December 2014 – Page 3 – Electronic Discovery Law

Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2014 WL 439785 (S.D. W. Va. Feb 4, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted plaintiffs’ request for reasonable costs incurred in bringing the motion as plaintiffs demonstrated that Ethicon’s negligent loss of relevant evidence unduly complicated plaintiffs’ discovery and case preparation and unnecessarily increased the costs of litigation, but denied request for more serious spoliation sanctions since loss of evidence was not willful or deliberate and plaintiffs could not show irreparable prejudice; magistrate recommended that district judge allow plaintiffs the opportunity to introduce evidence regarding Ethicon’s loss of relevant documents on a case-by-case basis, and when appropriate, tender an adverse inference instruction

Nature of Case: Product liability

Robinson v. County of San Joaquin, No. 2:12-cv-2783 MCE GGH PS, 2014 WL 3845775 (E.D. Cal. July 31, 2014)

Dec 01 2014

Key Insight: A clearly exasperated court described the parties’ discovery efforts to date, highlighted the inconsistencies/incompleteness in response, “as well as the complete cacophony of the San Joaquin County e-mail systems and retrieval,” and issued one final, specific order to be followed by defendant lest serious sanctions issue; among other things, court ordered defendant to perform computer-by-computer search for all current employees in order that any emails relating to plaintiff’s discrimination claims or job performance from 2007 to present may be produced, acknowledging that substantial work would be required for compliance but that judge was “not responsible for the County’s email systems which apparently have been designed for individual control and with no concern for litigation responsibilities”

Galena St. Fund, LP v. Wells Fargo Bank, N.A., No. 12-cv-00587-BNB-KMT, 2014 WL 943115 (D. Colo. Mar. 10, 2014)

Dec 01 2014

Key Insight: Applying FRE 502, court rejected plaintiff?s argument that defendant waived attorney-client privilege by producing 150 privileged documents among production totaling some 208,000 documents consisting of over 2.2 million pages, as defendant established an elaborate protocol for review and production of documents and took reasonable steps to prevent disclosure of privileged documents, demonstrated that the production was inadvertent, and took reasonable steps to rectify the error with reasonable promptness

Pegasus Aviation I, Inc. v. Varig Logistica S.A., 2014 WL 2522717 (N.Y. App. Div. June 5, 2014)

Dec 01 2014

Key Insight: Divided appellate court reversed trial court?s order granting adverse inference instruction against defendants where plaintiffs did not establish relevance of lost material, facts did not support a finding of gross negligence on the part of defendants, but at most, a finding of simple negligence in failing to ensure that acquired company instituted a litigation hold, and plaintiffs presented no evidence that such a hold would have saved the relevant ESI from destruction when the acquired company?s entire computer system crashed

Georgel v. Preece, No. 0:13-CV-57-DLB, 2014 WL 12647776 (E.D. Ky. Feb. 28, 2014)

Dec 01 2014

Key Insight: Court denied without prejudice Defendant?s motion to compel production of Plaintiff?s social media records absent a ?factual predicate? upon which to do so, i.e., a presentation of some factual basis that the social media pages would reveal relevant information, but declined to say that Defendant must provide information from Plaintiff?s public pages to satisfy the threshold burden for establishing relevance

Nature of Case: Personal injury

Electronic Data Involved: Social media (Facebook, LinkedIn)

Memory Lane Inc. v. Classmates Int?l. Inc., No. SACV 11-940-JLS (RNBx), 2014 WL 12617383 (C.D. Cal. Jul. 25, 2014)

Dec 01 2014

Key Insight: Defendant moved for the court to tax costs for e-Discovery tasks including TIFF conversion, native file processing, CD creation, blowbacks and ?Data reduction & filtering? that the clerk had disallowed. The court disallowed costs for data reduction/filtering, native file processing and ?technical time? and allowed costs for Tiff conversion, CD/DVD creation, imaging and blowbacks (costs were reasonable and necessary).

Nature of Case: Taxable costs

Electronic Data Involved: ESI

Taylor v. Shippers Transp. Express Inc., No. CV 13-02092 BRO (PLAx), 2014 WL 12560879 (C.D. Cal. Jul. 7, 2014)

Dec 01 2014

Key Insight: Court imposed sanctions, including an adverse inference and possible evidence preclusion (TBD after recovery efforts were exhausted), where Defendant failed to preserve its employees? text messages, including highly relevant text messages, by failing to implement a litigation hold and where despite Defendant?s attempts to recover the deleted information, the court deemed it ?very unlikely? that such efforts would result in full production; court also reasoned that even if all missing documents were produced, Plaintiffs would still be prejudiced in light of less time to review the evidence and prepare for trial

Nature of Case: Class action employment litigation

Electronic Data Involved: Text messages, ESI

Stewart v. Continental Cas. Ins. Co., No. 12-005320KD-B, 2014 WL 12600282 (S.D. Ala. Jan. 1, 2014)

Dec 01 2014

Key Insight: Where responding party claimed that cloning and searching the hard drives from ?old computers? changed out in 2010 would cost more than $13,000 and submitted the affidavit of its CEO in support of its claim that the information was not reasonably accessible, the court reasoned it was ?not clear? that the ESI was not reasonably accessible or that the cost outweighed the ?importance and usefulness of the emails? and ordered the responding party to make arrangements for a forensic search of the CEO?s old hard drive which ?should yield representative information regarding the accessibility of the requested emails, the probability of locating the emails, the usefulness of the emails, the actual cost likely to be incurred for a search of all of the old computer hard drives at issue?; court also denied cost-shifting request ?at this time?

Nature of Case: Insurance

Electronic Data Involved: Emails on old computer hard drives

Bombardier Recreational Prods. Inc. v. Arctic Car, Inc., No. 12-cv-2706 (MJD/LIB), 2014 WL 10714011 (D. Minn. Dec. 5, 2014)

Dec 01 2014

Key Insight: Addressing a myriad of motions, court declined to compel Defendant?s production of irrelevant ESI hit upon by agreed-upon search terms reasoning that the rules permit and even encourage relevancy screening ?in an effort to avoid large, largely nonresponsive documents dumps mean to obscure and cloak relevant documents? and that Plaintiff failed to establish that Defendant had withheld relevant materials or agreed to the production of all search hits; court declined to compel Defendant?s production of a 30(b)(6)(witness to provide ?discovery on discovery? reasoning that Plaintiff failed to demonstrate that the information sought was ?relevant to – or may lead to the discovery of information relevant to – any claim or defense at issue in the present case? and that the request ?treads dangerously close to encroaching on attorney work product privilege?

Nature of Case: Patent infringement

Electronic Data Involved: ESI search hits, “discovery on discovery”

Invivo Therapeutics Corp. v. PixarBio Corp., No. 14-CV_7481-F, 2014 WL 7444828 (Mass. Super. Ct. Dec. 23, 2014)

Dec 01 2014

Key Insight: Where Plaintiff suspected that Defendant was in possession of its confidential and proprietary information but where the ex-employee accused of sharing that information was ?incommunicado, and may well have left the jurisdiction,? court addressed Plaintiff?s request for forensic analysis of ALL of Defendant?s devices to determine the presence of the at-issue information and, ?in an effort to find a reasonable middle ground that serve[d] both parties interests,? ordered Plaintiff to identify the employee of Defendant most likely to have received the information and that all devices of that individual be searched; depending on outcome of search, court indicated that a search of ALL of Defendant?s devices was possible

Nature of Case: Violation of non-compete, potential possession of confidential / proprietary information

Electronic Data Involved: Computers, laptops (contents)

Archive - December 2014