Case Summaries – Page 163 – Electronic Discovery Law

Home Instead, Inc. v. Florance, No. 8:12CV264, 2013 WL 5979629 (D. Neb. Nov. 8, 2013)

Dec 01 2013

Key Insight: Finding defendants? effort to respond to discovery inadequate in various respects, court granted plaintiff’s motion to compel and ordered defendants: (1) to provide detailed listing of all documents responsive to plaintiff’s discovery and in defendants’ possession, custody or control as of date of discovery requests, but which were not produced because defendants destroyed, deleted, sold, shredded or otherwise discarded them, along with a description of how and when defendants lost control or possession of such information, (2) to further search for and respond to discovery, produce any additional discovery located, and explain by written affidavit, as to each separate document request, the efforts made to locate responsive documents, and (3) to provide a sworn affidavit outlining whether a litigation hold was put in place, persons to whom litigation hold letter was sent, directions for preservation, sources identified for search, search terms used and efforts to ensure compliance with litigation hold; court further faulted defendants? production of one large PDF that contained no metadata, no indication of parent-child document relationship, and no indication as to the beginning and end of each document, and ordered defendants to produce responsive information in a manner that complied with the Federal Rules

Nature of Case: Franchise dispute involving claims for violation of non-compete clause, misappropriation of trade secrets and license marks, and other claims

Electronic Data Involved: ESI

In re Waste Management of Texas, —S.W.3d—, 2013 WL 203603 (Tex. App. Jan. 18, 2013)

Dec 01 2013

Key Insight: Court denied petition for mandamus relief from order compelling re-production of ESI in native format with metadata where Waste Management failed to establish that the order would result in undue burden, among other things; in its analysis of undue burden, the court concluded that a request for production in a ?reasonable manner? was a sufficient to satisfy the requirement that a party ?specify the form? in which ESI should be produced (rule 196.4) and that the estimated expense of $5,500.00 to accomplish reproduction did not pose an undue burden and reasoned, in part, that the order was not unduly burdensome because of Waste Management?s ?conscious decision? to remove metadata from the original production; opinion also addressed Waste Management?s claim that the matters to be disclosed included trade secrets, its claim that the order was overbroad, issues related to the preservation of claims for appeal, and the question of whether Waste Management?s arguments related to cost allocation could adequately be addressed on appeal

Nature of Case: Petition for writ of mandamus

Nobel Biocare USA, LLC v. Technique D?usinage Sinlab, Inc., No. 1:12cv730, 2013 WL 819911 (E.D. Va. Mar. 4, 2013)

Dec 01 2013

Key Insight: Court found costs associated with converting information into the agreed-upon format and electronically Bates stamping were analogous to copying costs and therefore taxable and thus allowed recovery of such costs over Defendant?s objection

Electronic Data Involved: Taxable costs

Prowess, Inc. v. Raysearch Labs. AB, No. WDQ-11-1357, 2013 WL 1976077 (D. Md. May 9, 2013)

Dec 01 2013

Key Insight: Pursuant to FRE 502(b), the court found privilege had not been waived where production of the at-issue document was inadvertent (instead of producing certain documents within a sub-folder, the whole folder was mistakenly produced), where reasonable steps were taken to prevent the disclosure (trained and supervised contract attorneys conducted privilege review and only 16 of 60,000 documents were inadvertently produced) and where reasonable and prompt steps were taken to rectify the error (plaintiff contacted defendant the day after it learned of the inadvertent production)

Electronic Data Involved: ESI (infringement analysis)

Tapp v. New York State Urban Dev. Corp., No. 9131N, 2013 WL 3622969 (N.Y. App. Div. Jan. 31, 2013)

Dec 01 2013

Key Insight: Lower court ?correctly determined that plaintiff?s mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection? and that ?to warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff?s Facebook account?

Nature of Case: Personal Injury

Electronic Data Involved: Facebook

United States v Finazzo, No. 10-CR-457 (RRM)(RML), 2013 WL 619572 (E.D.N.Y. Feb. 19, 2013)

Dec 01 2013

Key Insight: Court found privilege was waived as to an allegedly privileged email received at, and then forwarded to another email address from, an employer-owned email address

Nature of Case: Indictment arising from conspiracy to receive kickbacks from clothing supplier

Electronic Data Involved: Email

Oracle USA, Inc. v. Rimini Street, Inc., No. 2:10-cv-00106-LRH PAL, 2013 WL 1292685 (D. Nev. Mar. 29, 2013)

Dec 01 2013

Key Insight: Court imposed spoliation sanctions, including an adverse inference, for defendant?s deletion of a ?software library? despite a duty to preserve

Nature of Case: Copyright infringement

Electronic Data Involved: Software library

Out of the Box Developers LLC v. Logicbit Corp., No. 10 CVS 8327, 2013 WL 3090303 (N.C. Sup. Ct. June 5, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought production of three versions of at-issue software but encountered repeated delays on the part of Defendants and where one Defendant eventually discovered that he was in fact in possession of (i.e., had preserved) the older version of the software that Plaintiffs requested but had failed to discover the information because he failed to make inquiry of ?others under his control,? including his law firm?s IT personnel, the court elected to impose ?the lesser sanction of taxing costs? and ordered that Defendants reimburse Plaintiff for its reasonable costs and expenses associated with its various motions to compel; Defendants were ordered to install a current copy of the software on a laptop provided by the Plaintiff, to provide Plaintiff with direct access to the customized version currently in use by the Defendant/law firm, and to produce to Plaintiff a copy of the recently discovered database backup containing the software as originally installed

Nature of Case: Claims that defendants “stole a series of [Plaintiff’s] software customizations” and incorporated them into their software

Electronic Data Involved: Versions of case management software (original, customized, and current)

Breathablebaby LLC v. Crown Crafts, Inc., No. 12-cv-94 (PJS/TNL), 2013 WL 3350594 (D. Minn. May 31, 2013)

Dec 01 2013

Key Insight: Calling defendants collection efforts ?incomplete and somewhat haphazard? where defendant provided no instruction to its chosen custodians regarding the types of documents to search for, whether to check with subordinates, or how to search for documents, the court reopened discovery so that production could ?commence in accordance with the parties? joint ESI plan,? and ordered the parties to meet and confer regarding search terms and an amended scheduling order; court considered proper logging of emails and ordered defendant to produce an amended privilege log that listed each privileged email contained in an email string separately

Nature of Case: Patent infringement

Electronic Data Involved: Email, misc. ESI

Linde v. Arab Bank, PLC, 706 F.3d 92 (2d Cir. 2013)

Dec 01 2013

Key Insight: On appeal from sanctions order against Arab Bank, court found it did not have jurisdiction over the order for sanctions and dismissed the appeal; court also found Arab Bank was not entitled to a writ of mandamus vacating the sanctions order and the petition for a writ of mandamus was therefore denied

Nature of Case: Knowingly and purposefully aiding and abetting terrorists and terrorist organizations

Electronic Data Involved: Foreign banking information

Catagory:Case Summaries