2013 – Electronic Discovery Law

Sanctions Imposed for Inadequate Implementation of Litigation Hold

Dec 20 2013

In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2013 WL 6486921 (S.D. Ill. Dec. 9, 2013)

In this case, the court addressed the adequacy of Defendants’ preservation efforts, including the implementation of their litigation hold(s) and determined that sanctions were warranted for Defendants’ violation of the court’s case management orders in bad faith. Accordingly, the court ordered production of relevant documents or an explanation regarding why they could not be produced, payment of the Plaintiffs’ Steering Committee’s (PSC) costs and fees “in pursuing the issue of the defendants’ violations” and that the defendants produce their employees for depositions in the United States. The court also imposed a fine of $931,500 jointly and severally against both defendants ($500 per case). Read More

Court Declines to Compel Identification of Seed Set, Encourages Cooperation

Dec 13 2013

In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391, 2013 WL 6405156 (N.D. Ind. Aug, 21, 2013)

Previously in this case, the court ruled that Biomet need not start again on its document production for which it utilized both keyword searching and predictive coding. (See summary here.) In this opinion, the court addressed the Steering Committee’s request that the discoverable documents used in Biomet’s seed set be identified and declined to compel such identification. Despite this, the court noted Biomet’s “unexplained lack of cooperation” and urged Biomet to “re-think its refusal.”

West Penn Allegheny Health Sys. v. UPMC, No. 2:09-cv-00480-JFC, 2013 WL 12134101 (W.D. Pa. Feb. 15, 2013)

Dec 01 2013

Key Insight: Where a non-party resisted production of requested information arguing that it could be more easily obtained from elsewhere and that production would impose an undue burden, including an estimated $38,00 in personnel costs alone, the court reasoned that there was no rule prohibiting Plaintiff from seeking documents from a non-party that were also likely to be in Defendant?s possession and, addressing the alleged burden, rejected arguments based on the documents? lack of organization (?less than optimal recordkeeping? did not rise to the level of ?undue burden?); where the requesting party offered to pay the costs of collection and review (by outside counsel), court rejected non-party?s privacy concerns in light of the protective order and recommended that if the non-party rejected the cost sharing offer, he should be required to pay for production himself; motion to quash denied

Electronic Data Involved: ESI

One Unnamed Deputy Dist. Attorney v. Cty. of Los Angeles, No. CV 09-7931 JCG / 10-6414 JCG, 2013 WL 12140937 (C.D. Cal. Aug. 16, 2013)

Dec 01 2013

Key Insight: Defendant moved to re-tax costs of $11,070.26 for scanning, bates stamping and electronically producing hard copy documents, which the clerk denied. Plaintiff argued the costs were incurred before Plaintiff joined the action, the costs of discovery were not generally recoverable and the amount was excessive. The court disagreed, noting Defendant?s costs were routinely recoverable under 28 U.S.C. ? 1920(4) and were supported by ?sufficiently detailed? invoices (the majority of which were dated after the Plaintiff joined the action). The court granted the motion and taxed $11,070.26 against Plaintiff.

Electronic Data Involved: ESI

RPM Pizza LLC v. Argonaut Great Cent. Ins. Co., No. 10-684-BAJ-SCR, 2013 WL 6054551 (M.D. La. Nov. 15, 2013)

Dec 01 2013

Key Insight: Court ordered defendant to provide ESI in the format requested, reasoning that defendant waived its objection by not timely asserting it, and also rejected the argument that the plaintiff had not shown why it was necessary for defendant to produce in the requested form where, pursuant to Fed. R. Civ. P. 24(b)(2)(E), a requesting party is not required to make such a justification

Electronic Data Involved: ESI

Kwan Software Eng?g, Inc. v. Foray Techs., LLC, No. C 12-03762 SI, 2013 WL 5487421 (N.D. Cal. Oct. 1, 2013)

Dec 01 2013

Key Insight: Where parties agreed to production of ESI in searchable form with metadata but Defendant produced TIFF images without metadata, court ordered re-production of ESI in accordance with parties’ agreement and amended the pretrial schedule

Electronic Data Involved: ESI and metadata

Ancora Techs., Inc. v. Apple, Inc., No. 11-CV-06357 YGR, 2013 WL 4532927 (N.D. Cal. Aug. 26, 2013)

Dec 01 2013

Key Insight: Addressing taxable costs, court allowed recovery of costs related to conversion of documents to TIFF file format which the parties agreed would be the format of production but declined to allow costs for hosting electronic documents

Electronic Data Involved: ESI/ taxable costs

Novick v. AXA Network, LLC, No. 07 Civ. 7767(AKH)(KNF), 2013 WL 5597547 (S.D.N.Y. Oct. 3, 2013)

Dec 01 2013

Key Insight: Plaintiff sought production of audio recordings which Defendants initially indicated were available. Upon being ordered to produce certain information regarding those recordings, Defendants indicated they were unable to locate them. Following Plaintiff?s motion for sanctions, the recordings were discovered in a closet, but Defendants argued it would be unduly burdensome to restore and listen to the recordings and that production should not be required. Upon Plaintiff?s motion for sanctions, the court found that Defendants had willfully violated the court?s orders and prejudiced the Plaintiff. Thus, the court ordered Defendants to produce the recordings at their expense and to bear the costs of additional depositions to be taken by the Plaintiff. The court also ordered Defendants and counsel to bear Plaintiff?s reasonable attorneys fees in equal proportion.

Electronic Data Involved: Audio recordings of phone calls

Novick v. AXA Network LLC, No. 07 Civ. 7767(AKH)(KNF), 2013 WL 5338427 (S.D.N.Y. Sept. 24, 2013)

Dec 01 2013

Key Insight: Conducting its cost-shifting analysis ?under the Zubulake standard,? court reasoned that defendants ?failed to show that cost-shifting is appropriate because they did not establish that the production at issue was unduly burdensome or expensive, that is, that the data were kept in an inaccessible format.?

Electronic Data Involved: Emails

Fairview Ritz Corp. v. Borough of Fairview, No. 09-875 (JLL), 2013 WL 5435060 (D.N.J. Sept. 27, 2013)

Dec 01 2013

Key Insight: Upon motion for reconsideration based on Plaintiff?s location and production of a document previously found to have been spoliated, court found that an adverse inference and monetary sanctions predicated on the finding of spoliation were no longer appropriate but ordered Plaintiff?s counsel to show cause why monetary sanctions should not be imposed for the delay and Defendants? protracted efforts to procure the document?s production

Electronic Data Involved: Single document (ESI)

Archive - 2013