Catagory:Case Summaries

1
Court Finds Foreign Discovery “Marginally Relevant” and “Not Proportional,” Declines to Compel Search
2
Reed v. Kindercare Learning Centers, et al. (W.D. Wash., 2016)
3
Venturedyne v. Carbonyx (ND Ind., 2016)
4
Despite Intentional Spoliation, $25 Million Verdict Stands
5
Nkansah v. Martinez (Middle District of Lousiana, 2016)
6
Companion Property and Casualty Insurance Company v. U.S. Bank N.A. (D. S.C., 2016)
7
Johnson v. Serenity Transportation, Inc. (ND Cal, 2016)
8
Court Orders Two Permissive Adverse Inferences at Trial
9
In re Viagra Products Liability Litigation (N.D. Cal., 2016)
10
Court Compels Cooperation Regarding Search Terms

Court Finds Foreign Discovery “Marginally Relevant” and “Not Proportional,” Declines to Compel Search

In re Bard IVC Filters Prod. Liab. Litig., —F.R.D.—, 2016 WL 4943393 (D. Ariz. Sept. 16, 2016)

In this case, the parties disagreed on the discoverability of communications between Defendants’ foreign subsidiaries and divisions and foreign regulators regarding the filters at issue in the case.  Following analysis of the effects of the December 1, 2015 amendments on Fed. R. Civ. P. 26(b)(1) and of the specific facts of the case, US District Court Judge David Campbell—Chair of the Committee on Rules of Practice and Procedure—determined that the at-issue communications were “only marginally relevant” and was persuaded that “the burden of [the] foreign discovery would be substantial.”  Thus, the court concluded that Defendants were not required to search their foreign entities for communications with foreign regulators.

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Reed v. Kindercare Learning Centers, et al. (W.D. Wash., 2016)

Key Insight: imperfect and slow, gradual production not sanctioned

Nature of Case: disability discrimination, failure to accommodate, retaliation, ? 1983 violations, and wrongful termination in violation of public policy

Electronic Data Involved: emails

Keywords: flawed retention policies,

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Venturedyne v. Carbonyx (ND Ind., 2016)

Key Insight: Specific metrics needed to object to the burden of a key-word search. Defendant objected to document requests on relevancy grounds.

Nature of Case: Contract breach.

Electronic Data Involved: Key-word search of ESI.

Keywords: Cooperation and the negotiation of keywords. Transparency in all aspects of preservation and production of ESI.

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Despite Intentional Spoliation, $25 Million Verdict Stands

BMG Rights Mgmt. LLC v. Cox Commc’ns, Inc., —F. Supp. 3d—, 2016 WL 4224964 (E.D. Va. Aug. 8, 2016)

In this copyright infringement case, Plaintiff was found to have intentionally spoliated material evidence, resulting in sanctions. Specifically, Defendant was allowed to address the issue of spoliation in its opening statement and the jury was instructed that it may, but was not required to, consider “the absence” of earlier versions of source code relied upon by Plaintiff’s agent to identify and provide notice of infringement by Defendant’s customers.  Despite the sanctions, Plaintiff was awarded $25 million upon the jury’s determination that Defendant—a conduit internet service provider—was liable for willful contributory infringement of Plaintiff’s copyrighted musical works.  In a motion for a new trial, Defendant argued, among other things, that the sanctions were insufficient.  The district judge rejected that argument (and others), denied the motion, and entered final judgement in accordance with the verdict.

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Nkansah v. Martinez (Middle District of Lousiana, 2016)

Key Insight: Even broadly worded discovery requests can be granted as long as the information is relevant to discovery and no objections are made

Nature of Case: Automobile accident insurance coverage

Electronic Data Involved: Electronic records

Keywords: Truck, accident, insurance

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Johnson v. Serenity Transportation, Inc. (ND Cal, 2016)

Key Insight: Discovery is not disproportionate just because you say so. Insufficient privilege log.

Nature of Case: Class action involving alleged improper classification of independent contractor status.

Electronic Data Involved: Production of emails in response to Plaintiffs’ requests.

Keywords: Produce all documents responsive to Plaintiff’s search terms. Duplicative and not proportional.

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Court Orders Two Permissive Adverse Inferences at Trial

First Fin. Sec., Inc. v. Freedom Equity Grp., LLC, No. 15-cv-1893-HRL, 2016 WL 5870218 (N.D. Cal. Oct. 7, 2016)

In this case, the court imposed two permissive adverse inference instructions against Defendant at trial.  The first adverse inference was ordered pursuant to FRCP 37(e)(2) for Defendant’s failure to preserve text messages.  The second was imposed pursuant to FRCP 37(b)(2) (authorizing the court to “remedy the violation of a discovery order with a ‘just’ sanction”), upon the court’s conclusion that Defendant’s failure to produce certain native-format data, despite being repeatedly ordered to do so, resulted in substantial prejudice to the Plaintiff.  In so concluding, the court rejected the argument that it was required to find bad faith, reasoning instead that it could impose such a sanction upon a determination of gross negligence.

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In re Viagra Products Liability Litigation (N.D. Cal., 2016)

Key Insight: whether party can be forced to use TAR v. search terms

Nature of Case: product liability

Electronic Data Involved: email and documents

Keywords: viagara, forced TAR

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Court Compels Cooperation Regarding Search Terms

Pyle v. Selective Ins. Co. of Am., No. 2:16-cv-335, 2016 WL 5661749 (W.D. Pa. Sept. 30, 2016)

In this case, the court granted Defendant’s motion to compel Plaintiff’s cooperation regarding search terms intended to identify responsive emails requested by the plaintiff.  Notably, in response to Defendant’s motion, Plaintiff’s counsel argued that Defendant had “cited no authority to support its request, nor identified any burden that it face[d] in locating and producing the requested emails.”  Reasoning that Plaintiff’s argument “totally misses the mark” the court concluded that the parties must confer:

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