Case Summaries – Page 163 – Electronic Discovery Law

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

Novick v. AXA Network, LLC, No. 07 Civ. 7767(AKH)(KNF), 2013 WL 5597547 (S.D.N.Y. Oct. 3, 2013)

Dec 01 2013

Key Insight: Plaintiff sought production of audio recordings which Defendants initially indicated were available. Upon being ordered to produce certain information regarding those recordings, Defendants indicated they were unable to locate them. Following Plaintiff?s motion for sanctions, the recordings were discovered in a closet, but Defendants argued it would be unduly burdensome to restore and listen to the recordings and that production should not be required. Upon Plaintiff?s motion for sanctions, the court found that Defendants had willfully violated the court?s orders and prejudiced the Plaintiff. Thus, the court ordered Defendants to produce the recordings at their expense and to bear the costs of additional depositions to be taken by the Plaintiff. The court also ordered Defendants and counsel to bear Plaintiff?s reasonable attorneys fees in equal proportion.

Electronic Data Involved: Audio recordings of phone calls

United States ex rel King v. Solvay S.A., No. H-06-2662, 2013 WL 820498 (S.D. Tex. Mar. 5, 2013)

Dec 01 2013

Key Insight: Court granted motion for protective order to limit unduly burdensome discovery and preservation demands where Defendant established the significant burden associated with preserving the multiple repositories of potentially relevant information covering 89 potential custodians, including thousands of back-up tapes, and where the court found that the allegations of the complaint did not justify the broad timeframe for discovery sought

Nature of Case: Qui Tam action alleging violations of anti-kickback statute and retaliation against Relators

Electronic Data Involved: ESI

United States ex rel DeKort v. Integrated Coast Guard Sys. LLC, No. 3:06-cv-1792-0 (BF), 2013 WL 1890283 (N.D. Tex. Mar. 27, 2013)

Dec 01 2013

Key Insight: Noting that ?courts have allowed parties to recover the costs of converting paper documents into electronic files where responsive discovery documents were produced in electronic format,? the court found that defendants could recover $68,829.60 and $24,102.39 respectively ?for creating electronic images of documents responsive to Relator?s discovery requests?

Nature of Case: False Claims Act

Electronic Data Involved: Taxable costs for ediscovery

Allen v. City of Chicago, No. 09 C 243, 2013 WL 1966363 (N.D. Ill. May 10, 2013)

Dec 01 2013

Key Insight: Court approved recovery of costs related to making one set of copies of the at issue documents, including bates labeling , but found that the city had ?not met its burden of establishing that the additional expenses, including scanning, OCR, and the production of a master DVD, were reasonably necessary under ? 1920(4)?

Nature of Case: Unlawful retaliation under Title VII

Electronic Data Involved: taxable costs

Stream Cos., Inc. v. Windward Adver., No. 12-cv-4549, 2013 WL 3761281 (E.D. Pa. July 17, 2013)

Dec 01 2013

Key Insight: Magistrate judge addressed accusations of spoliation and violation of court orders and found that monetary sanctions were appropriate for defendants? spoliation of emails which were deleted (as evidenced by forensic investigation) after the duty of preservation arose but declined to find spoliation had occurred as to defendants? laptops or external storage devices where Plaintiff presented little more than evidence of Defendants? lack of credibility; magistrate judge imposed sanctions for violation of court?s orders where Defendants made unilateral decisions not to produce certain electronic devices but gave numerous assurances that everything had been produced; magistrate judge found Plaintiff had established a prima facie case of defendants? contempt of the court?s discovery orders and preliminary injunction order and certified certain underlying facts for consideration by the District Court

Nature of Case: Violations of Computer Fraud and Abuse Act, Copyright Act, PA Wiretap Act, state trade secret law, duty of loyalty

Electronic Data Involved: Email, storage devices (iPad, iPhone, thumb drives), personal computers

Sophia & Chloe, Inc. v. Brighton Collectibles, Inc., No. 12cv2472-AJB(KSC), 2013 WL 5212013 (S.D. Cal. Sept. 13, 2013)

Dec 01 2013

Key Insight: Court denied Plaintiff?s request for forensic examinations of certain of Defendant?s computers, despite Defendant?s failure to produce internal communications regarding the allegedly infringing jewelry designs where, despite acknowledging Plaintiff?s suspicions, there was no concrete evidence of ?concealment, destruction of evidence, or failure to preserve documents and information? and where Plaintiff was able to explore its suspicions through other ?written and oral discovery tools?

Nature of Case: Copyright and Trademark infringement and unfair competition

Electronic Data Involved: Email, ESI

Great-West Life & Annuity Ins. Co. v. Am. Economy Ins. Co., No. 2:11-cv-02082-APG-CWH, 2013 WL 5332410 (D. Nev. Sep. 23, 2013)

Dec 01 2013

Key Insight: Magistrate judge found that defendant had waived attorney-client privilege as to privileged documents provided to testifying expert for use in preparing his expert report, given that Rule 26(a)(2)(B) requires disclosure of ?the facts or data considered by the witness in forming [his/her opinion(s)],? and expert testified, under oath, that he reviewed the documents he was provided; magistrate judge further ruled that other privileged documents inadvertently produced by defendant were not subject to waiver as parties’ agreed protective order contained strict time line and process for filing motions to challenge claims of privilege after an inadvertent disclosure, and plaintiff did not follow the process

Nature of Case: Insurance coverage dispute

Electronic Data Involved: Privileged documents

Dunbar v. Google, Inc., No. C 12-330, 2013 WL 1346597 (N.D. Cal. Apr. 2, 2013)

Dec 01 2013

Key Insight: Absent evidence that the failure to preserve prior versions of relevant documents was the result of a ?culpable state of mind,? the court declined to impose spoliation sanctions

United Nat?l Maint., Inc. v. Sand Diego Convention Ctr. Corp. Inc., No. 07cv2172 AJB-JMA, 2013 WL 30566 (S.D. Cal. Jan. 2, 2013)

Dec 01 2013

Key Insight: Court declined to allow recovery of costs related to the copying and maintenance of emails within an electronic database where the party seeking recovery voluntarily assumed the costs to avoid the need to review voluminous hard copy and where the copies were not obtained ?for use in the case? as evidenced by the petitioner?s reliance on only a very small portion of ESI as exhibits in this case

Electronic Data Involved: Taxable costs related to storage of emails, ESI

Catagory:Case Summaries