Key Insight: 4.2 million pages of keyword “”hit”” documents produced without review, but designated “”Attorney Eyes Only.
Nature of Case: unfair competition
Electronic Data Involved: 4.2 million pages of keyword “”hit”” documents
Key Insight: Spoliation sanctions for failing to preserve the webpages in which the images were published.
Nature of Case: Intellectual Property infringement
Electronic Data Involved: Images, Webpages
Key Insight: Where defendant sought to examine plaintiff?s smartphone itself for the purpose of obtaining a log of blocked calls arguing that ?plaintiff is not entitled to recovery for any blocked calls,? the court noted that defendant had failed to provide legal basis for this position and that ?[T]here is no routine right of direct access to a party?s electronic information system. … absent a factual finding of some non-compliance with [the] discovery rules, direct access is unwarranted.? The court further noted that defendant made no effort to comply with the requirement for a proposal for the protection of privacy rights, the protection of privileged information, and the separation of irrelevant information during inspection. On this basis, the court found direct access to the cell phone unwarranted and denied defendant?s motion to compel.
Nature of Case: Telephone Consumer Protection Act
Electronic Data Involved: Cell Phone Call Block Records
Key Insight: Where event data recorder information saved on a laptop computer (1) was transferred to a central repository (?the Vault?) without validation and later found to be unreadable and (2) the original files were destroyed, without validating the files in the Vault, with the laptop after a hardware malfunction, court granted plaintiff?s motion for an adverse inference but declined to strike defendants? answer. Court found defendants? failure to review and validate file uploads to the central repository for over 4 years after the accident ?unfathomable? and concluded that ?their failure to access the files uploaded to the Vault for the four-year period before 2010 conflicted with their duties under the Federal Rules of Civil Procedure.? Court found defendants? actions unreasonable and without credible explanation and therefore sufficient to support a finding that defendants acted with the intent to deprive plaintiff of evidence.
Nature of Case: Personal injury (railway accident)
Electronic Data Involved: Event Data Recorder Files
Key Insight: Where Defendant contended there was only one way to search the at-issue database but failed to explain why and where Plaintiffs noted Defendant?s failure to offer reasons why optical character recognition could not be used on the database, the court ?agree[d],? reasoning that parties might otherwise be encouraged to ?maintain inaccessible databases to limit their discovery obligations? and noted that Defendant may need to consult a third party vendor if necessary and ordered the parties to meet and confer regarding the issue
Nature of Case: Asbestos exposure liability
Electronic Data Involved: Database
Key Insight: Court found Defendant?s failure to preserve a vehicle?s Electronic Control Module (ECM) data after it was aware of a severe accident, contrary to the Defendant?s ?normal practice,? constituted spoliation. Court denied Plaintiffs? motion for a negative inference under Fed. R. Civ. P. 37 (e) as the Plaintiffs were able to reconstruct the accident and vehicle?s speed from other sources and that the failure to preserve was not intentional based on the defendants? plausible, though erroneous, understanding that the data was overridden by the removal of the damaged vehicle from the scene. Court found a jury instruction that ECM data was not preserved and allowing both parties to present evidence and argument at trial regarding defendant?s failure to preserve the data to be a sufficiently effective sanction.
Nature of Case: Personal injury (auto accident)
Electronic Data Involved: Electronic Control Module (ECM)
Key Insight: Plaintiff?s spouse was killed in a tractor-trailer accident when he collided with another tractor-trailer driven by Defendant?s employee. Plaintiff claimed Defendant destroyed or failed to preserve relevant documents in anticipation of litigation and requested sanctions in the form of an adverse inference instruction to the jury. The Court found Plaintiffs did not establish Defendant intentionally destroyed evidence with a desire to suppress the truth. Some of the information did not exist, some was purged per standard practice and much of the material requested by Plaintiffs was provided to them from other sources. The Court denied Plaintiff?s motion with respect to its claim for spoliation. Plaintiffs also requested attorney?s fees and costs as a sanction for Defendant?s failure to produce certain documents. Defendants inadvertently omitted its 2012 income statement but produced those from four other years. The Court held that sanctions were not warranted.
Nature of Case: Tort (Tractor-trailer accident)
Electronic Data Involved: ESI including Driver logs, Qualcomm data, PeopleNet server data
Key Insight: Court denied Defendant?s request for e-discovery costs. Defendant?s vendor provided services to create optical character recognition (?OCR?) image and text files for Defendant?s productions. The Court concluded that the costs of creating electronic copies of documents are recoverable but the costs of creating a dynamic, indexed and searchable database that allows counsel to search for and within the documents are not recoverable. The Court denied Defendant?s recovery of costs for the technical services provided by their e-discovery vendor.
Nature of Case: Taxable costs
Electronic Data Involved: ESI
Key Insight: Plaintiff filed motion to compel the production of all computers or a forensic image of such computers of three former employees currently employed by Defendant. Plaintiff accused one employee, an informational technology specialist, of transferring files containing trade secrets and proprietary information to an external hard drive and later to his laptop furnished by Defendant. Plaintiff also sought the production of a forensic image of Defendant?s server. Defendant argued that direct investigation of these devices was too broad a scope and should be limited by an ?electronically stored information protocol.? The Court agreed that Plaintiff?s request was overly broad and disproportional and ordered both parties to submit a draft ESI protocol using key word searches so as to control costs and to keep discovery proportional to the needs of the case.
Nature of Case: Violation of non-compete agreement, Uniform Trade Secrets Act
Electronic Data Involved: ESI
Key Insight: Court agreed with recommendation of magistrate judge and held costs incurred by a non-party for compliance with an order compelling production are reimbursable. The magistrate judge ordered the Non-Party to submit a cost estimate for reviewing the documents, preparing a privilege log and producing the non-privileged documents. The cost estimate submitted was over $120,000. Defendant then presented a pared down document request and the magistrate judge issued a Modified Subpoena. The Court accepted the magistrate judge?s recommendation and ordered Defendant to pay $14,174.32 for the costs to Non-Party of complying with the Modified Subpoena stating that Defendant ?was the recipient of the fruits of Non-Party[?s] labor.? The Court also agreed with the magistrate judge that non-parties are not protected by the work product doctrine.
Nature of Case: Non-party compensation for document production
Electronic Data Involved: emails and non-electronic documents
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