Adequacy of Search/Identification or Collection – Page 15

Freedman v. Weatherford Int?l, Ltd., No. 12 Civ. 2121(LAK)(JCF), 2014 WL 3767034 (S.D.N.Y. July 25, 2014)

Dec 01 2014

Key Insight: Court considered plaintiffs? motion to compel production of ?certain reports comparing the results of the defendants document search and production in this case with? the search terms proposed by the plaintiff and with searches and productions related to prior investigations but denied the motion upon defendant?s showing that preparing only a sample report took ?several weeks, over 250 hours of vendor time, and 750 hours of computer processing time? and where plaintiffs offered ?no adequate factual basis for their belief that the current production [was] deficient? in support of what amounted to a request for ?discovery on discovery?; court acknowledged, however, that ?there are circumstances where such collateral discovery is warranted?

Nature of Case: False and misleading statements in violation of securities laws

Electronic Data Involved: ESI

Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 12-2350-SAC, 2014 WL 806122 (D. Kan. Feb. 28, 2014)

Dec 01 2014

Key Insight: Court denied in most respects plaintiff’s motion for protective order, finding that plaintiff’s undue burden and expense arguments were unsupported and conclusory; court further denied plaintiff’s alternative proposal to shift some of the uncalculated ESI costs onto defendants as plaintiff failed to show that the disputed ESI production was inaccessible because of undue burden or cost, and because other relevant factors did not weigh in plaintiff’s favor; court further denied plaintiff?s request for a discovery conference or appointment of an ESI master, and ordered the parties to meet and confer regarding the proper method to search custodian hard drives, and suggested the parties consider a clawback provision specifically for ESI harvested after running the parties? respective search terms

Nature of Case: Insurance coverage dispute

Electronic Data Involved: ESI in databases and stored on custodian hard drives

Ablan v. Bank of Am. Corp., No. 11 CV 4493, 2014 WL 6704293 (N.D. Ill. Nov. 24, 2014)

Dec 01 2014

Key Insight: Adopting magistrate judge’s report and recommendation, district court granted defendants? motion to strike plaintiffs? additional damages claim as sanction for plaintiffs? tardy production of documents relating to additional damages claim, which production occurred more then three months after discovery period closed, as plaintiffs offered no justification for failing to timely produce the documents and defendants would be prejudiced if plaintiffs were allowed to rely on the new evidence to defeat summary judgment or at trial; court further awarded defendants their attorneys? fees incurred in filing the motion, but denied defendants? request for expert costs associated with reviewing the new information because defendants? experts would have reviewed any new information even if it had been timely, and there was no evidence that defendants? experts had to revise their expert reports due to the belated production, and therefore no excess expert costs resulted from the late production

Nature of Case: Breach of contract

Electronic Data Involved: Documents on eight CD-ROMS

Robinson v. County of San Joaquin, No. 2:12-cv-2783 MCE GGH PS, 2014 WL 3845775 (E.D. Cal. July 31, 2014)

Dec 01 2014

Key Insight: A clearly exasperated court described the parties’ discovery efforts to date, highlighted the inconsistencies/incompleteness in response, “as well as the complete cacophony of the San Joaquin County e-mail systems and retrieval,” and issued one final, specific order to be followed by defendant lest serious sanctions issue; among other things, court ordered defendant to perform computer-by-computer search for all current employees in order that any emails relating to plaintiff’s discrimination claims or job performance from 2007 to present may be produced, acknowledging that substantial work would be required for compliance but that judge was “not responsible for the County’s email systems which apparently have been designed for individual control and with no concern for litigation responsibilities”

Dewhurst v. Century Aluminum Co., No. 2:09-1546, 2014 WL 555164 (S.D. W. Va. Feb. 12, 2014)

Dec 01 2014

Key Insight: Court denied defendant’s motion for spoliation sanctions based on union’s failure to preserve evidence, noting that union appeared to have been diligent in trying to gather up relevant documents once litigation commenced, there was no way to determine when the missing records were destroyed, and union was autonomous organization and none of the existing plaintiffs shouldered any blame for the union’s negligence

Nature of Case: Class action regarding defendant’s obligation to restore certain retiree healthcare benefits

Electronic Data Involved: E-mail and other ESI

Shipley v. Forest Labs., No. 1:06-cv-00048-TC-DBP, 2014 WL 4270939 (D. Utah Aug. 29, 2014)

Dec 01 2014

Key Insight: Stating it could not speculate about defendant’s claimed burden given lack of any details, court granted in part plaintiff’s motion to compel and ordered defendant to run a preliminary search of custodial files belonging to particular sales representatives using search terms and time limits set forth in Case Profile Form, and to submit a certification to the court describing the volume of responsive documents and the approximate cost defendant would incur in running a full search through its vendor and through privilege review; once the court received the certification, it would determine whether the burden of producing such custodial documents outweighed the benefit of production

Nature of Case: Products liability wrongful death action

Electronic Data Involved: ESI

The Shaw Group Inc. v. Zurich Am. Ins. Co., No. 12-257-JJB-RLB, 2014 WL 4373210 (M.D. La. Sep. 3, 2014)

Dec 01 2014

Key Insight: Where parties? agreed protective order stated that parties would endeavor to agree on search terms to be utilized in the search for responsive ESI, and current discovery dispute centered solely on the reasonableness of the search terms chosen by each party and the willingness of the parties to negotiate reasonable search terms, court rejected defendant?s proposed list of 90 search terms in light of plaintiff?s showing that the broad search would result in undue burden and expense by generating an excess of irrelevant documents, and instead ordered plaintiff to search for responsive documents using plaintiff?s 28 proposed search terms and protocol which the court found reasonable and well-tailored to locate responsive documents; court faulted parties for their lack of diligence in completing discovery within the court?s deadlines, observing: ?In short, both sides chose to do nothing, waiting to see if the other side would blink first. In doing so, they have compromised the deadlines in the court?s scheduling order, the briefing on dispositive motions, and have essentially gambled with the parameters of ESI discovery.?

Nature of Case: Insurance dispute

In re Text Messaging Antitrust Litig., 46 F. Supp. 2d 788 (N.D. Ill. 2014)

Dec 01 2014

Key Insight: Court declined to impose sanctions against wireless carrier for employee’s deletion of particular email that referenced collusion, notwithstanding that deletion was intentional and done for the purpose of concealing the contents of the email, because record did not reflect that author of deleted email was in a position to have knowledge of or participate in any collusion between the wireless carriers, and thus plaintiffs could not show that missing email would have been adverse to wireless carrier

Nature of Case: Class action

Electronic Data Involved: Emails

Joffe v. Google, Inc., No. 10-md-02184-CRB (MEJ), 2014 WL 4681403 (N.D. Cal. Aug. 13, 2014)

Dec 01 2014

Key Insight: Where district court had authorized limited discovery on the issue of standing, and parties disagreed on scope and method of search of data, magistrate judge concluded that the most efficient method was through the appointment of a special master as it would (1) permit a technical expert to review all the data in a timely and effective manner, (2) limit collateral attacks and claims of bias that were likely to result if either party conducted the search, and (3) protect any interests that parties not before the court might have, given plaintiffs’ claims that the data contains private information; magistrate judge recommended appointment of special master and further recommended using Google’s ?Jurisdictional Discovery Proposal? for selection of the special master, development of protocol and depositing of information, and all related matters

Nature of Case: Putative class action in which plaintiffs alleged that Google intentionally intercepted, recorded and stored their Wi-Fi communications

Electronic Data Involved: Google’s “Street View” data

Quantlab Techs. Ltd. (BGI) v. Godlevsky, No. 4:09-cv-4039, 2014 WL 651944 (S.D. Tex. Feb. 19, 2014)

Dec 01 2014

Key Insight: After two-day evidentiary hearing, court analyzed conduct of various individuals and inferred bad faith as to each based on particular facts and concluded generally that lost evidence was moderately relevant and loss was moderately prejudicial; without stronger showing of bad faith or more definitive demonstration of relevance and prejudice, court declined to impose litigation-ending sanctions but would give spoliation instruction to be crafted at the same time as jury instructions

Nature of Case: Copyright infringement, breach of contract, misappropriation of trade secrets, fraud

Electronic Data Involved: Developer work stations, hard drives, flash drives, source code

Tag:Adequacy of Search/Identification or Collection