Key Insight: whether defendant is entitled to $18.5 million in attorney’s fees and non-taxable costs.
Nature of Case: Antitrust,
Electronic Data Involved: Documents
Keywords: Attorney’s fees, Non-taxable costs
Mirmina v. Genpact LLC, No. 3:16CV00614, 2017 WL 3189027 (D. Conn. July 27, 2017)
In this case, Plaintiff sought to compel Defendant to conduct an additional search for ESI. Plaintiff asserted that he was “concerned” that responsive communications were withheld from production and argued “in essence, that defendant’s search for ESI was insufficient because counsel relied upon an employee directly involved in the underlying claims of the suit to search her own emails for responsive documents.” Defendant opposed the motion and argued that Plaintiff’s concerns were “unfounded because the search for responsive records was coordinated and overseen by counsel.” In support of that position, Defendant’s in-house counsel provided an affidavit outlining the approach:
Key Insight: Severe sanctions require intent and actual loss of evidence,
Nature of Case: Antitrust
Electronic Data Involved: E-mails
Keywords: email jail, litigation hold, transport dumpster,
Key Insight: Missing video wouln’t change outcome of summary judgment, so no sanctions needed under 37(e)
Nature of Case: prisoner civil rights
Electronic Data Involved: video
Keywords: prisoner video, missing ESI summary judgment
Key Insight: if use of publicly available information provided by a source for profit can be restricted by the source of the information
Nature of Case: violation of computer fraud and abuse act.
Electronic Data Involved: publicly available information available on websites like linkedin
Keywords: public interest, publicly available data, preliminary injunction
Key Insight: work product protection does not apply to investigation or handling of underlying claim in a bad faith case.
Nature of Case: bad faith insurance claim
Electronic Data Involved: Insurance claim file including work product and possibly privileged documents
Keywords: work product, underlying claim, investigation, bad faith, privilege log
Key Insight: Failure to fully respond to discovery requests, inability to ensure the production was responsive to discovery requests
Nature of Case: wage-and-hour
Electronic Data Involved: electronic records
Keywords: false representation, attorneys’ fees, egregious
Key Insight: Source code
Nature of Case: False and Misleading representation in Advertising, Unfair competition at Common Law, Violation Of the New Jersey Consumer Fraud Act
Electronic Data Involved: Motion to Compel the Production of Source code
Keywords: Production of Cource Code
Key Insight: The court allowed a party to use a rolling basis ESI, and ruled that with the assistance of TAR, a few thousand documents could be reviewed in the next few weeks.
Nature of Case: Workplace discrimination (age)
Electronic Data Involved: Business documents/files
Keywords: Predictive coding, TAR, Technology assisted review,
Irth Sols. LLC v. Windstream Commc’ns LLC, No. 2:16-CV-219, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017)
In this case, despite the existence of a clawback agreement (not an order) indicating that “[i]nadvertent production of privileged documents does not operate as a waiver of that privilege,” the court found that privilege was waived by the inadvertent but “completely reckless” production of privileged materials … twice. In so concluding, the court rejected the notion that a clawback agreement always protects against waiver, regardless of its terms, and instead indicated its support for courts that have precluded protection from a clawback agreement when the disclosure was “completely reckless” and for a framework that allows a court to rely on Fed. R. Evid. 502(b) when a clawback agreement fails to provide sufficiently concrete terms.
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