Case Summaries – Page 157 – Electronic Discovery Law

Newill v. Campbell Transportation Co., No. 2:12-cv-1344, 2013 WL 6002349 (W.D. Pa. Nov. 12, 2013)

Dec 01 2013

Key Insight: Court found defendant failed to conduct a reasonable investigation for responsive materials prior to serving its Initial Disclosures and responding to Plaintiff?s first requests for production where defendant failed to discover relevant photographs of the accident site taken by a former employee despite knowing that it was ?standard procedure? for such photographs to be taken; responding to Defendant?s claim that it needn?t extend its investigation to former employees, the court noted that ?[a]nalyzing the practical ability of corporations to obtain work-related documents from former employees, courts insist that corporations, at the very least, ask their former employees to cooperate before asserting that they have no control over documents in the former employees’ possession.? Export?Import Bank, 233 F.R.D. at 341 (citations omitted) (emphasis added).

Nature of Case: Jones Act negligence case

Electronic Data Involved: Digital photographs

Dataflow, Inc. v. Peerless Ins. Co., No. 3:11-CV-127 (LEK/DEP), 2013 WL 6992130 (N.D.N.Y. June 6, 2013)

Dec 01 2013

Key Insight: Failure to institute litigation hold, which resulted in automatic deletion of relevant e-mails as part of defendant’s system-wide upgrade, and defendant’s excessive delay in disclosing such facts, constituted gross negligence; magistrate judge recommended that plaintiff’s motion for sanctions be granted and that trial court issue and adverse inference instruction regarding the destroyed e-mails and award plaintiff its costs in bringing the motion

Nature of Case: Insurance coverage dispute

Electronic Data Involved: E-mail

Goldberg v. 401 N. Wabash Venture LLC, No. 09 C 6455, 2013 WL 4506071 (N.D. Ill. Aug. 23, 2013)

Dec 01 2013

Key Insight: Noting that it was undisputed that e-discovery costs were available as taxable costs under Section 1920(4), but that there was scant legal authority in the circuit and district giving litigants guidance in seeking those costs, court deducted one-half of defendants’ request for costs related to electronically processing, hosting, and producing documents in discovery as well as electronically processing both sides’ trial exhibits, and awarded defendants $3,454 in e-discovery costs

Nature of Case: Commercial litigation

Electronic Data Involved: ESI and trial exhibits

Teller v. Dogge, No. 2:12-cv-00591-JCM-GWF, 2013 WL 5655984 (D. Nev. Oct. 16, 2013)

Dec 01 2013

Key Insight: Where defendant failed to produce subject videos or make his hard drive available for mirror imaging as required by court’s order, but plaintiff ultimately obtained the subject videos from Google, court denied plaintiff’s request for case-dispositive sanctions but would impose an adverse inference instruction in the form of a mandatory presumption in light of multiple warnings to defendant that sanctions would result if he did not produce the information and in light of other “violative and unmannered conduct” of defendant in the litigation

Nature of Case: Copyright infringement

Electronic Data Involved: Videos defendant posted to YouTube, instructional DVD and manual

Drummond Co., Inc. v. Collingsworth, No. 13-mc-81069-JST (JCS), 2013 WL 6074157 (N.D. Cal. Nov. 18, 2013)

Dec 01 2013

Key Insight: Court evaluated various arguments offered by defendants and email account holders resisting production of requested information and found that defendants did not have standing to move to quash the subpoenas, account holder who was human rights lawyer and US citizen established prima facie case of infringement of her right to freely associate, and other account holders who were non-US citizens did not have First Amendment rights; court limited time frame of certain requests and also determined that, because disclosure of identifying and usage information for the accounts beyond counsel may pose a safety risk to the email account holders and/or their families, defendants were entitled to a protective order prohibiting plaintiff?s counsel from sharing such information beyond counsel of record and their employees

Nature of Case: Motion to quash subpoenas to Google and Yahoo! issued in libel action pending in N.D. Ala.

Electronic Data Involved: Subscriber and usage information associated with four email addresses

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

BNP Paribas Mortg. Corp. v. Bank of Amer., N.A., Nos. 09 Civ. 9783(RWS), 09 Civ. 9784(RWS), 2013 WL 2322678 (S.D.N.Y. May 21, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought the return of inadvertently produced privileged documents pursuant to the parties? Fed. R. Evid. 502(d) order (which required the production to be inadvertent to fall within the protective order), the court considered the Lois Sportswear factors and determined that Defendant used reasonable precautions to prevent disclosure (including training contract attorneys to identify privilege and employing a quality control team) and made prompt efforts to rectify their error and ultimately concluded privilege was not waived (court noted that waiver was also not established pursuant to Fed. R. Evid. 502(b))

Electronic Data Involved: Privileged ESI

E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH, 2013 WL 753480 (D. Colo. Feb. 27, 2013)

Dec 01 2013

Key Insight: Following up on its November 2012 opinion (2012 WL 5430974), the court adopted the EEOC?s proposed search terms (with certain additions proposed by Defendant) and amended its November order to hold that the EEOC would bear the initial costs of the Special Master appointed for the purpose of conducting the relevant searches of Plaintiffs? email, social networks, and cell phones and could seek reimbursement from the Defendant by motion and argument at an appropriate time (court had initially ordered that the parties would bear the cost equally

Nature of Case: Sexual Harassment, retaliation

Electronic Data Involved: Social media, text messages, email

Rajala v. McGuire Woods, LLP, No. 08-2638-CM-DJW, 2013 WL 50200 (D. Kan. Jan. 3, 2013)

Dec 01 2013

Key Insight: Court enforced previously entered 502(d) order and found that inadvertent production of privileged material did not waive privilege

Nature of Case: Alleged violations of the Securities Exchange Act and other related claims

Electronic Data Involved: ESI

Fed. Deposit Ins. Co. v. Brudnicki, No. 5:12-cv-00398-RS-GRJ, 2013 WL 2948098 (N.D. Fla. June 14, 2013)

Dec 01 2013

Key Insight: Where discovery would be asymmetrical and Plaintiff would be producing the majority of documents in the case, court approved a protocol that would require the parties to cooperate to develop search terms to identify potentially relevant documents to be uploaded to a database for Defendant?s review for the purpose of identifying documents to be produced and which would require Defendant to pay $.06 per page produced and $225 monthly for each gigabyte uploaded into the database; court held cost-shifting was appropriate where Plaintiff had already identified and collected the potentially responsive information at great expense and compared the $.06 charge to photocopying costs in traditional discovery and also cited and considered the factors of Rule 26(b)(2)(C), which provide authority for cost shifting and ?strongly supported? the Plaintiff?s proposed ESI protocol

Nature of Case: Action against Bank’s former directors for negligence and gross negligence related to approval of 11 transactions

Electronic Data Involved: ESI in FDIC database

Catagory:Case Summaries