Key Insight: Court denied motion to compel production of additional documents in CERCLA action where government had already produced a ?staggering? amount of discovery and indicated that additional discovery obligations would be burdensome and where the information sought would only be of ?limited relevance? to the issues of the case
Nature of Case: CERCLA
Electronic Data Involved: ESI
Key Insight: Addressing production of business records pursuant to Rule 33(d) and, more specifically, who should bear the cost of imaging and segregating the relevant information from the many other pages of information with which the at-issue data was maintained, the court addressed the question of who would bear a heavier burden in locating and extracting the information (or whether the burden was even), determined it would be the plaintiffs (noting, for example defendant?s reliance on particular software not available to plaintiffs) and rejected defendant?s offer to do the work if plaintiffs bore the costs; court found that defendant must bear the cost of imaging and producing the data requested; court also addressed case scheduling in light of the time estimates for accomplishing the production and considered defendant?s resources, including the number of scanners and personnel that were required to complete the task, before ordering a deadline accordingly
Nature of Case: Alleged scheme to generate unlawful fees related to loan applications
Electronic Data Involved: Rule 33(d) business records
Key Insight: For intentional spoliation resulting in irreparable prejudice, including a ?discernible pattern? of efforts to deprive Plaintiffs of relevant financial information contained on the computer of Plaintiff?s outside accountant and the failure to preserve other data, the court ordered that plaintiff?s claims were dismissed with prejudice
Nature of Case: Fraud, breach of contract
Electronic Data Involved: ESI
Key Insight: Court addressed question of taxable costs and relied heavily on Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009) and Race Tires Am. Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) and allowed recover as to rendering ESI word searchable, the creation of TIFF images, the creation of hard copies, photocopying, the creation of graphics for use at the hearing, and fees for obtaining transcripts but denied recovery as to the creation of a litigation database, processing of ESI, extraction of metadata, deduplication, electronic data hosting, and ?preparing ESI for production?
Nature of Case: Violations of Consumer Fraud and Deceptive Business Practices Act
Electronic Data Involved: ESI
Key Insight: Reviewing District Court?s denial of spoliation sanctions for abuse of discretion, Circuit Court found that the at-issue information should have been preserved and was intentionally destroyed but upheld the denial of sanctions based on plaintiffs? inability to establish relevance, a necessary element of the test for determining whether sanctions are appropriate
Nature of Case: Employment discrimination
Electronic Data Involved: ESI (Survey results)
Key Insight: Magistrate Judge recommended the adoption of the approach of the Third Circuit in Race Tires Am. Inc. v. Hoosier Racing Tire Corp., which limits the recoverable costs related to electronic discovery pursuant to 28 U.S.C. ? 1920 and thus granted in part plaintiffs? motion to disallow costs
Nature of Case: Business tort claims
Electronic Data Involved: Taxable costs related to production of ESI
Key Insight: Where the petitioner (for an order compelling production) had access to plaintiff?s Facebook account but argued that merely taking screen shots would not include deleted information and where plaintiff alleged numerous difficulties with using the ?download your information? feature such that he could not produce the contents himself, the court ordered plaintiff to produce the information within 7 days but also noted that because the petitioner had access to the password, it could access the account and utilize the ?download your information? button, which would send that information only to Plaintiff, and that Plaintiff would then be obligated to forward that information to Petitioner?s counsel
Nature of Case: Personal Injury
Electronic Data Involved: Facebook
Key Insight: For failure to produce unredacted database entries despite three court orders to do so, court found that defendant had acted in bad faith to withhold relevant documents and, as a sanction, ordered that facts be established in plaintiffs? favor, namely that the rental listing database included directives from landlords that clients receiving government housing assistance should not be assisted in applying for housing with those landlords; court also ordered defendant to pay Plaintiffs $231,000 in attorneys fees
Nature of Case: Housing discrimination
Electronic Data Involved: Database
Key Insight: Despite inadvertently producing (or discussing without objection) the at-issue document as many as times thirteen times, the court found that privilege was not waived where the parties stipulated that inadvertent production would not result in waiver and where the analysis under Fed R Evid 502 resulted in a finding that reasonable steps were taken to prevent disclosure, including key word searches for privileged documents, and that prompt steps were taken to secure the document?s return upon defendant learning of the inadvertent production; notably, it appeared that the document was not identified either because it was labeled ?client-attorney? rather than ?attorney-client?
Nature of Case: Alleged gross mismanagement of construction project result in significant costs to plaintiff
Electronic Data Involved: ESI
Key Insight: Addressing the state of the ?modern privilege log? Judge Grimm noted the strong trend toward mechanically produced privilege logs with boilerplate information which do not sufficiently describe the documents and the nature of the privilege and ordered defendant to produce factual work product and to properly describe the redacted portions and indicated that he would hold defendant to their 26(g) obligations ?ruthlessly?
Nature of Case: Environmental damages
Electronic Data Involved: Privileged/work product ESI
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