December 1, 2015 – Page 4 – Electronic Discovery Law

Good v. Am. Water Works Co., Inc., No. 2:14-1374, 2015 WL 1757978 (S.D. W. Va. Apr. 17, 2015)

Dec 01 2015

Key Insight: Where defendant objected to Plaintiffs? requests for production on grounds of relevance, but nevertheless produced the information in the format in which it was ordinarily maintained (Microsoft SQL Server format) and also provided Plaintiffs with the means to access the data in a ?parallel environment? and then later in an excel format for a limited period of time, indicating that the earlier periods of time were not reasonably accessible, and where Plaintiffs ultimately ?did not disagree? that the information was not as useful as they had thought, the court found the rest of the requested information (from the earlier time periods) was not reasonably accessible and that the burden of production outweighed its likely benefit and denied the motion to compel unless good cause could be shown

Electronic Data Involved: Archived ?SCADA? data from a Microsoft SQL Server format

Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW, 2015 WL 638198 (D. Colo. Feb. 13, 2015)

Dec 01 2015

Key Insight: Plaintiffs brought a ?Motion to Review Clerk?s Taxing of Costs Under F.R.C.P. 54(D)(1).? Specifically, Plaintiffs sought review of the clerk?s determination ?concerning the costs taxed amount of $55,649.98, which accounts for Defendants contracting with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information requested by Plaintiffs.? The court held that ?[b]ecause Defendants? costs related to the electronically stored information (?ESI?) are expenses enumerated in 28 U.S.C. ? 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs? Motion is denied.?

Electronic Data Involved: ESI

Bright Sols. For Dyslexia, Inc. v. Doe, No. 15-cv-01618-JSC, 2015 WL 5159125 (N.D. Cal. Sept. 2, 2015)

Dec 01 2015

Key Insight: Court granted motion for expedited discovery to discover the identity of Defendant Doe; court also granted Plaintiffs? ex parte motion for a preservation order directing eBay, PayPal, and Google to preserve account information where the third parties had no independent duty to preserve absent a court order and where Plaintiffs established that: the at-issue data was regularly destroyed by the third parties in their regular business practices, that Plaintiffs would be ?irreparably harmed? by the loss of the at-issue data (because they could not serve Defendant and stop the alleged infringement), and that the third parties had the capability to maintain the information, particularly because of the limited nature of the request

Nature of Case: Trademark and copyright infringement

Burnett v. Ford Motor Co., No. 3:13?cv?14207, 2015 WL 1650439 (S.D. W. Va. April 14, 2015); Burd v. Ford Motor Co., No. 3:13?cv?20976, 2015 WL 1650447 (S.D. W. Va. April 14, 2015); Johnson v. Ford Motor Co., No. 3:13?cv?06529, 2015 WL 1650428 (S.D. W. Va. April 14, 2015)

Dec 01 2015

Key Insight: Inadvertently produced ESI

Nature of Case: Product Liability

Cableview Commc?ns of Jacksonville, Inc. v. Time Warner Cable Se., LLC, 3:13-cv-306-J-34JRK, 2015 WL 12838175 (M.D. Fla. May 4, 2015)

Dec 01 2015

Key Insight: The Court denied Plaintiff?s Motion to Compel Production of Documents. Plaintiff sought Defendant?s tax returns and document retention policies. Plaintiff entered into an agreement with Defendant in 2004 to provide cable television installation services. In 2010 Defendant tendered a workplace injury claim to Plaintiff for indemnification. Plaintiff?s insurance carrier denied coverage and the claim was left unpaid. In 2012, Plaintiff informed Defendant that it was being acquired by another company. One day before the closing of the transaction, Defendant contacted the acquiring company and made repayment for the workplace injury claim ?a condition to assent to assignment? of the agreement. Plaintiff alleged tortious interference and sought Defendant?s tax returns to demonstrate its ability to pay punitive damages. Plaintiff further alleged spoliation claiming there were missing emails and sought documents regarding Defendant?s document retention policies. The Court denied Plaintiff?s Motion holding that the request for punitive damages cannot form the basis for financial worth discovery since Plaintiff failed to make a reasonable showing of tortious interference. Further, there was no spoliation given that Defendant located and produced the emails in question and so Defendant?s document retention policies were not relevant.

Nature of Case: Workplace injury claim

Electronic Data Involved: Emails, ESI

East Bridge Lofts Prop. Assoc., Inc. v. Crum & Forster Specialty Ins. Co., No. 2:14-cv-2567-RMC, 2015 WL 12831731 (D.S.C. June 18, 2015)

Dec 01 2015

Key Insight: Where Plaintiff sought forensic examination of email accounts not searched by Defendants, the court acknowledged the ?expense and difficulty? of such examinations and reasoned that ?mere skepticism? that relevant information has not been produced is insufficient to warrant such drastic measures and thus denied the request; court reasoned Defendant had failed to reveal the search terms utilized to identify responsive documents in searches of three other email accounts and that Plaintiffs had established the relevancy of all of the requested accounts and ordered the parties to meet and confer as to an appropriate search methodology for all accounts

Nature of Case: Insurance litigation: bad faith

Electronic Data Involved: Forensic examination of email accounts

Hespe v. City of Chicago, No. 13 C 7998, 2016 WL 7240754 (N.D. Ill. Dec. 15, 2015)

Dec 01 2015

Key Insight: Where a magistrate judge found the requested inspection of Plaintiff?s devices was not proportional to the needs of the case ?especially? in light of Plaintiff?s privacy and confidentiality interests despite the production of thousands of text messages by Plaintiffs? mother (which Plaintiff confirmed she had sent to her for safekeeping) and alleged inconsistent testimony from the Plaintiff, the District Court Judge overruling Defendants? objections acknowledged the need for caution in allowing such inspections (including by citing the 2006 Advisory Committee Notes to Fed. R. Civ. P. 34) absent evidence of a responding party?s failure as to its discovery obligations or a ?substantiated connection? between the at-issue device and the claims of the case and concluded that neither had been established in the present case

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, text messages

Hausman v. Holland Amer. Line – USA, No. 13cv00937 BJR, 2016 WL 11234152

Dec 01 2015

Key Insight: Where Plaintiff sought to shift the costs of ?preparing emails for production? (estimated to be $16,325), the court reasoned that Plaintiff assumed the responsibility for producing relevant documents by initiating the litigation, that cost shifting is ?appropriate ?only when electronic data is relatively inaccessible?? (citing Zubulake v. Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003)), that ?[d]ata may be described as ?inaccessible? due to an undue cost or burden associated with accessing the data,? and concluded that the ?emails in this case [were] readily available? and that the high costs of production were not associated with ?accessing or delivering the emails? but rather with counsel?s review for privilege which was more like attorney?s fees and thus the court denied the motion

Nature of Case: Personal Injury

Electronic Data Involved: Emails

In re Blue Cross Blue Shield Antitrust Litig., No. 2:13-CV-20000-RDP, 2015 WL 10891632 (N.D. Ala. Nov. 4, 2015)

Dec 01 2015

Key Insight: Court held that ?litigation/preservation holds and memoranda (at least in this case) issued by a corporate party to its employees for purpose of giving instruction and direction concerning documents and records to be preserved by those employees, even where that instruction arises from legal advice from counsel, are not shielded by the attorney-client privilege? and ordered production of certain litigation holds, including sections identifying the documents to be preserved, characterizing the litigation holds as ?managerial? and without the protection of attorney-client or work product privileges

Nature of Case: Antitrust

Electronic Data Involved: Litigation holds (i.e., legal holds, record holds)

L-3 Commcn?s Corp. v. Sparton Corp., 313 F.R.D. 661 (M.D. Fla. 2015)

Dec 01 2015

Key Insight: Court addressed topic of key word searching and sustained in part and overruled in part Defendant?s objections to the Magistrate Judge?s order to run all searches proposed by the Plaintiff where certain terms were vague or duplicative; court laid out framework for resolving disputes regarding search terms deemed overly burdensome, including a requirement that the parties confer in good faith before coming to the court

Nature of Case: Claims alleging defect in m

Electronic Data Involved: ESI (search terms at issue)

Archive - December 1, 2015