December 1, 2016 – Page 10 – Electronic Discovery Law

Deere & Co. v. Duroc LLC, 650 Fed. Appx. 779 (Fed. Cir. 2016)

Dec 01 2016

Key Insight: Where parties entered into an agreement that set forth parameters for production of ESI, District Court held that ?when the costs of complying with the agreement are within the obligations of the Agreement and reasonably incurred in complying with the Agreement, they are recoverable? and circuit court, on appeal, concluded that District Court acted within its discretion: ?The district court held that the e-discovery costs incurred in procedures required by the ESI Agreement are within the scope of ? 1920. Relying on the Agreement, the district court did not separate the activities required by the e-discovery Agreement. We conclude that the district acted within its discretion.?

Nature of Case: Patent infringement

Electronic Data Involved: Taxable Costs ( 28 U.S.C. ? 1920)

Family Wireless #1, LLC v. Auto. Techs., Inc., No. 3:15CV01310(JCH), 2016 WL 2930887 (D. Conn. May 19, 2016)

Dec 01 2016

Key Insight: Court granted in part Plaintiffs’ motion to compel discovery from additional custodians (the parties had previously agreed to seven in total) where Plaintiff showed good cause to compel such searching upon establishing two custodians? involvement with a relevant committee and another?s regular contact with the franchisees and the issues in this case and where the court reasoned (among other things) that: ?The mere fact that many documents have already been produced is not sufficient to establish that there are no other relevant materials to be found.? and that ?It is reasonable to believe that discussions and transmissions of potentially relevant information could transpire below the highest echelon of management; indeed, as defendant acknowledged, some of the lower-level employees had direct communication with the franchisees regarding commissions.?

Nature of Case: Breach of contract, misrepresentation, unjust enrichment, and unfair trade practices

Electronic Data Involved: ESI from additional custodians (“plaintiffs argue that the custodians should not be limited to decision-makers” and that lower level employees may also have relevant information)

E.E.O.C. v. The Amer. Coal Co., No. 3:15-cv-01293-SMY-PMF, 2016 WL 1639682 (S.D. Ill. Apr. 26, 2016)

Dec 01 2016

Key Insight: Where non-party argued that subpoena exceeded scope of EEOC?s authority because it sought information irrelevant to the claim of sex discrimination (e.g., information re: race) and was unduly burdensome because it would take the single HR Officer approximately 500 hours to respond and take her away from other important work for the corporation, the court found that the information sought was relevant (reasoning that the standard of relevance is broad and ?generous? and that the information could ?shed light on possible discriminatory hiring practices and thereby, lead to the discovery of admissible evidence?) and that the burden did not outweigh the benefit, reasoning that ?[[o]ther than the fact that its employment records are kept in paper format in southern Illinois, [the non-party] has not provided any reason as to why its corporate human resources department cannot assist in responding to the subpoena or why it could not hire temporary staff to assist.?

Nature of Case: Employment litigation: sex discrimination

Electronic Data Involved: Hard copy

T-Mobile USA, Inc. v. Huawei Device USA, Inc., No. C14-01351 RAJ, 2016 WL 1597102 (W.D. Wash. Apr. 20, 2016)

Dec 01 2016

Key Insight: Motion for protective order granted where requested information was not relevant to claims or defenses plead and thus was outside of the scope of discovery

Nature of Case: Misappropriation of Trade Secrets

Electronic Data Involved: ESI, database

Vaigasi v. Solow Mgmt. Corp., No. 11 Civ. 5088 (RMB)(HBP), 2016 WL 616386 (S.D.N.Y. Feb. 2, 2016)

Dec 01 2016

Key Insight: Court denied Plaintiff?s motion to compel a response to his second set of document requests (consisting of 168 pages and 1,027 individual requests), noting several procedural and ?substantive defects,? including that Plaintiff?s requests were ?grossly irrelevant? and sought ?numerous documents that ha[d] nothing to do with the claims or defenses? and disproportional to the case (citing Defendant?s prior production of approximately 1,000 pages of documents), even despite the ?strong federal policy against employment discrimination?; addressing defendant?s motion for sanctions, court concluded that ?Plaintiff?s Second Document Request was unquestionably prepared and served in bad faith and in a conscious effort to impose an unreasonable burden on defendants? and cited Plaintiff?s numerous document requests, violation of two prior discovery orders and other ?obstructive behavior? and granted a protective order relieving defendant of the obligation to respond and ordered that Plaintiff was prohibited from offering or using any document not already produced, that Plaintiff must submit to a medical exam (as was previously ordered) or suffer dismissal of his case, and that Plaintiff would be liable for the attorneys fees incurred by Defendants in addressing the motions resolved in this opinion

Nature of Case: Employment litigation (Title VII, Age Discrimination, ADA, etc.)

Electronic Data Involved: ESI

Verint Sys. Inc. v. Red Box Recorders Ltd., 14-cv-5403, 2016 WL 1644373 (S.D.N.Y. Apr. 25, 2016)

Dec 01 2016

Key Insight: Court affirmed order of Magistrate Judge declining request for additional discovery based on Defendant?s alleged violation of the parties? protocol for discovery. Where parties agreed that each would disclose the eight custodians ?most likely? to have discoverable ESI, Plaintiff claimed that Defendant failed to name its VP of North American sales in a ?systematic and pervasive effort? to prevent the disclosure of discoverable documents. Magistrate Judge reasoned that Plaintiff needed to explain why its proposed custodians were better than those identified by Defendant and permitted Plaintiff to conduct a test search at its expense, which uncovered few additional documents. Magistrate Judge held that absent a showing that Defendant violated the protocol, it should be enforced, noting that ?for good or ill? Plaintiff had agreed to limit the searches. Affirming the order, the District Court noted that the protocol required the identification of custodians ?most likely? to have discoverable information (describing the ?before-the-fact perspective?) and not the custodians that IN FACT had the most discoverable ESI and also that Plaintiff had failed to take up the Magistrate Judge?s invitation to provide additional search terms for the test, which may have identified additional information to bolster their position

Nature of Case: Patent Infringement

Electronic Data Involved: ESI from 8 custodians “most likely” to have responsive information

Venator v. Interstate Res., Inc., No. CV 415-086, 2016 WL 1574090 (S.D. Ga. Apr. 15, 2016)

Dec 01 2016

Key Insight: Court found defense counsel had committed two violations of Rule 26(g)?s obligation to conduct a reasonable inquiry where counsel simply provided discovery requests to Defendant?s HR manager who conducted an independent, but ultimately inadequate, search for responsive information and failed to properly supervise the search, involve the IT Department (a best practice, according to the court), or follow up to ensure the search was adequate. Discussing the lack of a ?reasonable inquiry,? the court instructed that a non-lawyer will typically require more guidance than merely providing the requests at-issue and noted that ?attorneys have a post-investigation obligation to make sure all responsive information is provided.? Court ordered counsel to pay the reasonable expenses and fees associated with the motion for sanctions and for Defendant to pay $1000 but declined further sanctions where Defendant supplemented its response to discovery when additional responsive information was located.

Nature of Case: Claims arising from an industrial accident

Electronic Data Involved: Emails, ESI

Thomas v. Butkiewicus, No. 3:13-CV-747 (JCH), 2016 WL 1718368 (D. Conn. Apr. 29, 2016)

Dec 01 2016

Key Insight: Addressing question of spoliation related to surveillance video of prison assaults, court concluded that ?traditional? spoliation analysis (as opposed to analysis pursuant to newly amended FRCP 37(e))

Nature of Case: Claims arising from assault in prison

Electronic Data Involved: Surveillance video

O?Berry v. Turner, Nos. 7-15-CV-00064-HL, 7:15:CV-00075-HL, 2016 WL 1700403 (M.D. Ga. Apr. 27, 2016)

Dec 01 2016

Key Insight: Where custodian printed single paper copy of relevant driver?s log and PeopleNet data to be maintained in the usual course of business, did nothing more upon receipt of a request for preservation and ultimately misplaced the envelope in which the information was maintained despite claiming to have done ?everything in his power to preserve evidence,? the court found that Defendant filed to take reasonable steps to preserve the data and acted with the intent to deprive Plaintiffs of the information in litigation, reasoning that it was ?simply irresponsible? to print a single paper copy for preservation and noting Defendant?s lack of a document preservation policy and the failure of counsel to contact the at-issue custodian for approximately two and one half years following receipt of the request to preserve, among other things: ?All of these facts, when considered together, lead the Court to conclude that the loss of the at-issue ESI was beyond the result of mere negligence. Such irresponsible and shiftless behavior can only lead to one conclusion?that ADM and Archer Daniel Midlands Company acted with the intent to deprive ??

Nature of Case: Automobile accident

Electronic Data Involved: Driver’s log, PeopleNet data

Meyers v. Nicolet Rest. Of De Pere, LLC, No. 15-C-444, 2016 WL 1275046 (E.D. Wis. Apr. 1, 2016)

Dec 01 2016

Key Insight: Court declined to compel production of Plaintiff?s computer or to allow a third party to conduct an examination where Defendant?s request was ?not calculated to produce information relevant to Defendant?s arguments or the proportional needs of the case? and where the court reasoned that even if Defendant found what it was looking for, it would not change its legal position

Nature of Case: Fair and Accurate Credit Transactions Act

Electronic Data Involved: Computer (for inspection)

Archive - December 1, 2016