Key Insight: Award of attorney?s fees for investigation into possibility of spoliation where defendant failed to institute a litigation hold was proper, even where no spoliation was established, because the ?non-breaching party still has suffered damages in the context of attorneys? fees and costs? as a result of the need to perform the investigation
Electronic Data Involved: ESI
Key Insight: Court addressed a myriad of discovery disputes related to privilege logs, format of production, adequacy of plaintiff?s search for responsive materials, and the adequacy of its responses to defendant?s requests and ruled, among other things, that: plaintiff?s production in PDF was unacceptable and that production must be in native format or in the format requested by defendant and that plaintiff?s counsel?s statements (related to the court by sworn affidavit from defendant) were sufficient to put the adequacy of his compliance with Rule 26(g) in question and require production of plaintiff?s search strategy, including its interaction with counsel; court also compelled responses to a myriad of individual requests and ordered plaintiff to pay 80% of defendant?s fees in bringing this motion
Electronic Data Involved: ESI
Key Insight: Relying heavily on Ameriwood Industries v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291 (E.D. Mo. Dec. 27, 2006), court ordered the discovery of ESI on defendant?s computers in accordance with three-step procedure: 1) imaging of hard drive by forensic expert, 2) recovery of ESI from that image, 3) defense counsel?s review and production of responsive non-privilege information; upon parties? disagreement regarding search terms to be utilized in step three, court rejected defendant?s arguments that plaintiff?s proposed terms would result in an ?unreasonable number of irrelevant results? and the production of privilege information and also rejected defendant?s proposed search terms as too narrow, where defendant proposed that only exact matches, including in capitalization and phrasing, be considered
Nature of Case: Copyright infringement, trade secret misappropria-tion, breach of contract, breach of fiduciary duty, and other related claims
Electronic Data Involved: Contents of hard drive
Key Insight: Addressing whether GE would be required to restore, search, and produce responsive contents of hundreds of backup tapes, court found that the data on the backup tapes was not reasonably accessible because of the significant expense of restoring and searching the tapes and further found that defendant did not show good cause to compel restoration and production, particularly where defendant failed to provide any evidence of the presence of unique, responsive documents on the tapes
Nature of Case: patent infringement
Electronic Data Involved: backup tapes
Key Insight: Court denied plaintiff?s motion for an adverse inference for defendant?s loss of potentially relevant video surveillance tape where plaintiff failed to articulate how the tape would depict anything not already represented in available still photos and thus did not establish that the tape was sufficiently relevant to warrant the requested sanction; court ordered plaintiff was entitled to attorneys? fees and costs for the motion and for her efforts to determine whether the accident had been recorded
Nature of Case: Slip and Fall
Electronic Data Involved: Video surveillance tape
Key Insight: Where third-party provider of online psychic services represented that plaintiff would be able to access most of the information requested by defendant if she re-opened her account, the court ordered that plaintiff do so, and promptly produce all responsive information; as to information not available to plaintiff, court indicated that defendant may be provided opportunity to require plaintiff to provide authorization to third party to release such information
Nature of Case: Employment Discrimination
Electronic Data Involved: Records related to sessions with online psychic
Key Insight: The appellate court held that the trial court had erred in admitting appellant?s cellular phone into evidence and in granting opposing counsels? oral motion for forensic examination of that phone where the phone was initially surrendered by appellant to allow for the reading of particular, relevant, messages and not requested by a formal discovery request as is required by law, where appellant had no opportunity to object to the scope of the production or to assert his privileges and where the rules of discovery require the least intrusive means of retrieval and direct access to devices is discouraged
Nature of Case: Child custody
Electronic Data Involved: Cellular phone and contents
Key Insight: Where Plaintiff served a subpoena seeking identifying information related to one defendant and 350 ?co-conspirators? who plaintiff alleged engaged in a conspiracy to unlawfully download Plaintiff?s movie (using the BitTorrent protocol) and Comcast objected on the grounds of undue burden, among other things, the D.C. Court (the court from which the subpoena was issued) treated Comcast?s objections as a motion to quash and found that the burden of issuing the subpoena would result in undue burden to Comcast, to the defendant and to the 350 ?co-conspirators? who did not reside in the forum because they would be subjected to undue inconvenience of litigating any objections in a ?distant forum? and denied Plaintiff?s request but, recognizing Plaintiff?s efforts and interest in litigating the case, ordered Comcast to provide information related to alleged co-conspirators city and state of residence, but not identifying information, which Comcast could do without undue burden and which would allow plaintiff to seek the identifying information of the alleged co-conspirators in the jurisdiction in which they lived
Nature of Case: Copyright infringement
Electronic Data Involved: Identifying information related to ISP subscribers
Key Insight: Court granted motion to compel ?electronically stored information, electronic mail, and social networking data? related to the issues raised in this case and, noting plaintiffs ?direct access? to the information requested, declined to require defendant to seek the information from the relevant service providers
Nature of Case: Employment litigation
Electronic Data Involved: Email, Social media content
Key Insight: Magistrate Judge recommended the adoption of the approach of the Third Circuit in Race Tires Am. Inc. v. Hoosier Racing Tire Corp., which limits the recoverable costs related to electronic discovery pursuant to 28 U.S.C. ? 1920 and thus granted in part plaintiffs? motion to disallow costs
Nature of Case: Business tort claims
Electronic Data Involved: Taxable costs related to production of ESI
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