S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3150387 (D.N.M. July 23, 2012)
Key Insight: Over objection of plaintiff, court entered non-waiver and claw-back order pursuant to FRE 502(d)
Electronic Data Involved: ESI
Margolis v. Dial Corp., No. 12-CV-0288-JLS (WVG), 2012 WL 2588704 (S.D. Cal. July 3, 2012)
Key Insight: Court denied Plaintiffs? request for a preservation order as to voicemail and instant messages where defendants had already sent litigation hold notices requiring preservation such that Plaintiffs? request was moot; Court further declined to enter preservation order as to backup tapes where defendants established that their preservation would impose a significant burden and that the contents were likely duplicative and where the court found that the backup tapes did not fall within the exception identified in Zubulake v UBS Warburg, 220 FRD 212 (S.D.N.Y. 2003).
Electronic Data Involved: Voicemail, instant messages, backup tapes
Vietnam Veterans of Am. v. Central Intelligence Agency, No. 09-cv-0037 CW (JSC), 2012 WL 2375490 (N.D. Cal. June 22, 2012)
Key Insight: In dispute over 24 40-year old magnetic tapes, 6 of which defendants had attempted to restore with only partial success (contents of 2 of the 6 tapes were recovered), the court found the information on the tapes to be not reasonably accessible in light of the significant but only partially successful recovery efforts but, recognizing the potential relevance of the contents, ordered that plaintiff would be allowed to attempt recovery (using outside vendors with sufficient security clearance) at their own expense and that if recovery was successful, the court would consider a cost-shifting motion
Electronic Data Involved: 40-year old magnetic tapes
FTC v. Johnson, No. 2:10-cv-02203-RLH-GWF, 2012 WL 2138108 (D. Nev. June 12, 2012)
Key Insight: Where plaintiff produced documents as kept in the usual course of business and labeled some documents to correspond to certain requests and where plaintiff included ?a searchable concordance and an index that identifies the document?s source, description, and date range? the court found that the production complied with Rule 34 and denied defendant?s motion to compel plaintiff to ?respond to the requests for production of documents with organized and related responses?
Electronic Data Involved: ESI
Fisher v. Fisher, No. WDQ-11-11038, 2012 WL 2050785 (D. Md. June 5, 2012)
Key Insight: After carefully laying out the law surrounding document requests/productions, court evaluated plaintiff?s motion to compel and, invoking principles of proportionality, granted in part and denied in part the motion
Electronic Data Involved: ESI
Adair v. EQT Prod. Co., No. 1:10cv00037, 2012 WL 1965880 (W.D. Va. May 31, 2012)
Key Insight: Considering the burden of production and the court?s ability to relieve it, the court held that consideration of the cost of review alone, related to otherwise accessible data, can be considered in deciding whether discovery imposes an undue burden or cost and may form the basis for a court?s decision to shift costs; court noted in this case, though, that a protective order and clawback agreement combined with a proposal to preclude production of any documents to or from in-house or outside counsel precluded defendant’s need to conduct a expensive privilege review and ordered production in accordance with the court?s order; affirmed with minor modifications 2012 WL 2526982
Electronic Data Involved: Esi
Ramadhan v. Onondaga Cnty., No. 5:10-CV-103, 2012 WL 1900198 (N.D.N.Y. May 24, 2012)
Key Insight: Addressing plaintiff?s motion for sanctions court laid out relevant law of spoliation and found that defendants had a duty to preserve relevant evidence but declined to impose sanctions where plaintiff failed to establish that allegedly spoliated emails were relevant; where plaintiff failed to establish that additional SERT video existed or was relevant to his claims; and where plaintiff failed to establish prejudice from unproduced booking video, particularly where he presented conflicting assertions regarding its relevance (where he at once moved to preclude presentation of evidence related to the underlying offense or arrest and sought sanctions for the booking video?s spoliation)
Electronic Data Involved: Emails, video
U.S. ex rel Yannacopoulos v. Gen. Dynamics, No. 03 C 3012, 2012 WL 1748120 (N.D. Ill. May 15, 2012)
Key Insight: Court awarded electronic copying costs incurred in response to plaintiffs? production request
Electronic Data Involved: Exemplification costs
Excel Gold Products, Inc. v. MacNeill Eng?g Co., Inc., No. 11 C 1928, 2012 WL 1570772 (May 3, 2012)
Key Insight: Despite finding that plaintiff had not produced sufficient information regarding its review procedures to establish that reasonable steps were taken to prevent inadvertent disclosure of privileged information, the court found that concerns of ?overriding fairness? precluded waiver where plaintiff had attempted to enter into a clawback agreement and where defense counsel?s rejection of such an agreement (because there was a protective order) could ?readily? have been interpreted to mean that inadvertently produced materials would be returned without dispute; plaintiff was ordered to conduct privilege review of documents produced, to the extent not already done
Electronic Data Involved: Inadvertently produced ESI
Ameripride Servs. Inc. v. Valley Indus. Serv., Inc., No. CIV S-00?113 LKK/FM, 2012 WL 1641749 (E.D. Cal. May 9, 2012)
Key Insight: Court granted recovery of costs related to ?internal scanning, importing and electronic review of documents? where plaintiff asserted that the documents were scanned and produced at defendant?s request, and in the electronic format demanded and where plaintiff asserted that ?importing, coding, and OCR ? were necessary to produce the documents? as demanded
Electronic Data Involved: ESI