December 2013 – Page 2 – Electronic Discovery Law

Johnson v. PPI Tech. Servs., L.P., No. 11-2773, 2013 WL 4508128 (E.D. La. Aug. 22, 2013)

Dec 01 2013

Key Insight: Court sustained objections to requests for social media content reasoning that although such content was potentially discoverable, Defendant had not made a sufficient showing that the material sought was ?reasonably calculated to lead to the discovery of admissible evidence,? and went on to reason that: ?Simply placing their mental and physical conditions at issue is not sufficient to allow PPI to rummage through Johnson’s or Croke’s social media sites. Almost every plaintiff places his or her mental or physical condition at issue, and this Court is reticent to create a bright-line rule that such conditions allow defendants unfettered access to a plaintiff’s social networking sites that he or she has limited from public view.?

Electronic Data Involved: Social Network content (e.g. Facebook, MySpace, etc.)

Lee v Stonebridge, No. 11-cv-43 RS (JSC), 2013 WL 3889209 (N.D. Cal. July 30, 2013)

Dec 01 2013

Key Insight: Court denied Defendant?s motion to conduct a forensic inspection of Plaintiff?s iphone where there was no dispute that the at-issue phone was not the phone that received the at-issue text message and where Plaintiff?s expert indicated that the relevant iphone had been backed up on plaintiff?s personal computer; court denied motion to conduct a forensic inspection of Plaintiff?s personal computer where Defendant failed to demonstrate that the information sought was not reasonably accessible through other sources (e.g., the co-defendant that allegedly sent the at-issue text message), where plaintiff had offered to search for whatever information defendant sought, where plaintiff had already provided considerable data, and where Defendant?s request was essentially a fishing expedition; court reasoned that ?absent a showing of misconduct? raising questions regarding the completeness of Plaintiff?s expert?s search, no inspection by Defendant was warranted and ordered the parties to cooperate to create a protocol for plaintiff?s expert to use

Electronic Data Involved: iphone, contents of personal computer, text-message

Cefalu v. Holder, No. 12-0303 THE (JSC), 2013 WL 4102160 (N.D. Cal. Aug. 12, 2013)

Dec 01 2013

Key Insight: Where Defendant sought to compel production of plaintiff’s personal computers’ hard drives for inspection or to compel Plaintiff?s counsel to perform an independent search of the computer and other electronic devices to ensure that all responsive documents had been produced and where Defendant cited a prior search by Plaintiff?s counsel that yielded additional responsive documents and Plaintiff?s counsel?s admission that she had never examined the contents of Plaintiff?s personal computers, the court acknowledged that the rules do not create a right of direct access to a party?s electronic information systems, but, also acknowledged that the history of Plaintiff?s document productions suggested that he may not ?fully understand his search obligations,? and thus the court ordered Plaintiff?s counsel to ensure that all responsive documents on the computers and other devices were located and produced but declined to allow Defendant to conduct its own examination absent a demonstration of good cause

Electronic Data Involved: Contents of personal computer

Trip Mate, Inc. v. Stonebridge Cas. Ins. Co., Nos. 10-0793-CV-W-ODS, 11-1097-CV-W-ODS, 2013 WL 3336631 (W.D. Mo. July 2, 2013)

Dec 01 2013

Key Insight: Acknowledging that the Eight Circuit has not yet addressed how section 1920(4) relates to electronically stored information, the court noted the persuasive reasoning in Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) which held that ?scanning documents and converting computer data into readable format constitute copying within the meaning of section 1920(4)? and found the amounts sought by Plaintiff to be reasonable

Electronic Data Involved: Taxable electronic discovery costs

Kwasniewski v. Sanofi-Aventis U.S. LLC, No. 2:12-cv-00515-GMN-NJK, 2013 WL 3297182 (D. Nev. June 28, 2013)

Dec 01 2013

Key Insight: Although Defendant complied with Rule 34 by producing documents as maintained in the usual course of business with a table of contents, metadata, and text search capability, the court found that the responses were ?deficient in that they create unnecessary obstacles for the Plaintiffs,? and that Defendant must ?indicate whether the documents it produced are actually responsive,? reasoning that Plaintiff ?should not have to guess which requests were responded to and which were not?

Electronic Data Involved: ESI

Phillips v. Wellpoint, Inc., No. 3:10-cv-00357-JPG-SCW, 2013 WL 2147560 (S.D. Ill. May 16, 2013)

Dec 01 2013

Key Insight: Finding the reasoning of the Third Circuit in Race Tires America Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) persuasive, the court in this case found only a portion of Defendant?s claimed costs were recoverable: court allowed recovery for the imaging of hard copy files and for uploading hard copy materials into a database for electronic production and also acknowledged that the conversion of documents into TIFF images was recoverable, but declined to allow recovery for ?logical document determination? (?organizing documents to avoid single page production?), ?project management and technical services,? most ?ingestion services,? and ?professional services? such as establishing protocols for processing and quality control measures to ensure those protocols were met

Electronic Data Involved: Taxable costs related to ediscovery

BNP Paribas Mortg. Corp. v. Bank of Amer., N.A., Nos. 09 Civ. 9783(RWS), 09 Civ. 9784(RWS), 2013 WL 2322678 (S.D.N.Y. May 21, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought the return of inadvertently produced privileged documents pursuant to the parties? Fed. R. Evid. 502(d) order (which required the production to be inadvertent to fall within the protective order), the court considered the Lois Sportswear factors and determined that Defendant used reasonable precautions to prevent disclosure (including training contract attorneys to identify privilege and employing a quality control team) and made prompt efforts to rectify their error and ultimately concluded privilege was not waived (court noted that waiver was also not established pursuant to Fed. R. Evid. 502(b))

Electronic Data Involved: Privileged ESI

Harry Weiss, Inc. v. Moskowitz, — N.Y.S.2d —, 2013 WL 2341806 (N.Y. App. Ct. May 30, 2013)

Dec 01 2013

Key Insight: Sanction precluding plaintiff from presenting evidence or testimony in opposition to defendant?s defenses and counterclaims affirmed where plaintiff failed for two years to reveal that relevant ESI had been lost after it was allegedly printed; claimed that the relevant computer was ?broken? and had been discarded when defendant sought a forensic examination; and failed to issue a litigation hold; appellate court rejected contention that the disposal did not prejudice defendant because the files had been printed where that claim was contradicted at deposition and where hard copy did not contain metadata

Electronic Data Involved: ESI, hard drive/computer

Prowess, Inc. v. Raysearch Labs. AB, No. WDQ-11-1357, 2013 WL 1976077 (D. Md. May 9, 2013)

Dec 01 2013

Key Insight: Pursuant to FRE 502(b), the court found privilege had not been waived where production of the at-issue document was inadvertent (instead of producing certain documents within a sub-folder, the whole folder was mistakenly produced), where reasonable steps were taken to prevent the disclosure (trained and supervised contract attorneys conducted privilege review and only 16 of 60,000 documents were inadvertently produced) and where reasonable and prompt steps were taken to rectify the error (plaintiff contacted defendant the day after it learned of the inadvertent production)

Electronic Data Involved: ESI (infringement analysis)

Lynch v. Math-U-See, Inc., No. 13cv402-GPC (WMc), 2013 WL 2444662 (S.D. Cal. June 4, 2013)

Dec 01 2013

Key Insight: Court declined to quash subpoena based on the burden of reviewing the requested emails prior to production where, because the request sought all messages to or from particular persons, the court determined that no review of the emails was necessary (that is to say, if the email was to or from one of the identified persons, it was responsive to the subpoena and thus subject to production regardless of content); because the movant was a non-party, however, the court indicated its inclination to set a reasonable cost of production, before production was complete, to prevent the responding party from manipulating production to increase the award and to streamline production and ordered the requesting party to pay the responding non-party $420.00 ?as reasonable compensation for compliance?

Electronic Data Involved: Emails

Archive - December 2013