Case Summaries – Page 182 – Electronic Discovery Law

Colgate-Palmolive Co. v. Tandem Indus., 485 Fed. Appx. 516 (3d Cir. 2012)

Dec 01 2012

Key Insight: Considering Defendant?s argument for an adverse inference where his former employer failed to produce his former work laptop and files, the court noted that the ?undisputed evidence show[ed] that Colgate destroyed the data on the laptop shortly after Flower?s retirement,? and concluded that: ?When data is destroyed pursuant to normal recordkeeping practices (and in particular when it is destroyed in relation to a major event like an employee?s retirement), no adverse inference is warranted.?

Nature of Case: Breach of fiduciary duty

Electronic Data Involved: Laptop and its files

FTC v. Lights of America, Inc., No. SACV 10-1333 (JVS) (MLGx), 2012 WL 695008 (C.D. Cal. Jan. 20, 2012)

Dec 01 2012

Key Insight: Court held plaintiff was not obligated to issue a litigation hold at the beginning of its full-phase investigation or upon the issuance of a CID because litigation was not reasonably foreseeable at those times, noting that the duty to preserve attaches when litigation is probable, which means ?more than a possibility?; court declined to order sanctions related to plaintiff?s auto-delete policy where the policy called for the preservation of relevant ESI and the deletion of duplicates and indicated that even if the policy resulted in the inadvertent loss of email, there was no evidence of bad faith, and cited Rule 37(e) re: safe harbor; court declined to impose sanctions for failure to issue a litigation hold over documents not in the plaintiff?s possession or control

Nature of Case: Government investigation

Electronic Data Involved: ESI

FDIC v. Appleton, No. CV-11-476-JAK (PLAx), 2014 WL 10245383 (C.D. Cal. Nov. 29, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced Relativity database with some 700,000 documents culled from its main server using search terms, and defendants complained there was no apparent logic to database and they could not tell what documents were responsive to what requests, court sided with defendants and ordered plaintiff to create files in Relativity into which it would place documents responsive to each particular request

Nature of Case: Receiver brought action against former officers and directors of failed bank

Electronic Data Involved: ESI

Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012)

Dec 01 2012

Key Insight: On petition for discretionary review, Court of Criminal Appeals affirmed appeals court?s finding that state proffered sufficient evidence to establish a prima facie showing that social-networking webpage offered into evidence was authored by the defendant based upon sufficient circumstantial evidence to ?support a finding that the exhibits were that they were purported to be?; court?s opinion discussed proper procedures for authenticating evidence

Nature of Case: Criminal

Electronic Data Involved: Social Media Content (e.g., MySpace.com)

Kruse Tech. P?ship v. Daimler AG, No. SACV 10-1066 JVS (RNBx), 2012 WL 12888668 (C.D. Cal. Oct. 22, 2012)

Dec 01 2012

Key Insight: Defendant moved to re-tax $202K of costs for exemplification and reproduction that were denied by the clerk. The court found that costs of copies provided to Defendant?s witnesses were not necessary or taxable because they were not requested by or tendered to the opposing party, as discussed in In re Ricoh Co., Ltd. Patent Litig., 661 F.3d 1361, 1368 (Fed. Cir. 2011). The court allowed $12.013.68 in XDD?s costs for converting documents to TIFF, performing OCR (required by court order) and producing the documents to Plaintiff. Defendant argued costs from third-party vendor IAV for storage of responsive documents and processes to allow digital searching of Defendant?s databases should have been allowed by the clerk. Plaintiff argued these were costs for collection and review of documents, rather than for copying. Plaintiff also argued the OCR fees were duplicative and that Defendant?s invoices did not provide sufficient detail to support taxation. The court found these costs were not taxable (searching and organizing rather than copying, as well as duplicative) and properly denied by the clerk.

Nature of Case: Taxable Costs

Electronic Data Involved: ESI

Eisai v. Sanofi-Aventis U.S., LLC, No. 08-4168 (MLC), 2012 WL 1299379 (D.N.J. Apr. 16, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motions to compel discovery from an additional 175 custodians and an additional 27 custodians (two separate requests) upon its determination that the requests were cumulative or duplicative and that the burden outweighed the potential benefit; of note was the significant expenditures of the defendants on already-produced discovery and the volumes produced as well as the estimated cost of the additional requested discovery, where the estimated burden of producing the additional 175 custodians was 140,00 hours of manpower and roughly $15 million dollars?an amount that exceeded the expected value of plaintiff?s claim

Electronic Data Involved: ESI from 200+ custodians

Gray v. Novell, Inc., No. 8:06-CV-1950-T-33TGW, 2012 WL 3886026 (M.D. Fla. Sept. 6, 2012)

Dec 01 2012

Key Insight: Where defendant failed to explain why conversion and printing of all of plaintiff?s electronically produced discovery was necessary, court declined to allow defendant to recover those costs

Electronic Data Involved: Costs related to printing of ESI

Pacificorp v. N.W. Pipeline GP, No. 3:10-cv-00099-PK, 2012 WL 6131558 (D. Or. Dec. 10, 2012)

Dec 01 2012

Key Insight: Addressing issue of taxable costs related to electronic discovery, court allowed recovery of costs related to ?converting already selected files into a database,? bates stamping, conversion to searchable PDF, and storage of electronic data but denied recovery as to collecting documents and culling them for responsiveness

Electronic Data Involved: Taxable costs related to ESI

MC Asset Recovery LLC v. Castex Energy, Inc., NO. 4:07-CV-076-Y, 2012 WL 12919263 (N.D. Tex. April 26, 2012)

Dec 01 2012

Key Insight: Court acknowledged that the parties could have communicated better to resolve the issue, but granted Plaintiff?s motion to compel re-production of ESI in .tiff format with a summation load file (including metadata) where Plaintiff indicated issues with Defendant?s production but where Defendant failed to timely follow up and then voluntarily re-produced ESI but not in a format that included metadata; the court also noted the strong showing that the metadata would be useful in the case and Plaintiff?s willingness to substantially narrow the number of documents sought, thus reducing the burden of production

Electronic Data Involved: ESI with metadata

Bull v. United Parcel Service, Inc., 665 F.3d (3d Cir. 2012)

Dec 01 2012

Key Insight: Circuit court found that ?producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information,? but also found that in the present case the District Court abused its discretion ?in ruling that, within its spoliation analysis, Bull intentionally withheld the original documents from UPS? and further abused its discretion when it imposed the sanction of dismissal with prejudice

Nature of Case: Employment litigation

Electronic Data Involved: Copies of hardcopy doctor’s notes

Catagory:Case Summaries