December 2017 – Page 3 – Electronic Discovery Law

TetraVue, Inc. v. St. Paul Fire & Marine Ins. Co., No. 14cv2021-W (BLM), 2017 WL 1008788 (S.D. Cal. Mar. 15, 2017)

Dec 01 2017

Key Insight: Defendant moved to compel Plaintiff to produce additional documents, supplement discovery responses, and remove non-responsive documents from their production. Plaintiff had not been able to obtain the entire underlying action file from former counsel, and argued they do not have actual control over the documents. The court found Plaintiffs did have ?possession, custody or control? of the file under Fed. R. Civ. P. 34 (even though counsel had not been cooperative in turning the materials over) and granted Defendant?s motion to compel production of additional non-privileged and responsive documents. Plaintiffs were ordered to obtain the file and provide supplemental responses to Defendant?s RFPs. Defendant asserted Plaintiff?s previous production was a ?data dump? without an index (and contained numerous non-responsive documents), and did not comply with Fed. R. Civ. P. 34. Plaintiffs contended that Defendant did not request a specific format and that they complied with the discovery order and produced their ESI in a proper format (PDF). Plaintiffs also claimed that Defendant?s request to have Plaintiff organize their production based on RFPs would be disproportionate – the production was in date order, allowing Defendant to ?organize, index and search the data at a low cost and with little effort.? The court agreed, finding the production adequate and cited the advisory committee?s notes for Fed. R. Civ. P. 34 (?contemplated that the parties requesting ESI would be able to organize it themselves?). Finally, the court denied Defendant?s motion for supplemented interrogatory responses, finding the Plaintiffs? responses adequate (the burden of finding the answer would be ?substantially the same for either party?).

Electronic Data Involved: ESI

Duffy v. Lawrence Mem?l Hosp., No. 2:14-v-2256-SAC-TJJ, 2017 WL 1277808 (D. Kan. Mar. 31, 2017)

Dec 01 2017

Key Insight: Despite previously ordering production of ESI, court considered motion for protective order by defendant after the ?enormity of the task became apparent? and granted the motion in light of defendant?s presentation of evidence showing that responding to the at-issue requests would take 8,982 hours of work at a cost of $230,000, if accomplished by contract staff; court indicated that it found ?merit? in Defendant?s proposal to provide a random sample of the at-issue information ?from a standpoint of accuracy,? reasoning that ?human error would be a realistic factor? if Defendant were to employ contract workers to conduct a manual review of all of the records under time constraints

Electronic Data Involved: Electronic hospital records

Kirk v. Invesco, Ltd., No. H-15-833, 2017 WL 1078763 (S.D. Tex. Mar. 22, 2017)

Dec 01 2017

Key Insight: Court sustained objection to award of taxable costs related to vendor?s work to provide Plaintiff with an image of Plaintiff?s work computer

Electronic Data Involved: Taxable costs

Houston v. Coveny, No. 14-cv-6609, 2017 WL 972124 (W.D.N.Y. Mar. 13, 2017)

Dec 01 2017

Key Insight: Court granted motion for preservation order as to relevant audio and video recordings reasoning that a court ?may grant a preservation order if a party can demonstrate that the evidence is in some danger of being destroyed absent court intervention? and that in light of the Department of Corrections and Community Supervision retention policy such an order was appropriate to ensure preservation through the pendency of the case

Electronic Data Involved: Audio and video recordings

Am. Auto. Ins. Co. v. Hawaii Nut & Bolt, Inc., No. 15-00245 ACK-KSC, 2017 WL 80248 (D. Hawai?I Jan. 9, 2017)

Dec 01 2017

Key Insight: Court reserved ruling on request for re-production of ESI where parties were ordered to confer, or, more specifically, to ?put their respective IT representative sin contact to see if an understanding can be reached about the format in which the ESI can be produced, as well as the related metadata (if any such metadata exists).?; in its analysis, court stated: ?ESI must be produced in the form in which it is maintained in the ordinary course of business, and if this includes metadata, the metadata must also be provided to Safeway.?

Electronic Data Involved: ESI, metadata

Singh v. Hancock Nat. Res. Grp., Inc., No. 1:15-cv-01435-LJO-JLT, 2017 WL 710571 (E.D. Cal. Feb. 22, 2017)

Dec 01 2017

Key Insight: Court recommended terminating sanctions for Plaintiffs? discovery violations, including failing to produce documents with metadata, as ordered, and failing to provide an explanation; failing to produce other documents as ordered, including a more legible version of a spreadsheet that Plaintiffs created; and falsifying discovery, but declined to recommend additional monetary sanctions

Electronic Data Involved: ESI

Air Prods. & Chems., Inc v. Wiesemann, No. 14-1425-SLR, 2017 WL 758417 (D. Del. Feb. 2, 2017)

Dec 01 2017

Key Insight: Court denied motion for spoliation sanctions where Defendants ?failed to clear the threshold issue of showing that relevant evidence was lost or destroyed? or, in the case of the alleged spoliation of ESI of one former employee, where defendants failed to show that the emails could not be replaced through additional discovery in light of the production of some of the employee?s emails from other computers

Electronic Data Involved: ESI

Wilson v. Washington, No. C16-5366 BHS, 2017 WL 518615 (W.D. Wash. Feb. 8, 2017)

Dec 01 2017

Key Insight: Addressing Plaintiff?s concerns regarding Defendants production, characterized by the court as ?thousands of pages of unorganized documents,? the court reasoned that ?Rule 33(d) does not supplant a party?s duty to adequately label and identify responsive documents under Rule 34,? that courts have recognized that production of documents as kept in the usual course of business ?may require the producing party to include different identifying information according to the type of document or file produced,? and that ?the most recent? court decisions have held that both Rule 34(b)(2)(E)(i) and (ii) apply to the production of ESI and concluded that Defendant?s response fell short of its duties under 34(b)(2)(E) and 33(d)(1) and stated that ?[s]ome form of further organization or specification is required to signify that they have provided ?rationally organized productions??

Electronic Data Involved: Unorganized ESI

Brown v. Ferguson, No. 4:15CV00831 ERW, 2017 WL 386544 (E.D. Mo. Jan. 27, 2017)

Dec 01 2017

Key Insight: Court clarified discoverability of relevant social media content but indicated that disclosure of passwords was not required and not permitted by the Federal Rules of Civil Procedure

Electronic Data Involved: Social Media/social network (Facebook, etc.)

View Case Opinion

Camicia v. Cooley, No. 74048-2-I, 2017 WL 679988 (Wash. Ct. App. Feb. 21, 2017)

Dec 01 2017

Key Insight: Where Defendant destroyed potentially relevant tort-claim records pursuant to its record retention schedule during pending litigation among other discovery abuses and where the trial court therefore ordered monetary sanctions for the discovery violations and indicated that it would consider a spoliation instruction, the appellate court concluded that the trial court?s record did not support a finding that ?the City destroyed the evidence in bad faith, knew that the evidence was important to the pending litigation, or had the duty to preserve the evidence? and thus, it was not clear that spoliation had occurred; error was harmless where $10,000 fine was not based on a finding of spoliation

Nature of Case: Tort (bicycling accident)

Archive - December 2017