December 2012 – Page 2 – Electronic Discovery Law

Abbot Point of Care, Inc. v. Epocal, Inc., No. CV-08-S-543-NE, 2012 WL 7810970 (N.D. Ala. Nov. 5, 2012)

Dec 01 2012

Key Insight: Court declined to allow recovery of costs related to maintenance of an electronic discovery database but allowed recovery of costs related to ?processing of electronic documents, including conversion of native files to ?TIFF? format for production to Abbott; conversion of document[s] from ?TIFF? format to a searchable format; importing and loading of documents to an electronic database; production of electronic documents; and the associated project and technical support?

Electronic Data Involved: ESI taxable costs

ADT Secs. Servs. Inc. v. Pinnacle Sec. LLC, No. 10 C 7467, 2012 WL 7170633 (N.D. Ill. May 11, 2012)

Dec 01 2012

Key Insight: Where defendant argued that its failure to issue a specific litigation hold was mitigated by prior imposition of a no-delete policy which would have prevented any loss of evidence, the court determined it needed additional information on the scope of the policy and ordered defendant to provide information to determine if the scope of the policy was sufficiently broad and how it was communicated to employees; where defendant acknowledged that it did not search certain individual computers because all files created were to be saved in the ?My Documents? folder which was saved to a network server, the court noted the lack of assurance that employees followed the default settings and that they did not save ESI in folders outside of ?My Documents? and thus ordered a search of particular employees? computers using Plaintiff?s key word search terms

Electronic Data Involved: ESI

Hanwha Azdel, Inc. v. C&D Zodiac, Inc., No. 6:12-cv-00023, 2012 WL 6726412 (W.D. Va. Dec. 27, 2012)

Dec 01 2012

Key Insight: Where Defendant produced forty gigabytes of material on a single memory stick organized into folders by search term, with no other organization by custodian or otherwise, court noted that ?[o]rganizing a production to reflect how the information is kept ?in the usual course of business? sometimes requires the producing party to include different identifying information according to the type of document or file produced,? and that ?[e]mails specifically are produced in the usual course of business when responsive emails are arranged ?by custodian, in chronological order and with attachments, if any?? and found that the production was not in an appropriate format in this case; court ordered Defendant to bear the costs to convert the ESI into a readily usable format (estimated to be $8,463.00)

Electronic Data Involved: ESI

Navajo Nation v. United States, —Fed. Cl.—, 2012 WL 5398792 (Fed. Cl. Nov. 6, 2012)

Dec 01 2012

Key Insight: To settle disagreement between the parties, court entered discovery order addressing several issues including format of production, categories of ESI presumptively exempt from discovery absent a showing of good cause, and inadvertent production, among others

Electronic Data Involved: ESI

Rudolph v. Beacon Indep. Living, LLC, No. 3:11-CV-617-FDW-DSC, 2012 WL 2804114 (W.D.N.C. July 10, 2012)

Dec 01 2012

Key Insight: Where it was undisputed that Defendant instructed a non-party witness to delete relevant emails on his computer and that the non-party complied, court granted in part plaintiff?s motion for sanctions and ordered that defendant and the non-party preserve all ESI going forward, that defendant and the non-party submit their computers for forensic examination to recover deleted emails and to gather native format versions of information previously produced ?as fixed images,? that defendant pay the cost of the forensic examinations, and that defendant bear plaintiffs? attorneys costs and fees for preparing the underlying motion

Electronic Data Involved: Emails, ESI

Crop Data Mgmt. Sys., Inc. v. Software Solutions Integrated LLC, No. 2:11-cv-01437 LKK KJN, 2012 WL 2571201 (E.D. Cal. July 2, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motion to compel ?complete forensic imaging and an open ended computer inspection of all of defendants ?electronically stored information?? where the court found the request was overly broad in scope and unduly burdensome and costly in light of the time and cost of the necessary privilege reviews by defendants and other expenses associated with the business interruption of such inspections, where ?plaintiff ha[d] not reasonably attempted to obtain the information it [sought] short of the proposed, burdensome computer investigation,? and where it was ?highly improbable? that the parties could complete the inspection by the close of discovery

Electronic Data Involved: Forensic inspection of computers and servers

Chen v. New Trend Apparel, No. 11 Civ. 324 (GBD) (MHD), 2012 WL 4784855 (S.D.N.Y. Oct. 2, 2012)

Dec 01 2012

Key Insight: Court denied motion to compel inspection of defendants? computers reasoning that such inspections are granted only under limited circumstances ?when there is reason to believe that a litigant has tampered with the computer or hidden relevant materials despite demand for them in the course of the lawsuit or when the possession or use of the computer is an element of the parties’ claims or defenses? and further reasoning that movants made no showing to justify their request, particularly where certain information they sought had already been provided

Electronic Data Involved: Hard drives

In re Specs, No. C 10-04250 YGR (DMR), 2012 WL 4120246 (N.D. Cal. Sept. 18, 2012)

Dec 01 2012

Key Insight: Court ordered sanctions for Plaintiffs? violation of a court order compelling production where Plaintiffs certified their production was complete and thereafter made at least four additional significant productions such that the court concluded that Plaintiffs? certification of completeness was either ?knowingly false, or ? made without confirming the adequacy of their collection and production efforts? and ordered payment of reasonable expenses including attorneys fees and that Plaintiffs file certification that their discovery is complete and that any documents produced thereafter could not be used by Plaintiff at trial

Electronic Data Involved: ESI

Eolas Techs., Inc. v. Abode Sys., Inc., — F. Supp. 2d —, 2012 WL 4092568 (E.D. Tex. July 19, 2012)

Dec 01 2012

Key Insight: Addressing taxable costs, court approved recovery of costs for scanning but, citing the Third Circuit decision in Race Tires Am. Inc. v. Hoosier Racing Corp., held that ?document collection, processing, and hosting? were not ?recoverable costs? and also held that, where the parties agreed that TIFF images were an acceptable form of production, but not required, the conversion was not ?necessarily obtained for use in the case? and thus related costs were not taxable under ? 1920; court indicated in footnote that had TIFF been the only agreed upon format of production, the outcome may have been different

Electronic Data Involved: ESI

Domanus v. Lewicki, No. 08 C 4922, 2012 WL 3307364 (N.D. Ill. Aug. 13, 2012)

Dec 01 2012

Key Insight: Where defendant?s breached their duty to preserve by discarding a hard drive belonging to defendant in the midst of discovery and where their ?story? of what happened to the drive (including claims that it was taken to the Apple Store for repairs) did not ?add up?, the district court found the magistrate judge?s failure to find that defendant?s acted in bad faith ?clearly erroneous? and that a finding of bad faith would allow prejudice to be presumed such that allowing but not requiring the jury draw a negative inference was ?insufficient;? as a sanction, the district court ordered that defendants obtain all relevant emails from their email service providers and precluded defendants from using as evidence any of the documents culled from the drive ?before they destroyed it?

Electronic Data Involved: Hard drive

Archive - December 2012