Key Insight: NDA adequately protects confidential and/or privileged information during forensic examination
Nature of Case: employment discrimination
Electronic Data Involved: email
Keywords: forensic examination
Key Insight: no adverse inference for inadvertent destruction of evidence
Nature of Case: Fair Debt Collection Practices Act (FDCPA)
Electronic Data Involved: ledgers
Keywords: condo association
First Niagara Risk Mgmt., Inc. v. Folino, —F.R.D.—, 2016 WL 4247654 (E.D. Pa. Aug. 11, 2016)
In this case, the court addressed the parties’ disagreement regarding a proper scope of discovery and Plaintiff’s related motion to compel the search of Defendant’s electronic devices, to be conducted by an independent e-Discovery vendor utilizing search terms proposed by the plaintiff. Upon finding the requested information relevant and following consideration of each of the proportionality factors identified in recently amended Rule 26(b)(1), the court granted Plaintiff’s motion to compel.
Key Insight: Sanctions for delays caused by bad faith reliance on a vendor for a small production.
Nature of Case: discovery delays
Electronic Data Involved: archived e-mail
Keywords: discovery delay, discovery vendor, small production, bad faith
Key Insight: If a party claims no responsive documents are found, they must provide a response that indicates the steps taken to determine that no responsive documents exist
Nature of Case: Prisoner self harm
Electronic Data Involved: E-mails
Keywords: Prisoner, self harm, pro se,
Key Insight: Oracle’s lawyers did not read the ESI produced to them, and instead accused Google of withholding critical evidence (that had been produced).
Nature of Case: Copyright infringement.
Electronic Data Involved: ESI produced by Google.
Keywords: This case shows the critical importance of electronic document review. Discovery-concealment misconduct.
Erhart v. Bofl Holding, Inc., No. 15-cv-02287-BAS(NLS), 2016 WL 5110453 (S.D. Cal. Sept. 21, 2016)
In this case, the court declined to impose spoliation sanctions for Plaintiff’s deletion of ESI from numerous electronic devices where the majority of the information at issue could be recovered or was duplicated in another location (including the defendant’s systems) and thus was not “destroyed,” and where the prejudice resulting from the few files that could not be recovered was minimal.
Key Insight: The special master considered relevancy to be as broad as the subject matter, which is broader than the scope of discovery contemplated by Rule 26… did not satisfy its burden to show that the information it requests from Highmark is relevant, the court is not required to analyze whether that request is proportional to this case
Nature of Case: Antitrust
Keywords: Reasonably Calculated
Key Insight: proportionality with regards to relevancy
Nature of Case: Products Liability
Electronic Data Involved: Communications between foreign entities that sell the product and foreign regulatory bodies regarding the products
Keywords: Proportionality, marginally relevant, relevancy
Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB, 2016 WL 4061575 (W.D. Wash. July 29, 2016)
In this case, Defendant successfully established that retrieving archived emails from disaster recovery backup tapes “would result in an undue burden and cost” pursuant to Fed. R. Civ. P. 26(b)(2)(B). Although Plaintiff was unable to establish good cause to compel production, the court indicated that the archived emails were nonetheless “‘discoverable’ under Fed. R. Civ. P. 26(b)(1)” and ordered that “upon a request by Plaintiff, Defendant should facilitate access to the discovery” but that Plaintiff would bear the expense, payable in advance.
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