowski, No. 306082, 2012 WL 5853754 (Mich. Ct. App. Nov. 15, 2012)

Dec 01 2012

Key Insight: Appellate court found that trial court did not err in failing to grant Plaintiff?s request for an adverse presumption for insurance company?s failure to preserve a relevant file that was instead purged pursuant to the company?s document retention policy where Plaintiff provided no evidence of fraudulent conduct or intentional destruction; court further noted that Plaintiff failed to explain how the failure to provide an adverse inference (a lesser sanction than an adverse presumption) altered the court?s ?summary disposition analysis? reasoning that the court was already required to consider the evidence in the light most favorable to the non-moving party

Nature of Case: Claims arising from a slip and fall involving questions related to insurance coverage

Electronic Data Involved: Underwriting file

Vasudevan Software, Inc. v. Microstrategy, Inc., No. 11-cv-06637-RS-PSG, 2012 WL 5637611 (N.D. Cal. Nov. 15, 2012)

Dec 01 2012

Key Insight: Concluding that without more information it could not determine the reasonableness of Plaintiff?s request that Defendant use specific search terms for specified custodians, court ordered Defendant to run a searching using each of Plaintiff?s search terms against five custodians and for the parties to then meet and confer to attempt to reach resolution of their dispute and to return to the court if such resolution could not be reached; parties utilized modified version of Federal Circuit?s Model Order on E-Discovery in Patent Cases

Nature of Case: Patent infringement

Electronic Data Involved: ESI

AllianceBernstein L.P. v. Atha, —N.Y.S.2d—, 2012 WL 5519060 (N.Y. App. Div. Nov. 15, 2012)

Dec 01 2012

Key Insight: On defendant?s appeal of lower court?s order requiring production of his iphone to opposing counsel for counsel?s review, appellate court found the order too broad and ?tantamount to ordering the production of his computer? and remanded the case with the order that plaintiff produce the iphone to the court for in camera review to identify what if any information was responsive to plaintiff?s discovery request

Nature of Case: Breach of employment contract, misappropriation of confidential information

Electronic Data Involved: iPhone

Archive - December 1, 2012