2013 – Page 19 – Electronic Discovery Law

Martha Dawson Named One of Top 250 Women in Intellectual Property

Nov 06 2013

Managing Intellectual Property – IP Stars has recognized K&L Gates attorneys Martha Dawson, Susan Hollander, Susan Jackson, Pallavi Wahi, Christine Vito, and Rachal Winger in its inaugural edition of “Top 250 Women in IP 2013.”

The nominees were chosen based upon the rankings of the 2013 edition of IP Stars, researched between June 2012 and April 2013. That research included thousands of interviews and surveys by intellectual property partners and law firms across the United States.

Click here to see a full copy of the list.

No Sanctions for Spoliation of Emails in Former Officers’ Personal Accounts Absent Evidence of Bad Faith or Prejudice

Oct 31 2013

Puerto Rico Tel. Co., Inc. v. San Juan Cable, LLC, No. 11-2135 (GAG/BJM), 2013 WL 5533711 (D.P.R. Oct. 7, 2013)

Plaintiff alleged that the defendant failed to preserve relevant emails from the personal accounts of three former officers (the CEO, General Manager, and Senior Vice President) and sought an adverse inference instruction. While the court agreed that Defendant’s failure to locate certain emails was a breach of the duty to preserve and constituted spoliation, no sanctions were imposed absent evidence of bad faith or a demonstration of prejudice.

Court Concludes that “at least in the Seventh Circuit,” the Duty to Preserve is Triggered “when a litigant knew or should have known that litigation was imminent” as Opposed to “Reasonably Foreseeable”

Oct 18 2013

In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2013 WL 5377164 (S.D. Ill. Sept. 25, 2013)

In this case, the court found that the duty to preserve arose after the at-issue information was destroyed in accordance with Defendant’s document retention policies and that an adverse inference was not warranted. Considering the proper standard to employ when assessing when the duty to preserve is triggered, the court concluded that “the duty to preserve is triggered only when a litigant knew or should have known that litigation was imminent (at least in the Seventh Circuit).”

Da Silva Moore: Plaintiffs’ Petition for Writ of Certiorari on Question of Recusal Denied

Oct 09 2013

On October 7, 2013, the Supreme Court of the United States denied Plaintiffs’ Petition for Writ of Certiorari arising from Magistrate Judge Andrew Peck’s refusal to recuse himself in this case. As was previously reported on this blog, Plaintiffs sought an answer to the question: “Should a court of appeals review a judge’s denial of a motion to recuse de novo or for an abuse of discretion?” Readers may recall that the plaintiffs in this case sought the recusal of Magistrate Judge Peck following his approval of Defendant’s predictive coding protocol. That motion was denied by Magistrate Judge Peck. Plaintiffs then took the issue before the District Court, which likewise declined to compel recusal, and then to the Second Circuit, which denied Plaintiffs’ petition for a writ of mandamus. Plaintiffs then petitioned the United States Supreme Court for a Writ of Certiorari, which, as discussed, was denied.

E.D. Michigan Approves Model Order Relating to the Discovery of Electronically Stored Information & a Meet and Confer Checklist for Pilot Use

Sep 27 2013

The judges of the United States District Court for the Eastern District of Michigan have announced the approval, “on a pilot period basis,” of a Model Order Relating to the Discovery of Electronically Stored Information and a Rule 26(f) meet and confer checklist. “It is within the judicial officer’s discretion whether these materials may be used.”

The Model Order sets forth a series of principles which address a myriad of issues including cooperation, proportionality, the duty to meet and confer, preservation, the identification of electronically stored information (ESI) and format of production, among others. The checklist sets forth a series of potential topics to be discussed at the parties’ meet and confer.

Court Declines to Compel Response to “Ultra-Broad” Request for Passwords and User Names or Allow “Exhaustive Forensic Examination” of Computers

Sep 20 2013

NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515, 2013 WL 3974535 (E.D. La. Aug. 2, 2013)

In this trademark infringement case, Defendant sought to compel Plaintiff and its principal (a third-party defendant) to produce “passwords and user names to all online web sites related to the issues in this litigation” and to compel Plaintiff and its principal to “submit their computers to an exhaustive forensic examination.” Because the request for passwords and user names was “ultra-broad” and would allow Defendant to “roam freely through all manner of personal and financial data” and because Defendant “failed sufficiently to justify the broad forensic computer examination it request[ed],” the court denied the motion.

Magistrate Judge Declines to Presume Prejudice, Recommends Denial of Motion for Sanctions

Sep 13 2013

Herrmann v. Rain Link, Inc., No. 11-1123-RDR, 2013 WL 4028759 (D. Kan. Aug. 7, 2013)

Plaintiff sought sanctions for Defendants’ allegedly intentional spoliation of evidence and argued that prejudice could be presumed. The Magistrate Judge declined to do so and also found that Defendants’ spoliation was merely negligent. Thus, absent a showing of actual prejudice, the Magistrate Judge recommended that Plaintiff’s motion be denied.

Plaintiff Ordered to Adhere to “Document Production Agreement” Despite Difficulty Finding an “Inexpensive” Technology Provider

Sep 04 2013

Northstar Marine, Inc. v. Huffman, CA 13-00037-WS-C (S.D. Ala. Aug. 27, 2013)

Despite Plaintiff’s assertion that it was “having difficulty locating an inexpensive provider of electronic search technology to assist with discovery” the court granted Defendants’ motion to enforce Plaintiff’s compliance with the parties’ document production agreement which, among other things, required each party to “immediately arrange to use computer-assisted search technology” in furtherance of its electronic discovery obligations and to immediately produce its search results in native format.

Citing Proportionality, Court Concludes it would be “Senseless” to Require Plaintiff to “Go to Great Lengths” to Produce Evidence Defendants are “Able to Do Without”

Sep 03 2013

Apple Inc. v. Samsung Elecs. Co. Ltd., No. 12-CV-0630-LHK (PSG), 2013 WL 4426512 (N.D. Cal. Aug. 14, 2013)

Relying on the “all-to-often [sic] ignored discovery principle” of proportionality the court declined to compel Plaintiff “to go to great lengths” to produce information that the defendants could “do without.”

Court Warns “Continuing Problems” with Document Production Will Result in Order to Retain an e-Discovery Vendor

Aug 30 2013

Logtale, Ltd. v. IKOR, Inc., No. C-11-05452 CW (DMR), 2013 WL 3967750 (N.D. Cal. July 31, 2013)

Plaintiff sought to compel Defendants’ production of all responsive documents and also sought sanctions, including attorneys’ fees and an order requiring Defendants “to retain an e-discovery vendor to conduct a thorough and adequate search for responsive electronic documents.” Acknowledging that it shared Plaintiff’s concerns “about the inadequacy of Defendants’ search for responsive documents,” the court granted Plaintiff’s motion to compel and also granted the request for attorneys’ fees (although at a reduced rate). The court declined to order the retention of an e-discovery vendor “at this time,” but warned that such an order would be entered if problems with Defendants’ document production continued.

Archive - 2013