Case Summaries – Page 157 – Electronic Discovery Law

Mastr Adjustable Rate Mortgages Trust v. UBS Real Estate Secs. Inc., No. 12 Civ. 7322(HB)(JCF), 2013 WL 5651290 (S.D.N.Y. Oct.15, 2013)

Dec 01 2013

Key Insight: Where review of sample of unproduced documents revealed possibility that more responsive documents had been missed than had been produced, court ordered producing party to re-review at-issue custodians? files and to confer with requesting party regarding expansion of search terms; court rejected producing party?s arguments that its initial review was ??on par with and likely more accurate than typical document reviews,? citing cases and studies finding that human reviewers are disconcertingly error-prone? reasoning in part that producing party ?can, and has, utilized review technologies that can, if used properly, be expected to identify more than a mere half of the potentially responsive documents.?

Nature of Case: Breach of contract, declaratory judgment

Electronic Data Involved: ESI

Ford Motor Co. v. Mich. Consol. Gas Co., No. 08-CV-13503, 2013 WL 5435184 (E.D. Mich. Sep. 27, 2013)

Dec 01 2013

Key Insight: Magistrate judge evaluated plaintiffs? work product, attorney-client privilege, joint defense and common interest privilege claims, set out various findings and guidelines, and ordered plaintiffs to update their respective privilege logs and produce certain documents; magistrate judge further ruled that, because Ford had earlier produced voluminous documents as they were kept in the usual course of business, it had no further duty under Rule 34 or otherwise to organize and label the documents to correspond with individual requests for production

Nature of Case: Current and former property owners sued former operator of manufactured gas plant

Electronic Data Involved: Environmental investigation, remedy assessment and allocation related documents

First Fin. Bank N. A. v Bauknecht, No. 12-CV-1509, 2013 WL 3833039 (C.D. Ill. July 23, 2013)

Dec 01 2013

Key Insight: Magistrate Judge granted a motion to compel a search of all of defendant?s email accounts , not limited to the 4 specific individuals listed in the Rule 26(a) disclosures, reasoning that the 26(a) disclosure ?only meant? that the individuals identified may be used to support defendant?s claims or defense and that defendant did not indicate that the specified employees were the only ones to have responsive documents. The court denied Plaintiff?s request to compel Defendant to conduct separate searches of its email, one by ?recipient/sender? and one ?by subject matter? using specified search terms and reasoned that the latter search was broader, but indicated that Plaintiff could pay for the second search. Having declined to limit the accounts to be searched, the court acknowledged the likelihood that accounts unlikely to have relevant information would be included, and shifted 25% of the cost to the requesting party (Plaintiff).

Nature of Case: Breach of Employment Contract

Electronic Data Involved: ESI

Parsi v. Daioleslam, No. 08-705 (JDB), 2013 WL 1403226 (D.D.C. Apr. 8, 2013)

Dec 01 2013

Key Insight: Court addressed Defendant?s final bill of recoverable costs and request for reimbursement for expenses related to his prior motion for sanctions, including costs related to two rounds of forensic imaging by PricewaterhouseCoopers, and, after deducting and discounting certain costs, awarded recovery in the amount of $71,624.08 for the costs of imaging and related attorneys? fees

Electronic Data Involved: Costs related to forensic imaging

Novick v. AXA Network LLC, No. 07 Civ. 7767(AKH)(KNF), 2013 WL 5338427 (S.D.N.Y. Sept. 24, 2013)

Dec 01 2013

Key Insight: Conducting its cost-shifting analysis ?under the Zubulake standard,? court reasoned that defendants ?failed to show that cost-shifting is appropriate because they did not establish that the production at issue was unduly burdensome or expensive, that is, that the data were kept in an inaccessible format.?

Electronic Data Involved: Emails

Slovin v. Target Corp., No. 12 CV 863(HB), 2013 WL 840865 (S.D.N.Y. Mar. 7, 2013)

Dec 01 2013

Key Insight: Court found Target was at least grossly negligent for failing to preserve all portions of relevant surveillance footage (capturing Plaintiff?s fall and the surrounding circumstances) and thus imposed an adverse inference and monetary sanctions, but declined to strike Target?s answer or preclude use of the at-issue video excerpts and photographs

Nature of Case: Personal injury/slip and fall

Electronic Data Involved: Surveillance footage

United States ex rel Becker v. Tools & Metals, Inc., Nos. 3:05-CV-0627-L, 3:05-CV-2301-L, 2013 WL 1293818 (N.D. Tex. Mar. 31, 2013)

Dec 01 2013

Key Insight: Court addressed at length the recovery of costs related to electronic discovery in action alleging violations of False Claims Act and affirmed recovery of costs, although with some adjustments, for ?uploading and creating a search index? (done by vendor), electronic hosting costs, and forensic imaging, but did not allow recovery of costs related to vendor?s efforts to repair broken or corrupt files where asking for reproduction of those files would have been free

Nature of Case: False Claims Act

Electronic Data Involved: Costs related to electronic discovery

Hull v. WTI, Inc.,—S.E.2d—, 2013 WL 2996191 (Ga. Ct. App. June 18, 2013)

Dec 01 2013

Key Insight: Where defendants produced 156,000 documents as they were kept in the ordinary course of business but where the documents were insufficiently organized and only the documents? indexes and not the documents themselves were text searchable, the trial court did not abuse its discretion in holding that the production was not consistent with Defendants? discovery obligations; appellate court noted that trial court did not hold that parties are prohibited from producing documents as kept in the ordinary course of business but rather than in this instance, ?under these circumstances,? the production was not appropriate

Nature of Case: Breach of contract, trade secret misappropriations, and “other business tort claims” and counterclaims

Electronic Data Involved: Scanned hard copy and miscellaneous ESI (e.g., email)

SJS Distribution Sys., Inc. v. Sam?s East, Inc., No. 11 CV 1229(WFK)(RML), 2013 WL 5596010 (E.D.N.Y. Oct. 11, 2013)

Dec 01 2013

Key Insight: For Plaintiff?s failure to preserve potentially relevant emails and other ESI (including the failure to issue a litigation hold) despite its duty to preserve (which was triggered upon its discovery of alleged packaging discrepancies in diaper shipments delivered by the defendant), the court declined to preclude Plaintiff from offering certain evidence, noting the lack of bad faith, but ordered an adverse inference stating that Plaintiff negligently deleted relevant emails that would have been favorable to the defendant and for Plaintiff to pay Defendant?s attorney?s fees and costs associated with the motion for sanctions

Nature of Case: Claims related to packaging discrepancies in diapers delivered to Plaintiff that were intended for resale

Electronic Data Involved: ESI, email

CBT Flint Partners LLC v. Return Path LLC, 737 F.3d 1320 (Fed. Cir. 2013)

Dec 01 2013

Key Insight: Court addressed recovery of costs related to electronic discovery pursuant to 28 U.S.C. 1920(4) ?applying the law of the regional circuit (in this case, the Eleventh Circuit)”

Nature of Case: Patent Infringement

Electronic Data Involved: Taxable costs related to electronic discovery

Catagory:Case Summaries