Case Summaries – Page 164 – Electronic Discovery Law

United States ex rel King v. DSE Inc., No. 8:08-CV-2416-T-23EAJ, 2013 WL 610531 (M.D. Fla. Jan. 17, 2013)

Dec 01 2013

Key Insight: Where Relator withheld production of video diaries admittedly containing information damaging to his case and subsequently claimed the video was lost as the result of a burglary, court found overwhelming evidence of bad faith and that defendants had been prejudiced and thus dismissed Relator?s claims

Nature of Case: Violations of False Claims Act

Electronic Data Involved: Video diaries recorded by Relator

Mazza v. Quicken Loans, Inc., No. 1:12 CV 142, 2013 WL 2296657 (N.D. W. Va. May 24, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought relevant information but failed to sufficiently limit the scope of her requests temporally or geographically, court agreed with defendant that the requests as written were overly broad but found that defendant had not made a sufficient showing that the burden of responding to modified, limited requests would outweigh the benefit or that cost shifting was required and thus ordered defendants to respond to the requests, subject to the courts temporal, geographic, and fact-specific limitations

Nature of Case: Predatory lending

Electronic Data Involved: ESI

Jo Ann Howard & Assocs. v. Cassity, No. 4:09CV01252 ERW, 2013 WL 3788804 (E.D. Mo. July 19, 2013)

Dec 01 2013

Key Insight: Alleged inadvertent production found to be waiver of privilege where the court found the production was voluntary (noting that the document had been produced twice and was clearly identified in the production log); found that reasonable precautions were not taken to prevent disclosure (citing the failure to label the document as privileged and the low number of other documents in the production and reasoning that blaming an error by the file room staff did not ?excuse? the failure to supervise production); and found that Defendants failed to take prompt measures to rectify the disclosure (citing the failure to claim privilege when asked for further details regarding the document in the course of discovery and the almost seventeen month delay between the ?first voluntary production? and the assertion of privilege)

Nature of Case: RICO, violations of fiduciary duty, gross negligence

Electronic Data Involved: Narrative summary of events composed by Defendant

Smyth v. Merchants Credit Corp., No. C 11-1879RSL, 2013 WL 5200811 (W.D. Wash. Sept. 16, 2013)

Dec 01 2013

Key Insight: Court declined to compel re-production of data in native format where no form of production was requested and where the producing non-party had already produced responsive information in hard copy

Nature of Case: debt collection

Electronic Data Involved: ESI

Transamerica Life Ins. Co. v. Lambert, No. 4:12-CV-1253 CAS, 2013 WL 4028275 (E.D. Mo. Aug. 7, 2013)

Dec 01 2013

Key Insight: Court granted cross-claim plaintiff’s motion to compel cross-claim defendant to produce computer and cell phone used by decedent by shipping those devices from Jonesboro, Arkansas to St. Louis, Missouri (at cross-claim plaintiff’s expense) for forensic examination because cross-claim defendant’s production of copies of cell phone text messages and a non-forensic copy of the computer hard drive were insufficient to respond to plaintiff’s request for production of the devices themselves, since the copies did not allow for forensic examination of the devices, and because the slight inconvenience to cross-claim defendant in not having access to the cell phone and computer for a period of time was outweighed by the significant additional expense cross-claim plaintiff would incur if she were required to examine the devices in Jonesboro

Nature of Case: Probate matter

Electronic Data Involved: Computer and cell phone used by decedent

Fair Hous. Ctr. of S.W. Mich. V. Hunt, No. 1:09-cv-593, 2013 WL 5719152 (W.D. Mich. Oct. 21, 2013)

Dec 01 2013

Key Insight: Ruling on plaintiffs? motion for taxation of attorney?s fees and costs, magistrate judge concluded that, although plaintiffs? counsel was entitled to award of fees, fee request was unreasonable in part because the hours devoted to the case were excessive; magistrate judge harshly criticized counsel?s ?unreasonable zeal? and ?single-minded focus? on discovery of ESI: ?The level of effort expended by plaintiffs? counsel to track down the last responsive e-mail . . . was not reasonable in this case. It appeared to this court on more than one occasion that plaintiffs were treating the case as a litigation workshop on discovery of ESI rather than a lawsuit. This case did not involve discovery of patent records contained in Ford Motor Company?s super-computers. Rather, the subject matter of the litigation was an apartment complex in Kalamazoo, run by a marginally competent apartment manager who used a desktop and a laptop. He was often in over his head, especially with regard to record-keeping and computer use. Ninety-nine out of 100 lawyers would never consider making this case the occasion for extensive discovery of electronic evidence. And no client paying his or her own bills would ever authorize such an expensive hunt for marginal evidence.?

Nature of Case: Housing discrimination

Electronic Data Involved: ESI, email

In re Frazer/Exton Dev., L.P., 503 B.R. 620 (Bankr. E.D. Penn. 2013)

Dec 01 2013

Key Insight: Court denied debtors? motion to reopen their bankruptcy cases in order to obtain relief from settlement agreement with debtors? largest creditor and plan of reorganization because — notwithstanding that creditor failed to search all potential sources of ESI and failed to produce responsive documents in what court described as ?incompetent and reckless discovery foul-up? that should not have occurred — debtors could not, as a matter of law, obtain the relief they sought under Rule 60 and it would therefore be futile for the court to reopen the record for the purpose of allowing the debtors to file a time-barred Rule 60 motion

Nature of Case: Debtors sought to reopen their bankruptcy cases in order to obtain relief from settlement agreement and plan of reorganization

Electronic Data Involved: ESI

Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013)

Dec 01 2013

Key Insight: Upon receipt of ?dueling letters? concerning the inadvertent production of privileged information (which had been redacted but could be viewed in the metadata), the court noted that such an event emphasized ?the need for counsel for a producing party to keep a watchful eye over their e-discovery vendors,? but found that privilege was not waived because a Rule 502(d) order had been entered. Indeed, the court identified the ?one decretal paragraph? that stated that ?Defendants’ production of any documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by Defendants of any privilege applicable to those documents, including the attorney-client privilege ….? and concluded that, ?[a]ccordingly, [Defendant] ha[d] the right to claw back the minutes, no matter what the circumstances giving rise to their production were.? (Emphasis added.)

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

Thornton v. Morgan Stanley Smith Barney, LLC, No. 12-CV-298-JED-FHM, 2013 WL 1890706 (N.D. Okla. May 3, 2013)

Dec 01 2013

Key Insight: Where defendant sought to shift costs based on the expected expense of reviewing and producing the emails which was estimated to be more than $500,000, the court acknowledged that cost could be a legitimate basis for cost shifting under Rule 26(b)(2)(C), but found that the burden of the requested discovery did not outweigh its likely benefit and was not disproportionate to the case and also noted that the defendant had not established that ?a particular level of review is necessary in this case or that a ?claw back? agreement or [FRE] 502 order would not reduce or eliminate the estimated costs?

Electronic Data Involved: Email

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