Case Summaries – Page 117 – Electronic Discovery Law

Mobile Telecomm. Techs., LLC v. Samsung Telecomm. Am., LLC, No. 2:13-cv-259-RSP, 2015 WL 5719123 (E.D. Tex. Sept. 28, 2015)

Dec 01 2015

Key Insight: Court denied recovery of OCR costs where Defendant failed to show that the step was necessary for making copies, where no party had identified 5th Circuit authority allowing recovery of OCR costs, and where the holding was consistent with the Court?s standing order, which specifically instructed that e-Discovery costs were not allowed, including ?cost for document collection, document processing, and document hosting.?

Electronic Data Involved: Taxable costs

Bagely v. Yale University, —F. supp. 3d—, No. 3:13-CV-1890 CSH, 2015 WL 1897425 (D. Conn. Apr. 27, 2015)

Dec 01 2015

Key Insight: Court denied motion for protective order seeking permission to be excused from the obligation to conduct further discovery where, although defendant claimed that prior production efforts had resulted in a less than 8% responsiveness rate, the court reasoned that Rule 26(b)(2)(B) ?measures the phrase ?not reasonably accessible? by whether it exposes the responding party to ?undue cost.? Not some cost: undue cost . . .? and where the court reasoned that Plaintiff had, in any event, shown good cause for further discovery; court?s discussion provides good analysis of issues related to 26(b)(2)(B)

Nature of Case: Wrongful termination

Electronic Data Involved: ESI from agreed upon custodians

City of Sterling Heights Gen. Emps.? Ret. Sys. V. Prudential Fin., Inc., No. 12-05275(MCA)(LDW), 2015 WL 5055241 (D.N.J. Aug. 21, 2015)

Dec 01 2015

Key Insight: Citing its broad discretion to manage discovery and the limitations posed by Rule 26(b)(2)(C), court granted in part and denied in part Plaintiffs? motion to compel Defendant to identify additional custodians and utilize additional search terms and ordered that Plaintiffs would be allowed to choose up to 10 additional custodians and that Defendant must apply the four disputed search terms proposed by Plaintiffs

Nature of Case: Securities Class Action

Electronic Data Involved: ESI

United States v. Dish Network, LLC, No. 09-3073, 2015 WL 5970446 (C.D. Ill. Oct. 13, 2015)

Dec 01 2015

Key Insight: For defendant?s failure to preserve and produce relevant evidence, copies or versions of which were discovered on a third party?s hard drive (e.g. correspondence between Defendant?s employee and the third party that were not preserved and produced by the defendant), the court found that Plaintiff ?suffered some prejudice? and thus sanctioned Defendant by taking it as ?established fact? that Defendant had similar communications with all of its ?Order Entry Retailers? (of which the relevant third party was one) of the same ?substantive type and quantity? as those discovered on the third party?s hard drive

Nature of Case: FTC Investigation: TCPA

Electronic Data Involved: ESI, email

Parsi v. Daioleslam, 778 F.3d 116 (D.C. Cir. 2015)

Dec 01 2015

Key Insight: Appellate court affirmed in part and reversed in part the District Court?s imposition of monetary sanctions for Plaintiff?s many discovery violations, including repeated violation of the court?s orders resulting in belated production of relevant evidence, and found no abuse of discretion for awarding expenses related to Defendants? third motion to compel Plaintiff?s production of relevant hardware, expenses related to the forensic imaging of Plaintiff?s hard drive, expenses related to the redeposition of Plaintiff?s officers (after delayed production of relevant evidence), and litigation expenses as a sanction for withholding emails

Nature of Case: Defamation

Electronic Data Involved: ESI (calendar items, database contents, other)

O?Connor v. Newport Hosp., 2015 WL 1225683 (R.I., Mar. 17, 2015)

Dec 01 2015

Key Insight: Court vacated judgment in a medical malpractice case and remanded the case for a new trial where the trial justice admitted 3 exhibits without proper authentication, and exacerbated the error by allowing a biased, incorrect jury instruction which highlighted the information contained in the erroneously admitted exhibits, contributing to their prejudicial effect. Exhibits in question – whose purpose was to impeach plaintiff?s sole medical expert witness – were 2 printed versions of web pages, and a purported printout of an email, all of which were admitted over plaintiff?s objections after plaintiff?s expert witness was asked questions about their contents. With the record indicating no attempt to verify authenticity, no comments or findings from the justice with respect to authentication of any of the documents, nor indication on the record that defendant?s counsel made any representations to the trial justice regarding when or by whom the purported web page print outs were accessed and printed, the court concluded ?While we have not set a ?high hurdle to clear? with respect to authentication ? we hold that the trial justice abused his discretion by admitting exhibits A-C based solely on the brief testimony of one witness who was clearly unfamiliar with all three documents.?

Nature of Case: Medical malpractice

Electronic Data Involved: Email; Web page

Burnett v. Ford Motor Co., No. 3:13?cv?14207, 2015 WL 1650439 (S.D. W. Va. April 14, 2015); Burd v. Ford Motor Co., No. 3:13?cv?20976, 2015 WL 1650447 (S.D. W. Va. April 14, 2015); Johnson v. Ford Motor Co., No. 3:13?cv?06529, 2015 WL 1650428 (S.D. W. Va. April 14, 2015)

Dec 01 2015

Key Insight: Inadvertently produced ESI

Nature of Case: Product Liability

Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., No. 11 CV 2450, 2015 WL 351244 (N.D. Ill. Jan. 27, 2015)

Dec 01 2015

Key Insight: Regarding the taxation of e-Discovery costs, court found that costs ?associated with the conversion of ESI into a readable format, such as scanning or otherwise converting a paper version to an electronic version or converting native files to TIFF files … are compensable under ? 1920(4). But costs related to the ?gathering, preserving, processing, searching, culling, and extracting of ESI simply do not amount to ?making copies? and are thus not taxable.?

Electronic Data Involved: Taxable e-Discovery Cost

Wal-Mart Stores, Inc. v. Cuker Interactive, LLC, NOo. 5:14-CV-5262, 2015 WL 11120890 (W.D. Ark. April 9, 2015)

Dec 01 2015

Key Insight: Where parties agreed to produce in native format but Defendant then loaded its information into a hosted database and indicated that Plaintiff could view the docs, including some metadata, but could only receive production of specified documents in a static image format, at a cost for each such ?exportation,? and where Defendant argued such production complied with Rule 26(f) and that the data was in a reasonably usable form, the court held the parties to their agreement, reasoning that ?[s]imply put, native format means native format? and also rejected Defendant?s security concerns, agreeing with Plaintiff that production on an external hard drive was acceptable; court?s order stated that parties would ?produce discovery from electronic or computer-based media directly to each other in native format, on external hard drives whenever possible.?

Electronic Data Involved: ESI

Flanders v. Dzugan, No. 12-1481, 2015 WL 5022734 (W.D. Pa. Aug. 24, 2015)

Dec 01 2015

Key Insight: Court declined to impose sanctions, despite Defendant?s failure to issue a litigation hold, where Plaintiff could not show that evidence was actually lost or destroyed and where, although the court acknowledged that Defendant?s record keeping appeared ?slipshod,? Plaintiff could not show bad faith (?in no case in the Third Circuit cited by Plaintiff, or found by this Court, has a court granted a spoliation inference on nothing more than a failure to institute a litigation hold?)

Nature of Case: [A]lleged constitutional violations arising out of the building permit approval process

Electronic Data Involved: ESI, email

Catagory:Case Summaries