Key Insight: Court held that ?costs of creating and maintaining an electronic platform for e-Discovery are not recoverable under ? 1920(4).?
Electronic Data Involved: Taxable costs
Key Insight: Court allowed Defendant to recover electronic conversion costs where conversions were undertaken to meet discovery requests of Plaintiff
Nature of Case: Theft of trade secrets
Electronic Data Involved: Taxable costs related to e-Discovery
Key Insight: Court found that the at-issue discovery was not required under Fed. R. Civ. P. 26(b)(1) and declined to compel production of every document ?referring or relating? to Plaintiff?s ?designated Responsible Managing Employee? for all 11 of Plaintiff?s California projects where the court determined that the relevance was minimal, where both parties ?appeared to agree? that the request would require ?a search for every document to or from [the employee]? and Plaintiff alleged that many documents were not electronically searchable, and where the court recognized that ordering such production could cause a ?chilling effect? that may ?discourage [construction] companies from filing a lawsuit merely to avoid the discovery costs?
Electronic Data Involved: ESI and other records “referring or relating” to specified employee
Key Insight: Court declined to find ESI ?not reasonably accessible? because of the alleged cost of production where the case at issue was worth $4.5 million and thus the alleged costs did not appear ?sufficiently disproportionate,? where the defendant did not allege a lack of resources, and where defendant had a ?significant interest? in performing the discovery work in a manner that controlled costs but made two exceptions as to documents that would need to be culled and separately recoded and restored before they could be searched and as to documents that needed to be converted to a searchable format to determine tier potential relevance; court ordered parties to confer re: production protocol and cost shifting
Electronic Data Involved: ESI
Key Insight: Where an initial search of file names on a legacy drive (as opposed to the contents of the drive) did not identify ten responsive documents that were eventually produced after the close of discovery and a mere 7 days prior to trial, the court found that the search was an unreasonable inquiry under Rule 26(g) citing counsel?s failure to guide or monitor the employee conducting the search; the at-issue employee?s lack of experience conducting searches of large document repositories and the failure of counsel to ask the IT department to assist; and the objective unreasonableness of the search in light of the initial failure to search within the contents of the legacy drive and imposed monetary sanctions to address Plaintiff?s increased efforts as a result of the failure to timely produce the documents but reduced the award by 1/3 where Plaintiff would have had to expend some of the at-issue resources regardless and where Plaintiff failed to follow up when the employee who conducted the search indicated he did not know if he had searched within the files themselves
Electronic Data Involved: ESI from legacy drive
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
Key Insight: No sanctions imposed for Defendant?s deletion of Plaintiff?s email in accordance with Defendant?s email retention policy following her termination where Plaintiff?s emails to HR and management ?did not raise ?potential claims? but rather raise Plaintiff?s concerns about workplace gossip and challenging relationships? and where other ?low-level employees? general awareness that Plaintiff was rumored to pursue litigation? did not result in a duty to preserve
Nature of Case: Employment litigation
Electronic Data Involved: Emails of departed/terminated employee
Key Insight: Although the court found that Defendants breached their duty to preserve certain emails by (1) failing to take reasonable steps to preserve Kelley?s emails, (2) misrepresenting the manner in which the data was lost, (3) misrepresenting that the lost data could not be recovered, and (3) using the laptop in May and August, 2015, the court also found the breach was not intentional and that Plaintiff was only ?minimally harmed? and eventually able to obtain the missing information and thus declined to strike Defendants? pleadings but ordered that Defendants should compensate Plaintiff for the reasonable attorneys? fees and expenses incurred in obtaining the email
Electronic Data Involved: Emails
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
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
Copyright © 2022, K&L Gates LLP. All Rights Reserved.