December 1, 2013 – Page 5 – Electronic Discovery Law

Cotton v. Costco Wholesale Corp., No. 12-2731-JW, 2013 WL 3819974 (D. Kan. July 24, 2013)

Dec 01 2013

Key Insight: Addressing Plaintiff?s motion to compel, court declined to compel Defendant to search the email accounts of four Costco employees and to produce any messages containing any of sixty-four search terms where many of the terms were not ?racially charged? and some were duplicative and where, save two of the terms, Plaintiff had not alleged that the terms were ever used by any of Costco?s employees; court denied motion to compel production of text messages sent from certain of Costco?s employees? personal cell phones where the court reasoned that Costco had not issued the phones to the employees for a work purpose and did not have ?possession, custody or control? of the text messages

Nature of Case: Employment discrimination based on race

Electronic Data Involved: Emails, text messages on employees’ personal cell phones

Peerless Indus., Inc. v. Crimson AV LLC, No. 11 C 1768, 2013 WL 1195829 (N.D. Ill. Mar. 22, 2013)

Dec 01 2013

Key Insight: District court evaluated and overruled each of defendants’ objections to various discovery rulings of magistrate judge, applying a “clearly erroneous” standard of review; among other things, district court found that magistrate judge did not err in ruling that defendants’ production of ESI was insufficient in that it lacked all of the required metadata, e.g., author information, information about whether the file was stored, and revision histories for computer-aided designs

Nature of Case: Claimis for patent infringement and design patent infringement arising out of defendants’ manufacture and sale of certain TV mounts

Electronic Data Involved: ESI

A.J. Amer Agency, Inc. v. Astonish Results, LLC, No. 12-351S, 2013 WL 9663951 (D.R.I. Feb. 25, 2013)

Dec 01 2013

Key Insight: Observing that the meet and confer requirement is not an empty formality, court ordered parties to engage in a substantive good faith conferral and to follow five directives: 1) plaintiff?s requests for material in electronic format should be based on what it has already, what it needs for this case, as well as what is reasonably accessible, mindful of the cost-shifting provisions in Rule 26(b)(2)(B); 2) parties should consider what approach would be least costly and burdensome to defendant for production of comparable websites with similar graphics; 3) only sales training materials actually reviewed by the sales team that presented to plaintiff were discoverable; 4) plaintiff should explore what material is already accessible to it using a password that it already has before exploring with defendant what needs to be produced with respect to particular software; 5) once the scope of appropriate discovery is clear, defendant should supplement its responses to specify whether documents exist or not

Nature of Case: Insurance agencies alleged claims for breach of contract, fraud in the inducement, breach of fiduciary duty and breach of obligation of good faith and fair dealing arising from a marketing agreement between defendant to supply websites, digital marketing, training and consulting services

Electronic Data Involved: ESI; website templates, sales training materials

Process Am., Inc. v. Cynergy Holdings, LLC, No. 12 Civ. 772(BMC), 2013 WL 9447569 (E.D.N.Y. Sep. 23, 2013)

Dec 01 2013

Key Insight: Where plaintiff did not institute a written litigation hold despite its duty to preserve having arisen when it threatened to sue defendants, and, instead of producing the original of a particular thumb drive as ordered by the court, plaintiff copied contents of original thumb drive onto another (used) thumb drive and then deleted irrelevant files from thumb drive before producing drive to defendant, court found plaintiff was merely negligent and did not act in bad faith or with an intention of destroying or withholding relevant evidence; court declined to impose terminating sanctions or an adverse inference instruction given that defendant did not demonstrate severe prejudice, but ordered plaintiff to reimburse defendant for one-half of its costs, including attorneys? fees and expert costs, that it incurred in connection with litigating the spoliation issue

Nature of Case: Lawsuit arising out of the collapse of a commercial relationship between the parties relating to credit card processing services

Electronic Data Involved: Thumb drive, email, spreadsheets

Magnuson v. Newman, No. 10 Civ. 6211(JMF), 2013 WL 5380387 (S.D.N.Y. Sep. 25, 2013)

Dec 01 2013

Key Insight: Although court observed there was little question that defendants’ disclosures had not included documents that were once in their possession that would be relevant to the case, as they had failed to produce any emails between and among themselves and any drafts of contracts relating to the issues of the lawsuit, court declined to impose discovery sanctions because plaintiffs failed to carry their burden of establishing that defendants had an obligation to preserve the evidence at the time it was destroyed; court rejected plaintiffs’ contention that defendants’ admitted failure to back up their computers or put a litigation hold in place constituted per se gross negligence, and stated that a party?s failure to adopt good preservation practices was one factor in the determination of whether discovery sanctions should issue

Nature of Case: Fair Labor Standards Act claims brought by a group of television production professionals and companies

Electronic Data Involved: Emails and documents

In re Frazer/Exton Dev., L.P., 503 B.R. 620 (Bankr. E.D. Penn. 2013)

Dec 01 2013

Key Insight: Court denied debtors? motion to reopen their bankruptcy cases in order to obtain relief from settlement agreement with debtors? largest creditor and plan of reorganization because — notwithstanding that creditor failed to search all potential sources of ESI and failed to produce responsive documents in what court described as ?incompetent and reckless discovery foul-up? that should not have occurred — debtors could not, as a matter of law, obtain the relief they sought under Rule 60 and it would therefore be futile for the court to reopen the record for the purpose of allowing the debtors to file a time-barred Rule 60 motion

Nature of Case: Debtors sought to reopen their bankruptcy cases in order to obtain relief from settlement agreement and plan of reorganization

Electronic Data Involved: ESI

Great-West Life & Annuity Ins. Co. v. Am. Economy Ins. Co., No. 2:11-cv-02082-APG-CWH, 2013 WL 5332410 (D. Nev. Sep. 23, 2013)

Dec 01 2013

Key Insight: Magistrate judge found that defendant had waived attorney-client privilege as to privileged documents provided to testifying expert for use in preparing his expert report, given that Rule 26(a)(2)(B) requires disclosure of ?the facts or data considered by the witness in forming [his/her opinion(s)],? and expert testified, under oath, that he reviewed the documents he was provided; magistrate judge further ruled that other privileged documents inadvertently produced by defendant were not subject to waiver as parties’ agreed protective order contained strict time line and process for filing motions to challenge claims of privilege after an inadvertent disclosure, and plaintiff did not follow the process

Nature of Case: Insurance coverage dispute

Electronic Data Involved: Privileged documents

Home Gambling Network, Inc. v. Piche, No. 2:05-cv-00610-DAE-VCF, 2013 WL 5491952 (D. Nev. Sep. 30, 2013)

Dec 01 2013

Key Insight: District court adopted magistrate judge?s report and recommendation that plaintiffs? motion for terminating sanctions, based in part on defendants? botched production of database, be denied in light of additional evidence (consisting of supplemental report by defense expert stating that database was not corrupt but merely ?offline,? expert testimony and in-court demonstration of operation of database, and information regarding a prior database crash) presented by the parties after the district court vacated different magistrate judge’s report and recommendation that plaintiffs? motion for terminating sanctions be granted, that defendants? answer be stricken and that a default judgment be entered against defendants; in light of additional evidence, magistrate judge found that (1) defendants did produce a mirror image of the database as ordered by the court and there was no basis for sanctions, and (2) something done to plaintiffs’ copy of the database after it was provided to plaintiffs caused the error message

Nature of Case: Patent infringement and various state-law claims

Electronic Data Involved: ESI, database

Ford Motor Co. v. Mich. Consol. Gas Co., No. 08-CV-13503, 2013 WL 5435184 (E.D. Mich. Sep. 27, 2013)

Dec 01 2013

Key Insight: Magistrate judge evaluated plaintiffs? work product, attorney-client privilege, joint defense and common interest privilege claims, set out various findings and guidelines, and ordered plaintiffs to update their respective privilege logs and produce certain documents; magistrate judge further ruled that, because Ford had earlier produced voluminous documents as they were kept in the usual course of business, it had no further duty under Rule 34 or otherwise to organize and label the documents to correspond with individual requests for production

Nature of Case: Current and former property owners sued former operator of manufactured gas plant

Electronic Data Involved: Environmental investigation, remedy assessment and allocation related documents

Kickapoo Tribe of Indians of Kickapoo Reservation in Kan. v. Nemaha Brown Watershed Joint Dist. No. 7, No. 06-CV-2248-CM-DJW (D. Kan. Sep. 23, 2013)

Dec 01 2013

Key Insight: Court sustained District’s objection that it did not have duty to produce documents from persons no longer associated with the District who were not parties to the litigation, as plaintiff failed to establish that District had the necessary control over requested documents or that District had legal right to obtain such documents on demand from former District board members, staff or employees; court further denied motion to compel forensic mirror imaging of computers and other electronic devices personally owned by current and former District board members, employees and staff, as District already produced forensic mirror images of two District computers, District lacked possession or control of personally-owned computers, there was no showing that any personally-owned computers of board members, employees and staff were used by those persons for District business, and court had significant concerns about intrusiveness of request and privacy rights of individuals to be affected

Nature of Case: Dispute over water rights

Electronic Data Involved: ESI

Archive - December 1, 2013