2013 – Page 3 – Electronic Discovery Law

Stirling v. St. Louis Cnty. Police Dept., No. 4:11CV01932, 2013 WL 2244638 (E.D. Mo. May 21, 2013)

Dec 01 2013

Key Insight: Where an individual defendant?s emails were deleted pursuant to the county?s ?routine system updates? and were therefore unavailable when requested, the court clarified that the duty to preserve arises ?when the party has notice that the evidence is relevant to litigation?most commonly when suit has already been filed ?? and NOT when a request is served and ordered defendants to search all available sources where the emails may still exist, including backup files, and to file a notice with the court advising it of such sources and that defendants must show cause why they should not be required to retrieve and produce such documents

Electronic Data Involved: Email

Thornton v. Morgan Stanley Smith Barney, LLC, No. 12-CV-298-JED-FHM, 2013 WL 1890706 (N.D. Okla. May 3, 2013)

Dec 01 2013

Key Insight: Where defendant sought to shift costs based on the expected expense of reviewing and producing the emails which was estimated to be more than $500,000, the court acknowledged that cost could be a legitimate basis for cost shifting under Rule 26(b)(2)(C), but found that the burden of the requested discovery did not outweigh its likely benefit and was not disproportionate to the case and also noted that the defendant had not established that ?a particular level of review is necessary in this case or that a ?claw back? agreement or [FRE] 502 order would not reduce or eliminate the estimated costs?

Electronic Data Involved: Email

Parsi v. Daioleslam, No. 08-705 (JDB), 2013 WL 1403226 (D.D.C. Apr. 8, 2013)

Dec 01 2013

Key Insight: Court addressed Defendant?s final bill of recoverable costs and request for reimbursement for expenses related to his prior motion for sanctions, including costs related to two rounds of forensic imaging by PricewaterhouseCoopers, and, after deducting and discounting certain costs, awarded recovery in the amount of $71,624.08 for the costs of imaging and related attorneys? fees

Electronic Data Involved: Costs related to forensic imaging

Keenan v. Int?l Assoc. of Machinists & Aerospace Workers, No. 2:10-cv-277-GZS, 2013 WL 1314302 (D. Me. Mar. 28, 2013)

Dec 01 2013

Key Insight: Court denied motion for spoliation sanctions for plaintiff?s disposal of personal computer that allegedly crashed where the evidence indicated no bad faith (plaintiff admitted that disposal of the computer was an error due to his own ignorance) and where defendants prejudice was limited in light of other evidence and their ability to explore plaintiff?s truthfulness regarding his assertions that he filed a timely appeal (a copy of which was allegedly lost when the computer crashed and was disposed of) at trial; although court declined to exclude evidence (the requested sanction) it left open the possibility that other sanctions may be imposed ?at a later stage?

Electronic Data Involved: Personal Computer

Int?l Bus. Machs. Corp. v. BGC Partners, Inc., No. 10 Civ. 128(PAC), 2013 WL 1775373 (S.D.N.Y. Apr. 25, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought spoliation sanctions for defendant?s failure to collect information regarding its utilization of the at-issue software, the court refused to grant spoliation sanctions upon finding that defendant did not have an obligation to compile information related to its use of the at-issue software where such information was not typically collected in the usual course of business and where parties are only required to produce documents that exist and have no obligation to create documents to support their adversary?s theory of the case; where plaintiff sought spoliation sanctions for defendant?s migration from the at-issue software to another, the court declined to impose sanctions citing the fact that plaintiff had itself instructed defendant to destroy all copies of the at-issue software and that plaintiff failed to present any evidence that it had requested defendant halt its migration prior to filing a motion for sanctions

Electronic Data Involved: ESI

United States v. Dish Network, LLC, No. 09-3073, 2013 WL 1749930 (C.D. Ill. Apr. 24, 2013)

Dec 01 2013

Key Insight: Court imposed sanctions for several discovery violations: 1) for failing to provide Plaintiffs with information regarding its process for scrubbing calling lists against the do not call list and for providing a deponent with insufficient knowledge of the issue, court characterized defendant?s behavior as ?obstructive, contumacious, and willful? and precluded the use of evidence about the creation and scrubbing of telemarketing campaign lists; 2) for failing to preserve ESI related to a particular calling campaign despite a duty to preserve, court issue finding of fact that the campaign was conducted for commercial purposes; 3) for obstructive behavior related to whether it shared lead lists to retailers, including inaccurate statements and for failing to preserve information related to the same, court imposed adverse inference

Electronic Data Involved: ESI

Ubiquiti Networks, Inc. v. Kozumi USA Corp., No. 12-cv-2582 CW (JSC), 2013 WL 1767960 (N.D. Cal. Apr. 15, 2013)

Dec 01 2013

Key Insight: Court found Plaintiff had failed to meet its burden of demonstrating that Kozumi had control over non-party consultant?s emails absent any evidence that defendants could legally compel the non-party to produce the requested documents

Electronic Data Involved: Emails

United States ex rel Lusby v. Rolls-Royce Corp., No. 1:03-cv-680-SEB-WGH, 2013 WL 1666745 (S.D. Ind. Apr. 17, 2013)

Dec 01 2013

Key Insight: Court awarded costs in favor of defendant, including costs related to electronic discovery: ?We have carefully considered Plaintiff’s objections to the nature of the costs sought to be recovered by Defendant, in particular, to the costs incurred in connection with the production of electronically stored information, but we do not find Plaintiff’s objections to be meritorious. As Defendant points out in its briefings, we have awarded as costs the expense of producing electronically stored information in several other recent cases, and Plaintiff’s objections are based largely on judicial decisions issued by courts in other districts and circuits, including the Eastern District of Missouri and the Ninth Circuit Courts of Appeals, which are contrary to the rulings within our Seventh Circuit.?

Electronic Data Involved: ESI (taxable costs)

Advanced Tactical Ordnance Sys. LLC v. Real Action Paintball, Inc., No. 1:12-CV-296, 2013 WL 682848 (N.D. Ind. Feb. 25, 2013)

Dec 01 2013

Key Insight: Court granted motion to compel and ordered production of a ?complete copy? of Defendant?s database, despite noting that the request appeared ?facially intrusive,? where the information was ?highly relevant? to the claims in the case, where Defendant failed to provide sufficient information regarding the allegedly proprietary contents of the database, and where an attorneys? eyes only designation was sufficient to protect any trade secrets, etc.

Electronic Data Involved: Database

Fed. Deposit Ins. Co. v. Johnson, No. 2:12-cv-00209-KJD-PAL, 2013 WL 1195698 (D. Nev. Mar. 22, 2013)

Dec 01 2013

Key Insight: Considering competing ESI protocols, court approved FDIC?s protocol which included provision that Defendant would pay $.06 per page for documents selected for physical production after review in an electronic database citing, among other things, the fact that the FDIC had already spent $791,000 to locate and produce responsive information and relying on a line of cases ?which have held that a party responding to discovery requests is responsible for the initial costs of reviewing and preparing paper documents and ESI for inspection and copying, but is not responsible for paying copying costs for voluminous materials.?

Electronic Data Involved: ESI

Archive - 2013