Archive - 2016

1
David Mizer Enters. v. Nextar Broad., Inc. (Central District of Illinois, 2016)
2
Statements of Information Withheld Comply with Amended Rule 34, Motion to Compel Denied
3
US v. Brown (United States Court of Appeals 3rd Circuit, 2016)
4
Teledyne Technologies, Inc. v. Shekar (N.D. Ill., 2016)
5
Use of Predictive Coding was “Reasonable Inquiry,” Motion to Compel Additional Discovery Denied
6
Stewart v. State of Iowa (Iowa, 2016)
7
Trude et al. v. Glenwood State Bank, et al., Nos. A15-0378, A15-1863, A15-1864 (Minn. App. Aug. 15, 2016)
8
First Niagara Risk Management, Inc. v. Folino, No. 16-1779 (E.D. Pa. Aug. 11, 2016).
9
Blodgett v. Siemens Industry, Inc. (E.D. N.Y., 2016)
10
A Responding Party Cannot be Forced to Use Technology Assisted Review (Predictive Coding)

David Mizer Enters. v. Nextar Broad., Inc. (Central District of Illinois, 2016)

Key Insight: While privilege logs are not explicitly required when claiming privilege, they are the best way to properly assert attorney-client privilege

Nature of Case: Contract dispute

Electronic Data Involved: Electronic documents generally

Keywords: privilege log, website, servers, car,

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Statements of Information Withheld Comply with Amended Rule 34, Motion to Compel Denied

Rowan v. Sunflower Elec. Power Corp., No. 15-cv-9227-JWL-TJJ, 2016 WL 3743102 (D. Kan. July 13, 2016)

In this case, the court addressed, among other things, the sufficiency of Defendant’s objections to Plaintiff’s Requests for Production and in particular its compliance with the new requirements of amended Fed. R. Civ. P. 34, effective as of December 1, 2015. Upon review of the objections and Defendant’s statements of information withheld (as expressed by Defendant’s identification of its search parameters), the court concluded that Defendant’s responses were sufficient and counseled Plaintiff to make additional inquiries in future discovery to the extent he desired additional information.

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Use of Predictive Coding was “Reasonable Inquiry,” Motion to Compel Additional Discovery Denied

Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, No. 2685-11, 8393-12, 2016 WL 4204067 (T.C. July 13, 2016)

In September 2014, the court approved Petitioners’ use of predictive coding to identify potentially responsive and privileged data contained on two backup tapes, despite Respondent’s objection that the technology was “unproven.” (Read a summary of that opinion here.)  At that time, the court indicated that Respondent could move to compel additional discovery in the event he believed that Petitioners’ response was insufficient.   Accordingly, after Petitioners denied Respondent’s request for production of additional documents containing certain specified search hits, Respondent moved to compel.  Concluding that Petitioners’ reliance on predictive coding satisfied the requirement for a “reasonable inquiry,” the court denied the motion.

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Trude et al. v. Glenwood State Bank, et al., Nos. A15-0378, A15-1863, A15-1864 (Minn. App. Aug. 15, 2016)

Key Insight: Plaintiff failed to respond to discovery requests. Plaintiff also used data wiping software hours before turning computer over for forensic examination. Defendant granted default judgment.

Nature of Case: Repossession/Ownership

Electronic Data Involved: Files on Computer

Keywords: default judgment, contempt, data wipe

First Niagara Risk Management, Inc. v. Folino, No. 16-1779 (E.D. Pa. Aug. 11, 2016).

Key Insight: Responding party’s ability to choose search methods is not above rule of proportionality.

Nature of Case: Breach of Contract/Breach of Fiduciary Duty Action

Electronic Data Involved: Personal and business electronic devices

Keywords: “search criteria” “access[ability]” “uncovered evidence” “limit[ing] searches” “shielding” “Sedona”

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A Responding Party Cannot be Forced to Use Technology Assisted Review (Predictive Coding)

Hyles v. New York City, 10 Civ. 3119 (AT)(AJP) (S.D.N.Y. Aug. 1, 2016)

In this case, the court addressed the question of whether the City could be “forced” to use technology assisted review (predictive coding) to identify discoverable information when the City itself preferred to use keyword searching. “The short answer [was] a decisive ‘NO.’”

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