Case Summaries – Page 91 – Electronic Discovery Law

Javeler Marine Servs. LLC v. Cross, 175 F.Supp.3d 756 (S.D. Tex. 2016)

Dec 01 2016

Key Insight: Addressing taxable costs, court concluded ?generally? that ?creating forensic images of Defendants? devices and conversion of the relevant imaged copies to TIFF format are within the rubric of ?making copies of any materials? under ? 1920(4) in this case, but are taxable costs only upon a showing they were ?necessarily obtained for use in the case.?? Court also held that the statute ?does not authorize taxation of expenses attributable to keyword searches.? Ultimately, the court concluded that in the present case the ?factual record? was ?insufficient? to determine the recoverable amount and ordered the submission of a revised, and more detailed, bill of costs.

Nature of Case: Claims based on alleged misappropriation of confidential information

Electronic Data Involved: Taxable Costs

Nelson v Am. Family Mut. Ins. Co., No. 13-cv-607 (SRN/SER), 2016 WL 6917205 (D. Minn. May 13, 2016)

Dec 01 2016

Key Insight: Relying on Plaintiffs? delay in raising its problems with discover and the principle of proportionality, particularly ?the importance of the discovery in resolving the issues and whether the burden of production outweighs the discovery?s likely benefits,? the court denied Plaintiff?s motion to compel additional pre-certification discovery; court?s analysis included rejection of proposed sampling where it was clear that ?sampling would be the beginning rather than the end, of this issue? and because of Plaintiffs? delay in making the suggestions (?But this type of proposal should lead to meaningful conversations during discovery, not at the end of it.?; ?To attempt to begin negotiations about discovery at the end of the discovery period demonstrates at best a lack of diligence and at worst a lack of respect for the Court?s scheduling order.)

Nature of Case: Class action

Electronic Data Involved: Database, email

Rodman v. Safeway, Inc., No. 11-cv-03003-JST, 2016 WL 5791210 (N.C. Cal. Oct. 4, 2016)

Dec 01 2016

Key Insight: Where an initial search of file names on a legacy drive (as opposed to the contents of the drive) did not identify ten responsive documents that were eventually produced after the close of discovery and a mere 7 days prior to trial, the court found that the search was an unreasonable inquiry under Rule 26(g) citing counsel?s failure to guide or monitor the employee conducting the search; the at-issue employee?s lack of experience conducting searches of large document repositories and the failure of counsel to ask the IT department to assist; and the objective unreasonableness of the search in light of the initial failure to search within the contents of the legacy drive and imposed monetary sanctions to address Plaintiff?s increased efforts as a result of the failure to timely produce the documents but reduced the award by 1/3 where Plaintiff would have had to expend some of the at-issue resources regardless and where Plaintiff failed to follow up when the employee who conducted the search indicated he did not know if he had searched within the files themselves

Electronic Data Involved: ESI from legacy drive

U.S. v. Wells Fargo Bank, No. 1:06-CV-0547-AT, 2016 WL 7365195 (N.D. Ga. May 26, 2016)

Dec 01 2016

Key Insight: The Court granted Defendant?s Motion for a Protective Order and held that under limited circumstances, a party may seek to share reasonable costs related to reviewing documents prior to their production. The Court considered vendor fees to be a valid target for cost-sharing under the facts of this case: discovery spanned more than a decade, the costs currently under review were a small fraction of the costs incurred by Defendant in discovery and there were no concerns that cost shifting would deter Relators or others. Further, Defendant showed that ?almost the entirety of its requested costs were incurred in attempting to respond to Relators? discovery requests, and not incurred as a result of a self-interested privilege review.?

Electronic Data Involved: Electronic mortgage loan files

Ye v. Veissman, Inc., No. 14-cv-01531, 2016 WL 950948 (N.D. Ill. Mar. 7, 2016)

Dec 01 2016

Key Insight: Where Defendants requested a full archive of social media contents from the decedent and her next of kin from 2007 through the date of Plaintiff?s death in April 2013, the court acknowledged that some social media content may be relevant to the claims and defenses at issue but found that where the request was not tailored to relevant content or limited to a reasonable period of time it was overbroad and Defendants? motion to compel was denied

Nature of Case: Wrongful death

Electronic Data Involved: Social media (Facebook)

E.E.O.C. v. The Amer. Coal Co., No. 3:15-cv-01293-SMY-PMF, 2016 WL 1639682 (S.D. Ill. Apr. 26, 2016)

Dec 01 2016

Key Insight: Where non-party argued that subpoena exceeded scope of EEOC?s authority because it sought information irrelevant to the claim of sex discrimination (e.g., information re: race) and was unduly burdensome because it would take the single HR Officer approximately 500 hours to respond and take her away from other important work for the corporation, the court found that the information sought was relevant (reasoning that the standard of relevance is broad and ?generous? and that the information could ?shed light on possible discriminatory hiring practices and thereby, lead to the discovery of admissible evidence?) and that the burden did not outweigh the benefit, reasoning that ?[[o]ther than the fact that its employment records are kept in paper format in southern Illinois, [the non-party] has not provided any reason as to why its corporate human resources department cannot assist in responding to the subpoena or why it could not hire temporary staff to assist.?

Nature of Case: Employment litigation: sex discrimination

Electronic Data Involved: Hard copy

BancPass, Inc. v. Highway Toll Admin., LLC, No. A-14-CV-1062-SS, 2016 WL 4031417 (W.D. Tex. July 26, 2016)

Dec 01 2016

Key Insight: Where, in email, the parties agreed to use certain search terms and one party produced all such hits except those deemed privileged while the other produced only relevant documents, court indicated that if it were to construe the emails as a binding contract, Defendant would be in breach, but found that it was not a contract and reasoned that there was no evidence that relevant documents were withheld nor that additional searches would produce more responsive documents, and thus denied Plaintiff?s motion to compel

Nature of Case: Defamation

Electronic Data Involved: ESI identified by agreed search terms

Archer v. York City Sch. Dist., No. 1:13-cv-2826, 2016 WL 7451562 (M.D. Pa. Dec. 28, 2016)

Dec 01 2016

Key Insight: Where Plaintiffs alleged spoliation resulting from school district?s deletion of former employee?s email account in accordance with its policy and more than 11 months before a complaint was filed, the court concluded that Plaintiffs presented ?no factual basis? in support of their allegations of intentional destruction of evidence favorable to Plaintiffs and declined to find that the school district?s decision not to renew the at-issue school?s charter was sufficient to trigger a duty to preserve such that the deletion would constitute spoliation (?Plaintiffs? argument that by the simple act of doing their jobs, Defendants should have been on notice of litigation that would not commence until nearly a full year later does not create knowledge that litigation is ?pending or probable.?)

Nature of Case: Claims arising from non-renewal of charter school’s charter

Electronic Data Involved: Former employee’s email account

Miller v. Bank of Am., N.A., 201 So.3d 1286 (Fl. Dist. Ct. App. 2016)

Dec 01 2016

Key Insight: On appeal from a final judgment of foreclosure, the Appellate Court found the Trial Court erred in admitting a screen shot of a computer-generated document purporting to reflect the sale of the mortgage note to Defendant, over Appellant?s hearsay objection. The original note was lost, so Appellee?s witness, who testified regarding the sale of the note, ?relied entirely upon a screen shot of a computer-generated document referred to as a Loan Transfer History (LNTH)? to establish Defendant?s right to foreclose. The witness testified she did not know who entered the information displayed in the screen shot, or if it was entirely computer generated. The Court held ?Ms. Allen?s affirmative answers to business record foundation questions do no overcome her demonstrated lack of knowledge about the creation, accuracy or trustworthiness of the LNTH document.?

Nature of Case: Foreclosure

Electronic Data Involved: Screen Shot

Colonial Bancgroup, Inc. v. Pricewaterhousecoopers LLP., No. 2:11-cv-746-WKW, 2016 WL 9687001 (M.D. Ala. Jan. 22, 2016)

Dec 01 2016

Key Insight: Where plaintiff sought production of specific folders from e-mail inboxes after defendant had already produced e-mails from those custodians as identified by keyword search terms r, the court found the request duplicative and denied plaintiff?s request. Where plaintiff sought to compel additional searches likely to capture information well beyond that to which plaintiff was entitled and resisted a compromise offer of running the searches with restrictive terms designed to weed out irrelevant information, the court granted the request for additional searches but also granted defendant?s request to include limiting terms to restrict the capture of irrelevant data. Where plaintiff requested a sworn affidavit detailing defendant?s litigation hold efforts including the ?specific actions? which hold notice recipients were directed to take and any enforcement efforts, the court agreed with defendant that specific actions and enforcement efforts were subject to attorney-client privilege but directed plaintiff to ?provide this information via ?sworn affidavit? in a manner which, does not invoke the work product doctrine or violate the attorney-client privilege OR to make a specific legal and factual showing [] as to any work product objection or attorney-client privilege claim? and also ordered production of the other requested information, including custodian names and document types subject to the hold.

Nature of Case: Professional Negligence

Electronic Data Involved: e-mail

Catagory:Case Summaries