December 2013 – Page 4 – Electronic Discovery Law

In re Am. Nurses Assoc., No. 08-CV-0378 2013 WL 588992 (D. Md. Feb. 13, 2013)

Dec 01 2013

Key Insight: Relying on Fed R Civ P 45(c), court granted third party?s request to shift discovery costs related to its search for and production of requested information and noted that the costs could have been controlled had plaintiffs participated in the selection of an e-Discovery vendor more quickly following the court?s original order shifting costs (the Scope of Work and the Estimated Cost Overview had been amended six times) and had plaintiffs sought the at-issue documents from the defendant hospitals first, rather than a third party; court declined to shift all of the third party?s attorneys fees, however, noting that ?[s]ubpoenas are a cost of doing business in today?s society?

Electronic Data Involved: Database contents, ESI

Nobel Biocare USA, LLC v. Technique D?usinage Sinlab, Inc., No. 1:12cv730, 2013 WL 819911 (E.D. Va. Mar. 4, 2013)

Dec 01 2013

Key Insight: Court found costs associated with converting information into the agreed-upon format and electronically Bates stamping were analogous to copying costs and therefore taxable and thus allowed recovery of such costs over Defendant?s objection

Electronic Data Involved: Taxable costs

Connecticut Gen. Life Ins. V. Earl Scheib, Inc., No. 11-CV-0788-GPC (WVG), 2013 WL 485846 (S.D. Cal. Feb. 6, 2013)

Dec 01 2013

Key Insight: Where Defendant presented evidence that the cost of retrieving the requested information?not including the cost of attorney review or the time spent coordinating the production–was equal to the amount in controversy, the court concluded that the requests at issue were unduly burdensome and found that even where Plaintiff had explained the relevancy of the information sought, ?the expense associated with responding ? [was] too great when weighed against what is at stake in the litigation?; court?s analysis included consideration of inaccessibility based on the costs of production and noted that other discovery was available

Electronic Data Involved: ESI

United Nat?l Maint., Inc. v. Sand Diego Convention Ctr. Corp. Inc., No. 07cv2172 AJB-JMA, 2013 WL 30566 (S.D. Cal. Jan. 2, 2013)

Dec 01 2013

Key Insight: Court declined to allow recovery of costs related to the copying and maintenance of emails within an electronic database where the party seeking recovery voluntarily assumed the costs to avoid the need to review voluminous hard copy and where the copies were not obtained ?for use in the case? as evidenced by the petitioner?s reliance on only a very small portion of ESI as exhibits in this case

Electronic Data Involved: Taxable costs related to storage of emails, ESI

D.G. ex rel Strickland v. Yarbrough, No. 08-CV-074-GKF-FHM, 2013 WL 1343151 (N.D. Okla. Mar. 31, 2013)

Dec 01 2013

Key Insight: Addressing magistrate judge?s recommendations on plaintiffs? Motion for Award of Class Counsel Fees and Expenses, the district court accepted the magistrate judge?s recommendation that plaintiffs be awarded out of pocket expenses related to data storage and hosting (of electronic discovery), with some reductions; district could did not accept recommendation that plaintiffs recover for attorneys fees related to ?temporary attorneys? who conducted review of emails where there was no description provided of the work performed and where the district court took issue with plaintiffs characterization of the time as an ?expense? ?[r]ather than properly documenting and describing the time expended by the[ ] temporary attorneys?

Nature of Case: Class action, recovery of attorneys fees pursuant to 42 USC ? 1988

In re Waste Management of Texas, —S.W.3d—, 2013 WL 203603 (Tex. App. Jan. 18, 2013)

Dec 01 2013

Key Insight: Court denied petition for mandamus relief from order compelling re-production of ESI in native format with metadata where Waste Management failed to establish that the order would result in undue burden, among other things; in its analysis of undue burden, the court concluded that a request for production in a ?reasonable manner? was a sufficient to satisfy the requirement that a party ?specify the form? in which ESI should be produced (rule 196.4) and that the estimated expense of $5,500.00 to accomplish reproduction did not pose an undue burden and reasoned, in part, that the order was not unduly burdensome because of Waste Management?s ?conscious decision? to remove metadata from the original production; opinion also addressed Waste Management?s claim that the matters to be disclosed included trade secrets, its claim that the order was overbroad, issues related to the preservation of claims for appeal, and the question of whether Waste Management?s arguments related to cost allocation could adequately be addressed on appeal

Nature of Case: Petition for writ of mandamus

Hallmark Cards, Inc. v. Murley, —F.3d—, 2013 WL 149817 (8th Cir. Jan 15, 2013)

Dec 01 2013

Key Insight: Circuit court pronounced prospective rule that a district court must issue explicit findings of bad faith and prejudice prior to delivering an adverse inference instruction but found district court?s failure to do so in the present case was harmless error and that the Defendant was not entitled to a new trial

Nature of Case: Breach of contract

Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013)

Dec 01 2013

Key Insight: Upon receipt of ?dueling letters? concerning the inadvertent production of privileged information (which had been redacted but could be viewed in the metadata), the court noted that such an event emphasized ?the need for counsel for a producing party to keep a watchful eye over their e-discovery vendors,? but found that privilege was not waived because a Rule 502(d) order had been entered. Indeed, the court identified the ?one decretal paragraph? that stated that ?Defendants’ production of any documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by Defendants of any privilege applicable to those documents, including the attorney-client privilege ….? and concluded that, ?[a]ccordingly, [Defendant] ha[d] the right to claw back the minutes, no matter what the circumstances giving rise to their production were.? (Emphasis added.)

Dunbar v. Google, Inc., No. C 12-330, 2013 WL 1346597 (N.D. Cal. Apr. 2, 2013)

Dec 01 2013

Key Insight: Absent evidence that the failure to preserve prior versions of relevant documents was the result of a ?culpable state of mind,? the court declined to impose spoliation sanctions

First Fin. Bank N. A. v Bauknecht, No. 12-CV-1509, 2013 WL 3833039 (C.D. Ill. July 23, 2013)

Dec 01 2013

Key Insight: Magistrate Judge granted a motion to compel a search of all of defendant?s email accounts , not limited to the 4 specific individuals listed in the Rule 26(a) disclosures, reasoning that the 26(a) disclosure ?only meant? that the individuals identified may be used to support defendant?s claims or defense and that defendant did not indicate that the specified employees were the only ones to have responsive documents. The court denied Plaintiff?s request to compel Defendant to conduct separate searches of its email, one by ?recipient/sender? and one ?by subject matter? using specified search terms and reasoned that the latter search was broader, but indicated that Plaintiff could pay for the second search. Having declined to limit the accounts to be searched, the court acknowledged the likelihood that accounts unlikely to have relevant information would be included, and shifted 25% of the cost to the requesting party (Plaintiff).

Nature of Case: Breach of Employment Contract

Electronic Data Involved: ESI

Archive - December 2013