Adequacy of Search/Identification or Collection – Page 17

Out of the Box Developers LLC v. Logicbit Corp., No. 10 CVS 8327, 2013 WL 3090303 (N.C. Sup. Ct. June 5, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought production of three versions of at-issue software but encountered repeated delays on the part of Defendants and where one Defendant eventually discovered that he was in fact in possession of (i.e., had preserved) the older version of the software that Plaintiffs requested but had failed to discover the information because he failed to make inquiry of ?others under his control,? including his law firm?s IT personnel, the court elected to impose ?the lesser sanction of taxing costs? and ordered that Defendants reimburse Plaintiff for its reasonable costs and expenses associated with its various motions to compel; Defendants were ordered to install a current copy of the software on a laptop provided by the Plaintiff, to provide Plaintiff with direct access to the customized version currently in use by the Defendant/law firm, and to produce to Plaintiff a copy of the recently discovered database backup containing the software as originally installed

Nature of Case: Claims that defendants “stole a series of [Plaintiff’s] software customizations” and incorporated them into their software

Electronic Data Involved: Versions of case management software (original, customized, and current)

Home Gambling Network, Inc. v. Piche, No. 2:05-cv-00610-DAE-VCF, 2013 WL 5491952 (D. Nev. Sep. 30, 2013)

Dec 01 2013

Key Insight: District court adopted magistrate judge?s report and recommendation that plaintiffs? motion for terminating sanctions, based in part on defendants? botched production of database, be denied in light of additional evidence (consisting of supplemental report by defense expert stating that database was not corrupt but merely ?offline,? expert testimony and in-court demonstration of operation of database, and information regarding a prior database crash) presented by the parties after the district court vacated different magistrate judge’s report and recommendation that plaintiffs? motion for terminating sanctions be granted, that defendants? answer be stricken and that a default judgment be entered against defendants; in light of additional evidence, magistrate judge found that (1) defendants did produce a mirror image of the database as ordered by the court and there was no basis for sanctions, and (2) something done to plaintiffs’ copy of the database after it was provided to plaintiffs caused the error message

Nature of Case: Patent infringement and various state-law claims

Electronic Data Involved: ESI, database

In re Frazer/Exton Dev., L.P., 503 B.R. 620 (Bankr. E.D. Penn. 2013)

Dec 01 2013

Key Insight: Court denied debtors? motion to reopen their bankruptcy cases in order to obtain relief from settlement agreement with debtors? largest creditor and plan of reorganization because — notwithstanding that creditor failed to search all potential sources of ESI and failed to produce responsive documents in what court described as ?incompetent and reckless discovery foul-up? that should not have occurred — debtors could not, as a matter of law, obtain the relief they sought under Rule 60 and it would therefore be futile for the court to reopen the record for the purpose of allowing the debtors to file a time-barred Rule 60 motion

Nature of Case: Debtors sought to reopen their bankruptcy cases in order to obtain relief from settlement agreement and plan of reorganization

Electronic Data Involved: ESI

Atlas Resources, Inc. v. Liberty Mut. Ins. Co., No. CIV 09-1113 WJ/KBM, 2013 WL 1277878 (D.N.M. Mar. 28, 2013)

Dec 01 2013

Key Insight: Addressing Plaintiff?s fourth and fifth motions for sanctions resulting from the delayed production of relevant ESI for reasons ranging from alleged computer glitches to prior counsel?s failure to turn over highly relevant emails?and current counsel?s failure to timely discovery that those emails had previously been withheld?the court acknowledged current counsel?s efforts to rectify prior discovery abuses (addressed in prior sanctions motions) but nonetheless found that severe sanctions were warranted, including that defendant?s non-equitable counterclaims be stricken, that defendant pay the reasonable costs associated with the filing of the fourth and fifth motions for sanctions, that defendant or its counsel bear the cost of re-depositions (which they had previously offered to do), and that defendant pay a portion of the costs for plaintiff?s experts to supplement their reports

Nature of Case: Claims arising from contract for providing worker?s compensation insurance and claims administration

Electronic Data Involved: Misc. ESI

Magnuson v. Newman, No. 10 Civ. 6211(JMF), 2013 WL 5380387 (S.D.N.Y. Sep. 25, 2013)

Dec 01 2013

Key Insight: Although court observed there was little question that defendants’ disclosures had not included documents that were once in their possession that would be relevant to the case, as they had failed to produce any emails between and among themselves and any drafts of contracts relating to the issues of the lawsuit, court declined to impose discovery sanctions because plaintiffs failed to carry their burden of establishing that defendants had an obligation to preserve the evidence at the time it was destroyed; court rejected plaintiffs’ contention that defendants’ admitted failure to back up their computers or put a litigation hold in place constituted per se gross negligence, and stated that a party?s failure to adopt good preservation practices was one factor in the determination of whether discovery sanctions should issue

Nature of Case: Fair Labor Standards Act claims brought by a group of television production professionals and companies

Electronic Data Involved: Emails and documents

Cefalu v. Holder, No. 12-0303 THE (JSC), 2013 WL 4102160 (N.D. Cal. Aug. 12, 2013)

Dec 01 2013

Key Insight: Where Defendant sought to compel production of plaintiff’s personal computers’ hard drives for inspection or to compel Plaintiff?s counsel to perform an independent search of the computer and other electronic devices to ensure that all responsive documents had been produced and where Defendant cited a prior search by Plaintiff?s counsel that yielded additional responsive documents and Plaintiff?s counsel?s admission that she had never examined the contents of Plaintiff?s personal computers, the court acknowledged that the rules do not create a right of direct access to a party?s electronic information systems, but, also acknowledged that the history of Plaintiff?s document productions suggested that he may not ?fully understand his search obligations,? and thus the court ordered Plaintiff?s counsel to ensure that all responsive documents on the computers and other devices were located and produced but declined to allow Defendant to conduct its own examination absent a demonstration of good cause

Electronic Data Involved: Contents of personal computer

Breathablebaby LLC v. Crown Crafts, Inc., No. 12-cv-94 (PJS/TNL), 2013 WL 3350594 (D. Minn. May 31, 2013)

Dec 01 2013

Key Insight: Calling defendants collection efforts ?incomplete and somewhat haphazard? where defendant provided no instruction to its chosen custodians regarding the types of documents to search for, whether to check with subordinates, or how to search for documents, the court reopened discovery so that production could ?commence in accordance with the parties? joint ESI plan,? and ordered the parties to meet and confer regarding search terms and an amended scheduling order; court considered proper logging of emails and ordered defendant to produce an amended privilege log that listed each privileged email contained in an email string separately

Nature of Case: Patent infringement

Electronic Data Involved: Email, misc. ESI

Lee v Stonebridge, No. 11-cv-43 RS (JSC), 2013 WL 3889209 (N.D. Cal. July 30, 2013)

Dec 01 2013

Key Insight: Court denied Defendant?s motion to conduct a forensic inspection of Plaintiff?s iphone where there was no dispute that the at-issue phone was not the phone that received the at-issue text message and where Plaintiff?s expert indicated that the relevant iphone had been backed up on plaintiff?s personal computer; court denied motion to conduct a forensic inspection of Plaintiff?s personal computer where Defendant failed to demonstrate that the information sought was not reasonably accessible through other sources (e.g., the co-defendant that allegedly sent the at-issue text message), where plaintiff had offered to search for whatever information defendant sought, where plaintiff had already provided considerable data, and where Defendant?s request was essentially a fishing expedition; court reasoned that ?absent a showing of misconduct? raising questions regarding the completeness of Plaintiff?s expert?s search, no inspection by Defendant was warranted and ordered the parties to cooperate to create a protocol for plaintiff?s expert to use

Electronic Data Involved: iphone, contents of personal computer, text-message

Reinsdorf v. Sketchers U.S.A.,Inc., — F. Supp. 2d —,2013 WL 3878685 (C.D. Cal. July 19, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought sanctions for alleged spoliation of documents from Defendant?s media share website but where the court found that many of the at-issue documents were not relevant and therefore were not subject to preservation and that the deletion of ?arguably relevant documents? was ?at most negligent,? the court found that Plaintiff was not prejudiced and denied his request for forensic examination of Defendant?s servers and an evidentiary hearing and also declined to re-open discovery; court?s analysis noted that the federal rules do not require perfection, but rather that a responding party conducts an objectively reasonable search for responsive materials

Nature of Case: Copyright infringement

Electronic Data Involved: ESI stored on Media share website

Soffer v. Five Mile Capital Partners, LLC, No. 2:12-cv-01407-JAD-GWF, 2013 WL 4499011 (D. Nev. Aug. 19, 2013)

Dec 01 2013

Key Insight: Court indicated that dispute over whether to compel Defendants to conduct additional searches in an expanded date range turned on Rule 26(b)(2)(C)(iii) and the question of whether the burden outweighed the likely benefit but, citing Plaintiff?s prior offer to more narrowly tailor the search terms to be utilized and to contribute to the reasonable costs of Defendants? review, ordered the parties to meet to attempt to reach agreement on a more focused search and to negotiate a reasonable cost sharing agreement and indicated that the court would consider shifting ?an appropriate share of the costs of production? once a determination of the cost was made

Nature of Case: Interference with a contract and prospective economic advantage, fraud, breach of fiduciary duty

Electronic Data Involved: ESI

Tag:Adequacy of Search/Identification or Collection