Archive - 2013

Country Vintner of North Carolina, LLC v. E & J Gallo Winery, Inc., —F. 3d.—, 2013 WL 1789728 (4th Cir. Apr. 29, 2013)

In this case, the Fourth Circuit clarified “what expenses related to electronically stored information (“ESI”) are taxable under the federal taxation-of-costs statute as ‘[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case’” and affirmed the district court’s order “taxing only the costs of converting electronic files to non-editable formats, and transferring files onto CDs.”

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In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013)

In this product liability case, Plaintiffs’ Steering Committee objected to Biomet’s reliance on keyword searching to initially reduce the volume of information it then subjected to predictive coding and sought to require Biomet to start again and to utilize only predictive coding, with plaintiffs’ input.  The court concluded that Biomet’s efforts complied with its discovery obligations under the civil rules.

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W Holding Co., Inc. v. Chartis Ins. Co. of Puerto Rico, No. CIV. 11-2271 GAG, 2013 WL 1352426 (D.P.R. Apr. 3, 2013)

In this case the court addressed competing proposed protocols for the discovery of electronically stored information and declined to approve a provision that would require cost-shifting, among others.  Notably, the court rejected the argument that the at-issue ESI was inaccessible (thus justifying cost-shifting) because the responding party did not show “that access to [the data] is hindered by any unique technological hurdles.”

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Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013)

In this personal injury action, the court imposed spoliation sanctions for Plaintiff’s failure to preserve his Facebook account.

Plaintiff alleged that as the result of a work-related accident he sustained numerous injuries that rendered him permanently disabled.  Defendants sought production of information related to Plaintiff’s social media accounts and online business activities such as eBay.  In response, Plaintiff provided signed authorizations for the release of information from certain sites, but did not include authorization for the release of records from Facebook.

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In re Coventry Healthcare, Inc. ERISA Litig., No. AW 09-2661, 2013 WL 1187909 (D. Md. Mar. 21, 2013)

In this brief opinion, the court considered Defendants’ claim that the burden of producing the requested ESI outweighed its potential benefit to the class action plaintiffs and granted Plaintiffs’ motion to compel.  Specifically, Defendants claimed that Plaintiffs’ search terms, as applied to the ESI of selected custodians from the relevant discovery time frame, “hit” on approximately 200,000 documents and that it would cost approximately $388,000 “to process host and review the data for responsiveness and privilege.”  Defendants did not, however, suggest alternative measures to accommodate Plaintiffs’ discovery needs “other than negotiating more refined search terms.” 

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EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH (D. Colo. Feb. 27, 2013)

Previously in this case, the court ordered broad discovery of the claimants’ social media, text messages and email.  (See a summary of that opinion, here.)  In this opinion, the court imposed sanctions for the EEOC’s actions which resulted in unnecessary delays and expense for the defendant, including actions related to the facilitation of the court ordered discovery.  Notably, the sanctions were imposed pursuant to Rule 16(f), based on the Tenth Circuit’s “broader” interpretation of its application.

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Juster Acquisition Co., LLC v. N. Hudson Sewerage Auth., No. 12-3427 (JLL), 2013 WL 541972 (D.N.J. Feb. 11, 2013)

In this case, the court denied Defendant’s motion for a protective order “regarding the sixty-seven (67) electronic word searches” demanded by the plaintiff.  It also denied Defendant’s request that the cost of running those searches be shifted to the plaintiff.

Plaintiff’s first Request for Production included a list of 67 proposed search terms to be run against Defendant’s ESI.  In response, Defendant sought a protective order or, alternatively, an order shifting the costs associated with the search, arguing it was “entitled” to a protective order because it had already produced 8000 pages of responsive documents (in hard copy) and because, in its view, the requested search terms were “quite broad and vague.”

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