Case Summaries – Page 175 – Electronic Discovery Law

Haskins v. First Amer. Title Ins. Co., No. 10-5044 (RMB/JS), 2012 WL 5183908 (D.N.J. Oct. 18, 2012)

Dec 01 2012

Key Insight: Court found defendant had control over files in the possession of ?independent title agents? where contracts with those agents provided defendant the right to access those files; because ?control? was established for purposes of discovery, court ordered defendant to serve a litigation hold on present and former title agents with contracts similar to those examined by the court (which established control) who sold the at-issue title insurance within the relevant time frame

Nature of Case: Alleged scheme to overcharge for title insurance

Electronic Data Involved: ESI in possession of independent title agents

United States v. Briggs, No. 10-CR-184S, 2012 WL 5866574 (W.D.N.Y. Nov. 16, 2012)

Dec 01 2012

Key Insight: Court adopted lower court?s report and recommendation which denied defendant?s motion for sanctions related to the government?s discovery behaviors, including its production of ESI in searchable PDF but without the ability to manipulate the data, which defendant alleged failed to comply with the courts? prior order; court?s opinion, like prior opinions in this case, made clear the difficulties associated with a lack of controlling e-discovery case law/guidelines in criminal cases and put the Government ?on notice? that the Court would ?not hesitate to scrutinize the Government?s ESI discovery procedures to ensure responsiveness and fairness.?

Nature of Case: Criminal

Electronic Data Involved: Database, esi

Sikorsky Aircraft Corp. v. United States, 106 Fed. Cl. 571 (Fed. Cl. 2012)

Dec 01 2012

Key Insight: Court held that the deliberative process privilege was subject to a timeliness requirement and, where government asserted the possibility that documents used at deposition were subject to the deliberative process privileged at the end of a deposition but waited ?roughly six months? to definitively assert the privilege and another ?nearly four months? to communicate that assertion to Plaintiff, the court held the privilege had been waived

Nature of Case: Alleged violation of Cost Accounting Standards

Electronic Data Involved: String of emails

Davis v. Rouse, No. WDQ-08-cv-3106, 2012 WL 3059569 (D. Md. July 25, 2012)

Dec 01 2012

Key Insight: Where defendant produced more than 61,000 pages of emails but, when faced with Plaintiff?s motion for spoliation sanctions, could not explain how the search for ESI had been conducted (by a vendor) and subsequently produced only 11,411 pages of emails after being ordered to re-run the search, the court imposed sanctions of reasonable attorneys? fees and costs incurred by Plaintiff?s counsel to review the initial large production of emails containing many non-responsive documents and found counsel for plaintiff was also entitled to recover ?some proportional and reasonable? attorneys? fees and costs for litigating the underlying motion for sanctions which brought the overproduction to light

Nature of Case: Allegations of assault pursuant to 42 USC 1983

Electronic Data Involved: Emails

In re Subpoena to Creeden & Assocs., No. 12C 5573, 2012 WL 4580841 (N.D. Ill. Sept. 28, 2012)

Dec 01 2012

Key Insight: Addressing plaintiff?s motion to enforce a subpoena, the court focused on the issue of the burden to the third party and granted plaintiff?s motion as to the requests for production with some limitations and also conducted an 8-part cost shifting analysis which resulted in the court?s order that plaintiff was to bear 60 of the third party?s ?staff research and production costs? and 30 of the third party?s ?legal costs?; court indicated that the ?lower legal percentage [was] a reflection of what the Court believe[d] was [the third-party?s] recalcitrance to meaningfully participate in legal negotiations concerning discovery thus far? and that ?[t]he lower legal fee-shifting amount is also an attempt to get [the third party] to object only to those points it really cares about?

Nature of Case: Antitrust

Danny Lynn Elec. V. Veolia Es Solid Waste, No. 2:09CV192-MHT, 2012 WL 786843 (M.D. Ala. Mar. 9, 2012)

Dec 01 2012

Key Insight: Court denied motion for spoliation sanctions where it was unclear that any spoliation had even occurred in light of defendants? backup system, where the court concluded that defendants had not acted in bad faith (but had instead ?expended great effort to insure that plaintiffs receive information from both their live and archived email system ??), and where the degree of prejudice was minimal (assuming spoliation occurred) in light of the significant other discovery that was produced

Electronic Data Involved: Email

Vietnam Veterans of Am. v. Central Intelligence Agency, No. 09-cv-0037 CW (JSC), 2012 WL 2375490 (N.D. Cal. June 22, 2012)

Dec 01 2012

Key Insight: In dispute over 24 40-year old magnetic tapes, 6 of which defendants had attempted to restore with only partial success (contents of 2 of the 6 tapes were recovered), the court found the information on the tapes to be not reasonably accessible in light of the significant but only partially successful recovery efforts but, recognizing the potential relevance of the contents, ordered that plaintiff would be allowed to attempt recovery (using outside vendors with sufficient security clearance) at their own expense and that if recovery was successful, the court would consider a cost-shifting motion

Electronic Data Involved: 40-year old magnetic tapes

Cannata v. Wyndham Worldwide Corp., No. 2:10-cv-00068-PMP-VCF, 2012 WL 528224 (D. Nev. Feb. 17, 2012)

Dec 01 2012

Key Insight: Where parties could not agree on search protocol, including the number of custodians and number of search terms and whether ?terms of a sexual nature? should be included as search terms, the court appointed a special master to resolve the dispute, split the costs of the special master (unevenly) between the parties, and ordered that if the number of terms and custodians combined exceeded 40, plaintiff would reimburse 5% of defendant?s e-Discovery compliance costs for each occurrence (e.g., if the final search involved 22 custodians and 25 sites, plaintiffs would be responsible for 25% of defendants? cost [7 x 5%]); because sexual harassment related claims were at issue, ?ESI containing sexual terms is discoverable?

Nature of Case: Sexual harassment, sexual discrimination, hostile work environment

Electronic Data Involved: ESI

Frye v. Baptist Mem?l Hosp., No. 07-2708, 2012 WL 1022034 (W.D. Tenn. Mar. 26, 2012)

Dec 01 2012

Key Insight: District Court approved recovery of costs related to ?OCR Capture?

Nature of Case: Taxable costs

Electronic Data Involved: OCR

Brooks v. Ohio State Chiropractic Board, No. 2:12-cv-225, 2012 WL 1429386 (S.D. Ohio Apr. 25, 2012)

Dec 01 2012

Key Insight: Where plaintiff failed to establish the likelihood of his success on the merits or that he would suffer immediate irreparable harm absent injunctive relief, the court denied plaintiff?s motion for a temporary restraining order and/or preliminary injunction; as to the likelihood of irreparable harm, the court?s analysis focused in part on other mechanisms to ensure preservation, including a specific demand for preservation which the plaintiff had already utilized and the threat of sanctions for failure to preserve

Nature of Case: Claims arising from plaintiff’s placement on administrative leave and defendant’s seizure of his property

Electronic Data Involved: ESI

Catagory:Case Summaries