December 1, 2015 – Page 2 – Electronic Discovery Law

Osborne v. Billings Clinic, No. CV 14-126-BLG-SPW, 2015 WL 1412626 (D. Mont. Mar. 26, 2015)

Dec 01 2015

Key Insight: Where requesting party failed to request a specific format of production and the responding party therefore produced in PDFs, the court reasoned that Defendant failed to assert that it could not produce the information as it was originally kept and that Plaintiff should not be at a ?disadvantage by having to slog through thousands of pages of records in unusable form? and granted Plaintiff?s motion to compel production of the at-issue medical records in the manner in which they were maintained

Electronic Data Involved: Electronically stored medical records

U.S. Ethernet Innovations, LLC v. Acer, Inc., No. 4:10-CV-03724-CW (LB), 2015 WL 5187505 (N.D. Cal. Sept. 4, 2015)

Dec 01 2015

Key Insight: Reasoning that ?[t]he inquiry about what electronic processes are taxable turns on whether they are part of making copies ?necessarily obtained for use in the case? or instead are solely for the convenience of counsel? the court indicated that it would award costs for load file preparation, but not for processing data

Electronic Data Involved: Taxable Costs

Mobile Telecomm. Techs., LLC v. Samsung Telecomm. Am., LLC, No. 2:13-cv-259-RSP, 2015 WL 5719123 (E.D. Tex. Sept. 28, 2015)

Dec 01 2015

Key Insight: Court denied recovery of OCR costs where Defendant failed to show that the step was necessary for making copies, where no party had identified 5th Circuit authority allowing recovery of OCR costs, and where the holding was consistent with the Court?s standing order, which specifically instructed that e-Discovery costs were not allowed, including ?cost for document collection, document processing, and document hosting.?

Electronic Data Involved: Taxable costs

Chung v. El Paso School Dist. #11, No. 14-cv-01520-KLM, 2015 WL 7253334 (D. Colo. Nov. 17, 2015)

Dec 01 2015

Key Insight: Court held clerk did not err in awarding costs for ?loading documents into an electronic data base for production to Plaintiff on computer disks during discovery.?

Electronic Data Involved: Taxable costs

Junious Vital v. Nat?l Oilwell Varco, No. H-12-1357, 2015 WL 40417 (S.D. Tex. Nov. 30, 2015)

Dec 01 2015

Key Insight: Court sustained objection to award of costs for ?monthly expenses associated with maintaining a database of electronically stored information used to locate, retrieve, and store the plaintiffs? emails.?

Electronic Data Involved: Taxable costs

Bumpers v. Austal, U.S.A. LLC, No. 08-00155-KD-N, 2015 WL 6870122 (S.D. Ala. Nov. 6, 2015)

Dec 01 2015

Key Insight: Where Defendant sought to recover for emails and other ESI compiled by Plaintiff?s expert as ?copying costs? (specifically, Defendant sought ?recovery to produce emails as part of discovery and to obtain already compiled electronic data to support its Daubert motion to exclude Dr. Bradley?s testimony, characterizing them as ?digital copies? necessarily obtained for use in the case?), court reasoned that the costs did not ?relate to a deposition transcript or a true ?digital copy,?? that ?creating an electronic database/compilation or enhanced digital files ?goes well beyond the statutory intent? for taxable digital copies,? and that Defendant had not explained how the data was ?necessarily obtained for use in the case rather than the convenience of counsel? and denied the request

Electronic Data Involved: Taxable costs

Broadband iTV, Inc. v. Hawaiian Telecom, Inc., NO. 14-00169 ACK-RLP, 2015 WL 9274092 (D. Haw. Nov. 25, 2015)

Dec 01 2015

Key Insight: Costs generically described as ?discovery services? and broken down as ?Active Hosting,? ?Nearline Hosting,? and ?User Access Fee? were denied where the generic descriptions were insufficient to meet the standard for specificity in the Ninth Circuit and where the descriptions failed to indicate that the fees were incurred for making copies

Electronic Data Involved: ESI (Taxable costs under 1920(4))

Moulton v. Bane, No. 14-cv-265-JD, 2015 WL 7776892 (S.D.N.H. Dec. 2, 2015)

Dec 01 2015

Key Insight: Where Defendant unintentionally lost text messages when his service provider failed to transfer those text messages to his new phone?despite his request to transfer ?everything??and where the texts were later recovered by a forensic analysist, court declined to impose ?punitive sanctions? and ordered Defendant to pay the cost of retrieving the messages

Electronic Data Involved: Text messages (WhatsApp)

Hanwha Azdel Inc. v. C & D Zodiac, Inc., No. 6:12-CV-00023, 2015 WL 1417058 (Mar. 27, 2015)

Dec 01 2015

Key Insight: District Judge adopted in toto recommendations of the Magistrate Judge, including approval of costs related to converting ESI into a reasonable format, where the conversion was requested by an opposing party and ultimately ordered by the court

Electronic Data Involved: ESI

S.E.C. v. Bonan Huang, No. 15-269, 2015 WL 5611644 (E.D. Pa. Sept. 23, 2015)

Dec 01 2015

Key Insight: Court denied ?Plaintiffs? motion to compel Defendant s to disclose their secret personal passcodes for smartphones owned by their former employer who, as a matter of policy, required their employees to keep their personal passcodes secret from everyone? upon concluding that ?[s]ince the passcodes to Defendants? work-issued smartphones are not corporate records, the act of producing their personal passcodes is testimonial in nature and Defendants properly invoke their fifth Amendment privilege? and that the ?foregone conclusion doctrine? did not apply ?as the SEC Cannot show with ?reasonable particularity? the existence or location of the documents it seeks?

Electronic Data Involved: Passcodes or passwords to smartphones

Archive - December 1, 2015