Case Summaries – Page 142 – Electronic Discovery Law

TVIIM, LLC v. McAfee, Inc., No. 13-cv-04545-VC (KAW), 2014 WL 5280966 (N.D. Cal. Oct. 15, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted in part and denied in part plaintiff?s request to compel defendant to produce emails employing particular keywords in Boolean search of five identified custodians, stating that defendant need not run two of the requested searches because they used truncated versions of defendant?s product names — something that was prohibited by the parties? ESI Order barring use of indiscriminate terms, such as the producing company?s name or its product name, unless combined with narrowing search criteria to reduce risk of overproduction; as to third requested search, magistrate judge ordered parties to confer to identify keywords that would remove ?out of office? and other automatic responses from the results, and ordered defendant to produce emails within seven days of parties? agreement

Nature of Case: Patent infringement

Electronic Data Involved: Email

In re Incretin Mimetics Prods. Liab. Litig., MDL Case No. 13md2452 AJB (MDD), 2014 WL 4987877 (S.D. Cal. Oct. 6, 2014)

Dec 01 2014

Key Insight: Where defendants estimated that cost of production would be between $280,000 and $400,000, or even greater, court denied plaintiffs’ motion to compel production of adverse event source documents and databases, finding that the additional time and expense of identifying, redacting, and producing the source files outweighed the likely benefit resulting from evaluating source files for instances of mis-classification

Nature of Case: Products liability

Electronic Data Involved: Source documents underlying adverse event reports and adverse event databases

In re: Cathode Ray Tube (CRT) Antitrust Litig., MDL No. 1917, 2014 WL 5462496 (N.D. Cal. Oct. 23, 2014)

Dec 01 2014

Key Insight: District court overruled defendant?s objections to magistrate judge’s report and recommendation and granted the direct action plaintiffs’ motion to compel production of documents located in France in accordance with the FRCP; court evaluated a series of factors in weighing whether foreign laws like the French Blocking Statute excused compliance with an American discovery request, and concluded that the relevant factors weighed in favor of permitting discovery to go forward in France pursuant to the FRCP; court dismissed defendant?s argument that it would be subject to criminal sanctions if it complied with discovery requests outside the Hague Convention process, observing that there was no realistic risk of prosecution under the French Blocking Statute

Nature of Case: Violations of U.S. antitrust laws

Electronic Data Involved: Documents held by a defendant in France that were relevant to such defendant’s communications with competitors, and documents produced to various foreign regulatory agencies during prior investigations related to price fixing in the CRT industry

Dorchester Fin. Holdings Corp v. Banco BRJ S.A., 11-CV-1529 (KMW) 2014 WL 7051380 (S.D.N.Y. Dec. 15, 2014)

Dec 01 2014

Key Insight: Trial court found Plaintiff committed spoliation when a computer containing key documents was destroyed. Court imposed sanctions of precluding evidence derived from the computer from being presented at trial and ordered Plaintiff to pay Defendant?s attorney fees and costs. Upon review, Court upheld the spoliation ruling but imposed a mandatory adverse inference instead of the preclusion order. Court agreed that Plaintiff had a duty to preserve, was culpable in the destruction of the evidence, and the data that was destroyed was relevant to the Defendant?s claims. The court further elaborated that Plaintiff?s duty to preserve did not end when the computer allegedly crashed, and that Plaintiff should have made reasonable efforts to recover the data it contained. Saying that the spoliation prejudiced the defendant in a ?severe way? that can only be corrected by a ?substantial sanction,? the Court found that a mandatory adverse inference was the best way to repair the damage to Defendant without being a ?harsh measure given the extent of Plaintiff?s reliance of the documents??

Nature of Case: Breach of Contract, Fraud

Electronic Data Involved: Contents of “crashed” laptop computer

Icon-IP Pty Ltd., v. Specialized Bicycle Components, Inc., No. 12-cv-03844-JST (MEJ), 2014 WL 6788182 (N.D. Cal. Dec. 2, 2014)

Dec 01 2014

Key Insight: Plaintiff sought to compel Defendant to produce additional documents relevant to their design infringement claims by searching Defendant?s emails and electronic design documents. Defendant argued that this comprehensive search of electronic design documents would be ?overly burdensome, oppressive, and not reasonably calculated to lead to discovery of admissible evidence,? and conducted a reasonable search responsive to Plaintiffs request, but did not explain why and how the comprehensive search would be burdensome. Defendant complied with a stipulation agreeing to specific email search terms and custodians, subject to objections which Plaintiff did not respond to. The court ordered that Plaintiff was entitled to additional discovery of electronic design documents because Defendant did not meet the burden of showing the request was unduly burdensome. However, since Defendant did comply with the stipulation, further email searches were not needed.

Nature of Case: Patent Litigation

Electronic Data Involved: ESI

Black Diamond Mining Co. v. Genser, No. 12-125-ART, 2014 WL 3611329 (E.D. Ky. July 22, 2014)

Dec 01 2014

Key Insight: Court addressed motion for sanctions and found that accused spoliators had acted intentionally and/or negligently, but not in bad faith; court found that sanctions were ?unwarranted? for the negligent loss of certain email attachments because of defendant?s failure to ?access documents in an archive while gathering the original emails?- even despite finding that defendant acted with a ?culpable state of mind? – where plaintiff failed to produce any evidence of the attachments? relevance (court noted that defendant did not ?actively delete the attachments? but rather its agents ?forgot to take steps to preserve the documents before they were deleted from the archive?); for individual actors? negligent and intentional failures to preserve ESI and hard copy documents, the court found that the ?test of relevance [was] satisfied? and imposed a permissive adverse inference, but declined to order reimbursement of the Trustee?s fees or the costs of bringing the motion

Electronic Data Involved: Email attachments, ESI, hard copy

Innovation Ventures, LLC v. N2G Distrib., Inc., No. SA CV 12-00717-AB (Ex), 2014 WL 10384643 (C.D. Cal. Dec. 10, 2014)

Dec 01 2014

Key Insight: Court denied recovery of the cost of ?storage of produced documents in [an] electronic discovery database? where Plaintiff failed to establish that the database was necessary and not merely beneficial or convenient

Electronic Data Involved: Taxable costs

Jones v. Union Pac. R.R. Co., No. 12 C 771, 2014 WL 37843 (N.D. Ill. Jan. 6, 2014)

Dec 01 2014

Key Insight: Videotape of collision filmed from train was admissible, despite inability of defendant to produce the hard drive from which it originally was copied, where both eyewitness testimony which corroborated the footage and chain of custody evidence established its authenticity; no spoliation sanctions for reuse of hard drive where such reuse was a ?routine practice? for defendant and because plaintiff could not establish prejudice resulting from the loss of the hard drive (the video was available)

Nature of Case: Personal injury (train/car collision)

Electronic Data Involved: Original hard drive containing video footage

Robocast, Inc. v. Microsoft Corp., No. 10-1055-RGA, 2014 WL 789086 (D. Del. Feb. 25, 2014)

Dec 01 2014

Key Insight: District court sustained Microsoft’s objection to special master’s order granting adverse inference instruction in light of finding that Microsoft’s failure to preserve source code was negligent rather than willful or grossly negligent; a finding of bad faith is required in order for an adverse inference instruction to be appropriate

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Cognate Bioservices, Inc. v. Smith, Civil No. WDQ-13-1797, 2014 WL 988857 (D. Md. Mar. 12, 2014)

Dec 01 2014

Key Insight: Court denied motion for an order to preserve evidence, finding that defendant had complied with his duty to preserve — he gave opposing party notice that the laptop he used in connection with his employment at competitor would be returned after his resignation, provided the name and address of the person in possession of the laptop, and made efforts to ensure that relevant information on the laptop was not deleted

Nature of Case: Employer sued former employee and his new consulting firm for violations of Computer Fraud and Abuse Act, misappropriations of products, misappropriations of trade secrets

Electronic Data Involved: Laptop, computer passwords to former employer’s virtual private network and server computers

Catagory:Case Summaries