2016 – Page 13 – Electronic Discovery Law

Procaps S.A. v. Patheon, Inc., NO. 12-24356-CIV-GOODMAN, 2016 WL 411017 (S.D. Fla. Feb. 2, 2016)

Dec 01 2016

Key Insight: Addressing taxable costs for electronic discovery, the court acknowledged the lack of any ?on-point Eleventh Circuit law? and deemed CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320, 1325 (Fed. Cir. 2013) ?to be the most persuasive circuit court opinion on the issue?; where even CBT Flint Partners LLC did not address costs related to OCR, however, the court indicated it would ?follow the fundamental principle that the costs statute is ?modest? and ?narrow? and ?limited to minor, incidental expenses? and excluded OCR costs from Defendant?s costs request

Nature of Case: Antitrust

Electronic Data Involved: Taxable costs for electronic discovery

Mathur v. Hospitality Props. Trust, No. 13-cv-7206, 2016 WL 520999 (N.D. Ill. Feb. 10, 2016)

Dec 01 2016

Key Insight: Addressing Plaintiff?s claim that defendant?s duty to preserve surveillance footage was triggered by the fact that it knew Defendant was robbed in its hotel, that the police were involved, and that both the police and Defendants ?were using the footage to investigate the incident? (perhaps evidenced by the preservation of different footage at the request of police), the court reasoned that ??mere knowledge of the accident and the possible causes of the accident? is not enough to create a duty to preserve evidence? and found that defendant?s spoliation claim failed

Nature of Case: Claims arising from robbery of hotel guest

Electronic Data Involved: Surveillance footage

Benefield v. MStreet Entm?t, LLC, No. 3:13-cv-1000, 2016 WL 374568 (M.D. Tenn. Feb. 1, 2016)

Dec 01 2016

Key Insight: Where, despite a request from Plaintiff?s counsel to preserve all communications between plaintiff and defendants or their employees AND Defendants? OWN REQUEST that Plaintiff preserve information from her cellular phones, Defendants failed to preserve potentially relevant text messages, the court rejected defendants? arguments that ?due to the nature of text message communications and the cellular devices they are stored on?a requirement to preserve text messages from private cellular phones is unduly burdensome and an invasion of privacy? and found that the messages should have been preserved and indicated that a ?spoliation instruction to the jury? would be given at trial but declined to preclude defendants? reliance on plaintiff?s text messages at trial or to order defendants to pay fees and cost associated with the extraction of plaintiffs? text messages from her own phone

Nature of Case: Employment

Electronic Data Involved: Text messages

McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., No. 3:14-cv-2498-B, 2016 WL 98603 (N.D. Tex. Jan. 8, 2016)

Dec 01 2016

Key Insight: In this case, the court addressed Plaintiff?s motion to compel ?the production and organization of certain documents and metadata? and considered the applicability of Fed. R. Civ. P. 34(b)(2)(E)(i) and (ii) to the production of electronically stored information. Ultimately, ?[t]he Court [found] persuasive the analysis that, where Rule 34(b)(2)(E)(i) addresses the organization of a production and Rule 34(b)(2)(E)(ii) specifically addresses the form for producing ESI (where form of production is inherently not an issue with hard-copy documents), and in light of the purposes of the 2006 amendments to Rule 34 and of Rule 34(b)(2)(E)(i)?s requirements, Rules 34(b)(2)(E)(i) and 34(b)(2)(E)(ii) should both apply to ESI productions.?

Nature of Case: Breach of commercial lease agreement

Electronic Data Involved: ESI

Stinson v. City of New York, No. 10 Civ. 4228(RWS), 2016 WL 54684 (S.D.N.Y. Jan. 5, 2016)

Dec 01 2016

Key Insight: Court found Defendants? discovery failures, including failing to implement a litigation hold for three years, failing to adequately communicate the hold, and failure to ensure compliance with the litigation hold were grossly negligent and imposed a permissive adverse inference as a sanction; court?s analysis included the admonition that ?the reasonableness or unreasonableness of one party?s demands does not determine the scope of the other party?s obligation to preserve documents?

Nature of Case: Class action civil rights

Electronic Data Involved: ESI: email, text messages, har copy

Hausman v. Holland Am. Line-U.S.A., No. CV13-0937 BJR, 2015 WL 51273 (W.D. Wash. Jan. 5, 2016)

Dec 01 2016

Key Insight: Judgment vacated and new trial ordered for deliberate spoliation of relevant emails revealed by credible witness after original trial

Nature of Case: Personal injury

Electronic Data Involved: Emails

McQueen v. Aramark Corp. – 201611 (D. Utah, 2016)

Nov 29 2016

Key Insight: Sanctions imposed after defendant’s failure to preserve relevant ESI after receiving a preservation letter from plaintiff.

Nature of Case: Wrongful death.

Electronic Data Involved: ESI work orders and related paper records.

Keywords: Defendant acted with gross negligence, but without intent to deprive the plaintiff of the information’s use in the litigation.

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Court Finds Foreign Discovery “Marginally Relevant” and “Not Proportional,” Declines to Compel Search

Nov 21 2016

In re Bard IVC Filters Prod. Liab. Litig., —F.R.D.—, 2016 WL 4943393 (D. Ariz. Sept. 16, 2016)

In this case, the parties disagreed on the discoverability of communications between Defendants’ foreign subsidiaries and divisions and foreign regulators regarding the filters at issue in the case. Following analysis of the effects of the December 1, 2015 amendments on Fed. R. Civ. P. 26(b)(1) and of the specific facts of the case, US District Court Judge David Campbell—Chair of the Committee on Rules of Practice and Procedure—determined that the at-issue communications were “only marginally relevant” and was persuaded that “the burden of [the] foreign discovery would be substantial.” Thus, the court concluded that Defendants were not required to search their foreign entities for communications with foreign regulators.

Reed v. Kindercare Learning Centers, et al. (W.D. Wash., 2016)

Nov 17 2016

Key Insight: imperfect and slow, gradual production not sanctioned

Nature of Case: disability discrimination, failure to accommodate, retaliation, ? 1983 violations, and wrongful termination in violation of public policy

Electronic Data Involved: emails

Keywords: flawed retention policies,

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Venturedyne v. Carbonyx (ND Ind., 2016)

Nov 15 2016

Key Insight: Specific metrics needed to object to the burden of a key-word search. Defendant objected to document requests on relevancy grounds.

Nature of Case: Contract breach.

Electronic Data Involved: Key-word search of ESI.

Keywords: Cooperation and the negotiation of keywords. Transparency in all aspects of preservation and production of ESI.

View Case Opinion

Archive - 2016