Electronic Discovery Law – Page 102 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Court Shifts Costs to Discover Emails from Backup Tapes

Sep 13 2016

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.

Trude v. Glenwood State Bank (Min. App., 2016)

Sep 08 2016

Key Insight: sanctions affirmed for discovery violations including using data wiping software to delete files

Nature of Case: repossession

Electronic Data Involved: deleted electronic records

Keywords: earth moving equipment repossession, deleted computer files, data wiping

Identified State Rule(s): Minnesota Rule of Civil Procedure 60.02

View Case Opinion

Portland Pipe Line Corp. et al. v. City of South Portland et al. (D. Maine, 2016)

Sep 08 2016

Key Insight: Two step process of TAR and manual review of privilege negated need for in camera review

Nature of Case: declaratory relief re environmental ordinance

Electronic Data Involved: emails

Keywords: in camera review

View Case Opinion

First American Title Insurance Company v. Northwest Title Insurance Agency, LLC, No. 2:15-cv-00229-DN-PMW (D. Utah, Aug. 31, 2016).

Aug 31 2016

Key Insight: no spoliation becuase no evidence responsive data deleted and no prejudice. Oral litigation hold upheld, but be wary.

Nature of Case: Breach of Contract; Unfair Competition

Electronic Data Involved: Various ESI- personal emails, files from work computer

Keywords: oral litigation hold; spoliation

David Mizer Enters. v. Nextar Broad., Inc. (Central District of Illinois, 2016)

Aug 31 2016

Key Insight: While privilege logs are not explicitly required when claiming privilege, they are the best way to properly assert attorney-client privilege

Nature of Case: Contract dispute

Electronic Data Involved: Electronic documents generally

Keywords: privilege log, website, servers, car,

View Case Opinion

Statements of Information Withheld Comply with Amended Rule 34, Motion to Compel Denied

Aug 29 2016

Rowan v. Sunflower Elec. Power Corp., No. 15-cv-9227-JWL-TJJ, 2016 WL 3743102 (D. Kan. July 13, 2016)

In this case, the court addressed, among other things, the sufficiency of Defendant’s objections to Plaintiff’s Requests for Production and in particular its compliance with the new requirements of amended Fed. R. Civ. P. 34, effective as of December 1, 2015. Upon review of the objections and Defendant’s statements of information withheld (as expressed by Defendant’s identification of its search parameters), the court concluded that Defendant’s responses were sufficient and counseled Plaintiff to make additional inquiries in future discovery to the extent he desired additional information.

Teledyne Technologies, Inc. v. Shekar (N.D. Ill., 2016)

Aug 22 2016

Key Insight: all counterclaims dismissed and attorneys’ fees paid for willful contempt

Nature of Case: misappropriation of trade secrets

Electronic Data Involved: computer files

Keywords: severe sanctions

View Case Opinion

Use of Predictive Coding was “Reasonable Inquiry,” Motion to Compel Additional Discovery Denied

Aug 18 2016

Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, No. 2685-11, 8393-12, 2016 WL 4204067 (T.C. July 13, 2016)

In September 2014, the court approved Petitioners’ use of predictive coding to identify potentially responsive and privileged data contained on two backup tapes, despite Respondent’s objection that the technology was “unproven.” (Read a summary of that opinion here.) At that time, the court indicated that Respondent could move to compel additional discovery in the event he believed that Petitioners’ response was insufficient. Accordingly, after Petitioners denied Respondent’s request for production of additional documents containing certain specified search hits, Respondent moved to compel. Concluding that Petitioners’ reliance on predictive coding satisfied the requirement for a “reasonable inquiry,” the court denied the motion.