December 1, 2015 – Page 7 – Electronic Discovery Law

Weidenhamer v. Expedia, Inc., No. C14-1239RAJ, 2015 WL 7158212 (W.D. Wash. Nov. 13, 2015)

Dec 01 2015

Key Insight: Court denied motion to compel Defendant to search for documents from non-U.S. points of sale where the court found such documents would be of ?marginal relevance at best? and that the burden and expense of production outweighed the benefit, noting that such production would ?vastly expand? an already voluminous production, would entail additional translation costs, and would ?potentially require the involvement of additional entities or foreign law??; court also declined to compel Defendant to conduct searches of Account Representatives for 170 different airlines where Plaintiff failed to establish that the expanded search would reveal additional relevant information and noting that the productions of third party air carriers had not revealed any ?glaring deficiencies? in Defendant?s production

Nature of Case: Class action

Electronic Data Involved: ESI

Bruno v. Bozutto?s, Inc., No. 3:09-cv-874, 2015 WL 7294464 (M.D. Pa. Nov. 19, 2015)

Dec 01 2015

Key Insight: Where Plaintiff? spoliation of financial information forced experts to rely upon ?unverified secondhand data,? court found the reports ?exhibit[ed] neither sufficient reliability nor the requisite fit required for admission in federal practice? and granted Defendant?s motion to exclude

Nature of Case: Breach of contract, promissory estoppel

Electronic Data Involved: Financial information (ESI, hard copy)

SFP Works LLC v. Buffalo Armory LLC, No. 14-13575, 2015 WL 7294580 (E.D. Mich. Nov. 19, 2015)

Dec 01 2015

Key Insight: Where Plaintiff alleged it could not access the data produced by defendant?even with the use of specialized software provided by Defendant and the assistance of a third party vendor?and refused the options provided by defendant insisting instead that defendant must re-load the date to ensure it was not corrupted, the court noted Plaintiff?s failure to timely seek a solution to the discovery problems or to mitigate the difficulties by pursuing any of the offered remedial measures and denied the motion to compel access to the at-issue information

Nature of Case: Patent infringement

Electronic Data Involved: ESI (“operational data”)

Strauch v. Computer Sciences Corp., No. 3:14 CV 956 (JBA), 2015 WL 7458506 (D. conn. Nov. 24, 2015)

Dec 01 2015

Key Insight: Court addressed parties? disagreement regarding a search and production protocol and considering three options presented by Plaintiff (1) ?sampling and iterative refinement?; 2) a quick peek at all documents to designate a limited number for production; or 3) production of all documents with search hits subject to a clawback agreement) and defendant?s resistance based in proportionality, reasoned that ?[g]iven that there are 1,047 opt-in plaintiffs, ?potentially hundreds more as class members? in the four states . . . and a possible verdict in eight or nine digits if plaintiffs are successful, defendant?s proportionality argument is unavailing?; court ordered defendant to search files of 8 custodians using its own proposed terms (thus creating a presumption of relevancy) and further ordered that defendant could remove documents from production ?only if they are clearly and undeniably irrelevant? or privileged

Nature of Case: Class action

Electronic Data Involved: ESi

United States v. GSD Media City, LLC, No. 14-11049, 2015 WL 7744578 (5th Cir. Dec. 1, 2015)

Dec 01 2015

Key Insight: Appellate court found no abuse of discretion for award of conversion and character recognition costs where Defendant attested that the costs were necessarily incurred and did not request all costs related to electronic discovery and where the objecting party failed to itemize which costs it claimed were not permissible or provide an explanation of why they were not covered by the statute

Nature of Case: Qui tam; FCA (costs pursuant to 28 U.S.C. 1920 (4))

Electronic Data Involved: ESI

Wilson v. Conair, No. 1:14-cv-00894-WBS-SAB, 2015 WL 1994270 (E.D. Cal. Apr. 30, 2015)

Dec 01 2015

Key Insight: Although ?[t]he rules do not require a party to produce ESI in the form most helpful to the opposing party[,]? the court ordered Defendant to produce additional discovery in TIFF format and to produce the metadata for all documents already produced (in PDF format)

Nature of Case: Class action

Electronic Data Involved: ESI (.xls, proprietary format)

Parsi v. Daioleslam, 778 F.3d 116 (D.C. Cir. 2015)

Dec 01 2015

Key Insight: Appellate court affirmed in part and reversed in part the District Court?s imposition of monetary sanctions for Plaintiff?s many discovery violations, including repeated violation of the court?s orders resulting in belated production of relevant evidence, and found no abuse of discretion for awarding expenses related to Defendants? third motion to compel Plaintiff?s production of relevant hardware, expenses related to the forensic imaging of Plaintiff?s hard drive, expenses related to the redeposition of Plaintiff?s officers (after delayed production of relevant evidence), and litigation expenses as a sanction for withholding emails

Nature of Case: Defamation

Electronic Data Involved: ESI (calendar items, database contents, other)

Webb v. Ethicon Endo-Surgery, Inc., No. 13-1947(JRT/JJK), 2015 WL 317215 (D. Minn. Jan. 26, 2015)

Dec 01 2015

Key Insight: Court overruled parties’ objections to Magistrate Judge’s order addressing scope of discovery where underlying court properly considered and applied the principle of proportionality; addressing defendant’s alleged costs of production, court reasoned in part that ?The fact that a corporation has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.?

Nature of Case: Products liability

Electronic Data Involved: ESI

A.M.castle & Co. v. Byrne, No. H-13-2960, 2015 WL 4756928 (S.D. Tex. Aug. 12, 2015)

Dec 01 2015

Key Insight: Where Plaintiff sought ?physical access? to Defendant?s electronic devices based on the belief that Plaintiff failed to perform a thorough search, the court overruled objections to denial of the motion where Plaintiff failed to show that Defendant was in possession of any of Plaintiff?s company documents and where Defendant responded adequately to discovery, including hiring an outside party to perform forensic examination of the computers and utilizing hundreds of search terms proposed by the plaintiff

Nature of Case: Breach of employee confidentiality agreement, breach of fiduciary duty, unjust enrichment, tortious interference with contract, tortious interference with prospective economic advantage, and civil conspiracy

Electronic Data Involved: ESI

H.M. Elecs., Inc. v. R.F. Techs., Inc., No. 12cv28840-BAS-MDD, 2015 WL 4714908 (S.D. cal. Aug. 7, 2015)

Dec 01 2015

Key Insight: For multiple discovery violations by Defendant and counsel, including improper certification of discovery responses pursuant to Rule 26(g), failure to issue a litigation hold or appropriately supervise discovery, and intentional deletion of responsive materials and delayed production, the court imposed multiple discovery sanctions, including attorneys? fees and costs, issue sanctions, and an adverse inference; notably, the court indicated sanctions would have been imposed under New Rule 37(e), because the court found that the at-issue ESI was lost with the intent to deprive Plaintiff of the information?s use in the litigation; Update: Compensatory sanctions vacated by District Court upon determination that parties? settlement mooted the issue of compensatory sanctions (—F.Supp.3d—, 2016 WL 1267385 (S.D. Cal. Mar. 15, 2016))

Nature of Case: Trademark infringement, false designation of origin, trade dress infringement, trade libel, unfair competition and interference with prospective economic advantage

Electronic Data Involved: ESI

Archive - December 1, 2015