eDiscovery Import – Page 69 – Electronic Discovery Law

United States ex rel Lusby v. Rolls-Royce Corp., No. 1:03-cv-680-SEB-WGH, 2013 WL 1666745 (S.D. Ind. Apr. 17, 2013)

Dec 01 2013

Key Insight: Court awarded costs in favor of defendant, including costs related to electronic discovery: ?We have carefully considered Plaintiff’s objections to the nature of the costs sought to be recovered by Defendant, in particular, to the costs incurred in connection with the production of electronically stored information, but we do not find Plaintiff’s objections to be meritorious. As Defendant points out in its briefings, we have awarded as costs the expense of producing electronically stored information in several other recent cases, and Plaintiff’s objections are based largely on judicial decisions issued by courts in other districts and circuits, including the Eastern District of Missouri and the Ninth Circuit Courts of Appeals, which are contrary to the rulings within our Seventh Circuit.?

Electronic Data Involved: ESI (taxable costs)

Phillips v. Wellpoint, Inc., No. 3:10-cv-00357-JPG-SCW, 2013 WL 2147560 (S.D. Ill. May 16, 2013)

Dec 01 2013

Key Insight: Finding the reasoning of the Third Circuit in Race Tires America Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) persuasive, the court in this case found only a portion of Defendant?s claimed costs were recoverable: court allowed recovery for the imaging of hard copy files and for uploading hard copy materials into a database for electronic production and also acknowledged that the conversion of documents into TIFF images was recoverable, but declined to allow recovery for ?logical document determination? (?organizing documents to avoid single page production?), ?project management and technical services,? most ?ingestion services,? and ?professional services? such as establishing protocols for processing and quality control measures to ensure those protocols were met

Electronic Data Involved: Taxable costs related to ediscovery

Lee v Stonebridge, No. 11-cv-43 RS (JSC), 2013 WL 3889209 (N.D. Cal. July 30, 2013)

Dec 01 2013

Key Insight: Court denied Defendant?s motion to conduct a forensic inspection of Plaintiff?s iphone where there was no dispute that the at-issue phone was not the phone that received the at-issue text message and where Plaintiff?s expert indicated that the relevant iphone had been backed up on plaintiff?s personal computer; court denied motion to conduct a forensic inspection of Plaintiff?s personal computer where Defendant failed to demonstrate that the information sought was not reasonably accessible through other sources (e.g., the co-defendant that allegedly sent the at-issue text message), where plaintiff had offered to search for whatever information defendant sought, where plaintiff had already provided considerable data, and where Defendant?s request was essentially a fishing expedition; court reasoned that ?absent a showing of misconduct? raising questions regarding the completeness of Plaintiff?s expert?s search, no inspection by Defendant was warranted and ordered the parties to cooperate to create a protocol for plaintiff?s expert to use

Electronic Data Involved: iphone, contents of personal computer, text-message

Fairview Ritz Corp. v. Borough of Fairview, No. 09-875 (JLL), 2013 WL 5435060 (D.N.J. Sept. 27, 2013)

Dec 01 2013

Key Insight: Upon motion for reconsideration based on Plaintiff?s location and production of a document previously found to have been spoliated, court found that an adverse inference and monetary sanctions predicated on the finding of spoliation were no longer appropriate but ordered Plaintiff?s counsel to show cause why monetary sanctions should not be imposed for the delay and Defendants? protracted efforts to procure the document?s production

Electronic Data Involved: Single document (ESI)

Cefalu v. Holder, No. 12-0303 THE (JSC), 2013 WL 4102160 (N.D. Cal. Aug. 12, 2013)

Dec 01 2013

Key Insight: Where Defendant sought to compel production of plaintiff’s personal computers’ hard drives for inspection or to compel Plaintiff?s counsel to perform an independent search of the computer and other electronic devices to ensure that all responsive documents had been produced and where Defendant cited a prior search by Plaintiff?s counsel that yielded additional responsive documents and Plaintiff?s counsel?s admission that she had never examined the contents of Plaintiff?s personal computers, the court acknowledged that the rules do not create a right of direct access to a party?s electronic information systems, but, also acknowledged that the history of Plaintiff?s document productions suggested that he may not ?fully understand his search obligations,? and thus the court ordered Plaintiff?s counsel to ensure that all responsive documents on the computers and other devices were located and produced but declined to allow Defendant to conduct its own examination absent a demonstration of good cause

Electronic Data Involved: Contents of personal computer

Ancora Techs., Inc. v. Apple, Inc., No. 11-CV-06357 YGR, 2013 WL 4532927 (N.D. Cal. Aug. 26, 2013)

Dec 01 2013

Key Insight: Addressing taxable costs, court allowed recovery of costs related to conversion of documents to TIFF file format which the parties agreed would be the format of production but declined to allow costs for hosting electronic documents

Electronic Data Involved: ESI/ taxable costs

Kwan Software Eng?g, Inc. v. Foray Techs., LLC, No. C 12-03762 SI, 2013 WL 5487421 (N.D. Cal. Oct. 1, 2013)

Dec 01 2013

Key Insight: Where parties agreed to production of ESI in searchable form with metadata but Defendant produced TIFF images without metadata, court ordered re-production of ESI in accordance with parties’ agreement and amended the pretrial schedule

Electronic Data Involved: ESI and metadata

Novick v. AXA Network, LLC, No. 07 Civ. 7767(AKH)(KNF), 2013 WL 5597547 (S.D.N.Y. Oct. 3, 2013)

Dec 01 2013

Key Insight: Plaintiff sought production of audio recordings which Defendants initially indicated were available. Upon being ordered to produce certain information regarding those recordings, Defendants indicated they were unable to locate them. Following Plaintiff?s motion for sanctions, the recordings were discovered in a closet, but Defendants argued it would be unduly burdensome to restore and listen to the recordings and that production should not be required. Upon Plaintiff?s motion for sanctions, the court found that Defendants had willfully violated the court?s orders and prejudiced the Plaintiff. Thus, the court ordered Defendants to produce the recordings at their expense and to bear the costs of additional depositions to be taken by the Plaintiff. The court also ordered Defendants and counsel to bear Plaintiff?s reasonable attorneys fees in equal proportion.

Electronic Data Involved: Audio recordings of phone calls

Fed. Deposit Ins. Co. v. Johnson, No. 2:12-cv-00209-KJD-PAL, 2013 WL 1195698 (D. Nev. Mar. 22, 2013)

Dec 01 2013

Key Insight: Considering competing ESI protocols, court approved FDIC?s protocol which included provision that Defendant would pay $.06 per page for documents selected for physical production after review in an electronic database citing, among other things, the fact that the FDIC had already spent $791,000 to locate and produce responsive information and relying on a line of cases ?which have held that a party responding to discovery requests is responsible for the initial costs of reviewing and preparing paper documents and ESI for inspection and copying, but is not responsible for paying copying costs for voluminous materials.?

Electronic Data Involved: ESI

In re Heinz, 501 B.R. 746 (Bankr. N.D. Ala. 2013)

Dec 01 2013

Key Insight: Although court found that evidence compelled conclusion that debtor?s spoliation of electronic evidence, failure to preserve both ESI as well backup paper documentation, and failure to produce thumb drive was willful and intentional given the timing during imminent or ongoing litigation, court declined to impose a specific sanction against the debtor such as a default judgment and instead drew an adverse inference against debtor to the extent it impacted the debtor?s overall credibility; court ultimately found that plaintiffs? claim against the debtor for $39,296, stemming from judgment obtained by plaintiffs against debtor for breach of contract, was not dischargeable

Nature of Case: Complaint to determine dischargeability

Electronic Data Involved: Thumb drive containing financial information from 2009 through 2011

Author - eDiscovery Import