Case Summaries – Page 187 – Electronic Discovery Law

Lab. Corp. of Am. v. United States, —Fed. Cl.—, 2012 WL 6861487 (Fed. Cl. Dec. 21, 2012)

Dec 01 2012

Key Insight: Where plaintiff sought sanctions for defendant?s automatic purge of contents from a relevant website following closure of bidding process, court found defendant was on notice of obligation to preserve by virtue of Federal Acquisition Regulations requiring preservation of ?all the contract documents associated with procurement,? that the United States had been negligent in failing to preserve the information, and that plaintiff was prejudiced and, focusing on the need to impose the least harsh sanction, ordered that defendant would be prohibited from relying upon any secondary evidence regarding what Plaintiff saw on the relevant website (the question of what Plaintiff saw on the website and therefore what Plaintiff knew was a major issue in the case)

Nature of Case: Pre-award bid protest

Electronic Data Involved: Contents of website used to submit bids

Yeung v. Dickman, No. 1 CA-CV 11-0735 (Ariz. Ct. App. Dec. 18, 2012)

Dec 01 2012

Key Insight: Noting that the ?offending party?s degree of fault and the corresponding prejudice suffered by the non-offending party? were the ?most important? factors for consideration when determining whether to impose sanctions, court denied request for spoliation sanctions where the information Plaintiff alleged was spoliated was not relevant to the issues in the case, where Plaintiff merely speculated that the lost information would support his case, and where Plaintiff could have obtained the information from third parties but chose not to

Nature of Case: Defamation

Electronic Data Involved: Hard drives containing certain allegedly relevant communications

Townsend v. Ohio Dept. of Transp., No. 11AP-672, 2012 WL 2467047 (Ohio Ct. App. June 28, 2012)

Dec 01 2012

Key Insight: Trial court abused its discretion in denying motion to conduct forensic analysis of defendant?s email and electronic data systems where defendant?s employee admitted to sending a highly relevant email that was never produced and where defendant failed to establish that production ?would incur undue burden or expense?; court?s analysis included consideration of whether deleted emails were discoverable (yes) and the need for a protocol to protect the producing party?s privilege, confidential information

Nature of Case: Personal injury resulting from auto accident

Electronic Data Involved: Email

Finnerty v. Stiefel Labs. Inc., 900 F. Supp. 2d 1317 (S.D. Fla. 2012)

Dec 01 2012

Key Insight: Court held that costs related to the creation of an electronic database solely for the benefit of Plaintiff?s counsel were not taxable as fees for exemplification

Nature of Case: Securities fraud

Electronic Data Involved: Taxable costs

In re Application of Wilson & Partners, No. 06-cv-02575-MKS-KMT, 2012 WL 1901217 (D. Colo. May 24, 2012)

Dec 01 2012

Key Insight: Court found that third party failed to establish the reasonableness or necessity of attorney?s fees related to setting up a database to assist in production, including dealing with administrator of that database and thus upheld recommendation against recovery of attorney?s fees; court affirmed recommendation against recovery of costs related to manual review and production that resulted from abandonment of the document database (because of problems with the database) where the Magistrate Judge determined the review was an ?unnecessarily incurred expense, which [the requesting party] had no ability to control or contain;? court adopted recommendation ordering that third party respondents be responsible for half the cost of the database

Ohio Valley Environ. Coalition, Inc. v U.S. Army Corps of Eng?gs, No. 1:11MC35, 2012 WL 112325 (N.D. W. Va. Jan. 12, 2012)

Dec 01 2012

Key Insight: Where non-party represented that responding to subpoena would be burdensome in light of need to comb through vast amounts of ESI which had not been organized in anticipation of litigation, court determined such representations constituted ?blanket assertions? but failed to meet the high burden of showing, with particularity, the source and extent of the burden claimed and declined to quash the subpoena for that reason

Electronic Data Involved: Research materials from university professor

FTC v. Johnson, No. 2:10-cv-02203-RLH-GWF, 2012 WL 2138108 (D. Nev. June 12, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced documents as kept in the usual course of business and labeled some documents to correspond to certain requests and where plaintiff included ?a searchable concordance and an index that identifies the document?s source, description, and date range? the court found that the production complied with Rule 34 and denied defendant?s motion to compel plaintiff to ?respond to the requests for production of documents with organized and related responses?

Electronic Data Involved: ESI

Hanwha Azdel, Inc. v. C&D Zodiac, Inc., No. 6:12-cv-00023, 2012 WL 6726412 (W.D. Va. Dec. 27, 2012)

Dec 01 2012

Key Insight: Where Defendant produced forty gigabytes of material on a single memory stick organized into folders by search term, with no other organization by custodian or otherwise, court noted that ?[o]rganizing a production to reflect how the information is kept ?in the usual course of business? sometimes requires the producing party to include different identifying information according to the type of document or file produced,? and that ?[e]mails specifically are produced in the usual course of business when responsive emails are arranged ?by custodian, in chronological order and with attachments, if any?? and found that the production was not in an appropriate format in this case; court ordered Defendant to bear the costs to convert the ESI into a readily usable format (estimated to be $8,463.00)

Electronic Data Involved: ESI

Blythe v. Bell, No. 11 CVS 933, 2012 WL 3061862 (N.C. Sup. Ct. July 26, 2012)

Dec 01 2012

Key Insight: Where defendants hired an inexperienced vendor/consultant to identify potentially responsive ESI using search terms provided by plaintiffs and produced 3.5 million documents (which included privileged information) without further review save the attempted removal of documents containing the ?hickorylaw.com? extension (which proved unsuccessful), the court acknowledged a five-factor test to analyze the question of waiver, indicated the question of whether reasonable precautions were taken was controlling, and found that privilege had been waived where defendants’ efforts to guard against waiver were insufficient, particularly in light of the high volume of ESI which should have prompted more diligent efforts; court considered whether waiver was appropriate where defendants sought assistance from an outside consultant but found that counsel?s supervision of that consultant was insufficient: ?But, the court also concludes that efforts by a consultant demand a degree of oversight that is absent here.?

Electronic Data Involved: ESI

Indep. Mktg. Group, Inc. v. Keen, No. 3:11-cv-447-J-25MCR, 2012 WL 207032 (M.D. Fla. Jan. 24, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced ESI as documents compiled onto just a few PDF files that lacked metadata or searchable text by printing the ESI and then scanning it for production and resisted reproduction on the grounds of undue burden based on the estimated $10,000 cost of doing so, the court found that the ESI was not produced as ordinarily kept or in a reasonably usable format and further declined to find the information was not reasonably accessible or, if it was, that good cause had been shown to compel reproduction

Nature of Case: Breach of fiduciary duties, tortious interference with business relationships, fraud, breach of contract, conversion, and replevin

Electronic Data Involved: ESI

Catagory:Case Summaries