Catagory:Case Summaries

1
No Sanctions for Failure to Preserve Disaster Recovery Back-up Tapes where Other Preservation Efforts were Reasonable “In the Context of This Case”
2
Court Grants Motion to Compel, Orders Forensic Imaging of Defendants’ Computers
3
For Discovery Violation of “Exotic Magnitude”, Court Denies Reconsideration of Order Compelling Production and Finding that Objections were Waived
4
Federal Circuit Addresses Dueling Rambus Opinions, Remands both for Further Consideration
5
Court Orders Payment of E-Discovery Costs Pursuant to Title 28 U.S.C. § 1920(4)
6
Court Orders Cooperation to Create ESI Protocol and Re-Production of ESI in Searchable Format
7
Court Declines to Hold that Lack of Written Litigation Hold Allows Presumption that Relevant Evidence was Lost or Destroyed
8
Court Declines to Compel Government to Contribute to Creation of Database to Ease Defendant’s Discovery Burden, Recommends Application for Assistance Pursuant to Criminal Justice Act
9
Court Rejects “Shifting Duty” Theory of Preservation, Denies Sanctions Absent Showing that Crucial Evidence was Destroyed in Bad Faith
10
Defendant’s Failure to Preserve Results in Sanctions, Including Order for Defense Counsel to Search All of Defendant’s Electronic Media and Hard Copy Files for Responsive Information

No Sanctions for Failure to Preserve Disaster Recovery Back-up Tapes where Other Preservation Efforts were Reasonable “In the Context of This Case”

Gaalla v. Citizens Med. Ctr., No. V-10-14, 2011 WL 2115670 (S.D. Tex. May 27, 2011)

Plaintiffs moved for sanctions based on defendant’s failure to preserve its disaster recovery back-up tapes, which were overwritten every seven or fourteen days, even after the filing of this lawsuit.  Further, “as the briefing developed,” plaintiffs “appeared to contend” that even absent a duty to preserve the disaster recovery back-up tapes themselves, “[defendant]’s failure to preserve the back-up tapes in conjunction with the failure to take timely ‘snapshots’… of relevant email accounts, and evidence that certain CMC employees had deleted emails from their account at some point in the past warrant[ed] severe sanctions.” 

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Court Grants Motion to Compel, Orders Forensic Imaging of Defendants’ Computers

Weatherford U.S., L.P. v. Innis, No. 4:09-cv-061, 2011 WL 2174045 (D.N.D. June 2, 2011)

Plaintiff alleged that a former employee had downloaded its confidential information and used it to “jump start” his own competing company.  Defendant Innis acknowledged that he had downloaded the information, but denied accessing or using it as plaintiff alleged.  Forensic examination of the thumb drive containing the downloaded information contradicted his claims.  Thereafter, plaintiff filed a motion to compel production of  materials previously identified in a subpoena duces tecum and, “to minimize disruption to defendants’ operations and alleviate their concerns about the disclosure of privileged communications,” proposed that an expert of plaintiff’s choosing be allowed to image defendants’ computers at plaintiff’s expense, and that defendants be allowed to screen the imaged documents prior to their production.  Citing Innis’s acknowledgment that he had copied plaintiff’s confidential information and evidence that he had accessed it thereafter, the court granted plaintiff’s motion to compel.

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For Discovery Violation of “Exotic Magnitude”, Court Denies Reconsideration of Order Compelling Production and Finding that Objections were Waived

DL v. District of Columbia, No. 05-1437 (RCL), 2011 WL 1770468 (D.D.C. May 9, 2011)

Upon learning that the District intended to produce email on a rolling basis even after trial had concluded despite two prior court orders compelling production, the court held that the District had waived all objections, including privileges, and ordered production within one week of the close of trial.  Defendants moved for reconsideration.  Likening the proposed production to “a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes,” the court denied the motion.

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Federal Circuit Addresses Dueling Rambus Opinions, Remands both for Further Consideration

Micron Tech., Inc. v. Rambus Inc., NO. 2009-1263, 2011 WL 1815975 (Fed. Cir. May 13, 2011) (Micron II); Hynix Semiconductor, Inc. v. Rambus Inc., Nos. 2009-1299, 2009-1347, 2011 WL 1815978 (Fed. Cir. May 13, 2011) (Hynix II)

Two federal courts analyzing nearly identical facts came to different conclusions regarding whether a party to both litigations had committed spoliation by destroying relevant documents.  Specifically, the courts differed in their determinations of when the duty to preserve arose, which hinged on when litigation was reasonably foreseeable.  One court issued significant sanctions and one court issued none.  On appeal, the Federal Circuit sought to clarify the analysis of when the duty to preserve was triggered and remanded both cases for further consideration.

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Court Orders Payment of E-Discovery Costs Pursuant to Title 28 U.S.C. § 1920(4)

Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., No. 2:07-cv-1294, 2011 WL 1748620 (W.D. Pa. May 6, 2011)

Following summary judgment, the Clerk of Court issued his Taxation of Costs which allowed for recovery of defendants’ e-discovery costs.  Plaintiffs objected, arguing that such costs were not taxable pursuant to Title 28 U.S.C. § 1920 and sought review of the issue.  Following careful analysis, the court upheld the determination of the Clerk of Court.

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Court Orders Cooperation to Create ESI Protocol and Re-Production of ESI in Searchable Format

In re Facebook PPC Adver. Litig., No. C09-3043 JF (HRL), 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011)

In this case, the court granted plaintiffs’ motion to compel Facebook’s participation in the creation of an ESI Protocol, despite Facebook’s resistance, and ordered that Facebook re-produce ESI in native format.  The court also prohibited Facebook’s use of Watchdox.com, a website on which Facebook had made available responsive documents, subject to its significant control (e.g., uploaded documents could not be printed and Facebook was able to track which documents had been reviewed and by whom).

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Court Declines to Hold that Lack of Written Litigation Hold Allows Presumption that Relevant Evidence was Lost or Destroyed

Steuben Foods, Inc. v. Country Gourmet Foods, LLC, No. 08-CV-561S(F), 2011 WL 1549450 (W.D.N.Y. Apr. 21, 2011)

Relying largely on the holding of Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., defendant argued that plaintiff’s failure to issue a written litigation hold and subsequent failure to produce three allegedly relevant emails allowed for a presumption that relevant evidence was lost, thereby warranting spoliation sanctions.  Declining to adopt such a holding, the court denied defendant’s motion for sanctions absent evidence that plaintiff was responsible for the destruction or loss of any relevant evidence.

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Court Declines to Compel Government to Contribute to Creation of Database to Ease Defendant’s Discovery Burden, Recommends Application for Assistance Pursuant to Criminal Justice Act

United States v. Salyer, Cr. No. S-10-0061 LKK [GGH], 2011 WL 1466887 (E.D. Cal. Apr. 18, 2011)

“Unlike the usual discovery dispute—not enough produced—the dispute between the parties [in this case] involves too much produced, in too many formats, and whether the defense has been given a fair opportunity within the parameters of an adversary system of criminal justice to make use of that discovery.”

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Court Rejects “Shifting Duty” Theory of Preservation, Denies Sanctions Absent Showing that Crucial Evidence was Destroyed in Bad Faith

Point Blank Solutions, Inc. v. Toyobo Am., Inc., No. 09-6116-CIV, 2011 WL 1456029 (S.D. Fla. Apr. 5, 2011)

Plaintiffs sought sanctions for defendants’ alleged spoliation of evidence, including email correspondence, communications with other body armor manufacturers, and internal communications, among other things.  Finding that plaintiffs failed to show that crucial evidence was destroyed in bad faith, as is required for an adverse inference in the 11th Circuit, the court denied plaintiffs’ motion for sanctions.

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Defendant’s Failure to Preserve Results in Sanctions, Including Order for Defense Counsel to Search All of Defendant’s Electronic Media and Hard Copy Files for Responsive Information

Northington v. H&M Int., No. 08-CV-6297, 2011 WL 663055 (N.D. Ill. Jan. 12, 2011); Northington v. H&M Int., No. 08 C 6297, 2011 WL 662727 (N.D. Ill. Feb. 14, 2011)

In this case, plaintiff sought sanctions for defendant’s failure to preserve and resulting failure to produce electronically stored information (“ESI”).  Upon finding that defendant’s efforts to preserve evidence had been “reckless and grossly negligent”, the magistrate judge recommended sanctions, including that defense counsel be required to conduct a thorough search for ESI and hard copy; that the jury be instructed regarding defendant’s failure to preserve; that defendant be precluded from defending itself by asserting an absence of discriminatory statements; and that defendant pay plaintiff’s reasonable costs and fees.  The recommendations were later adopted in full by the District Court.

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