Adequacy of Search/Identification or Collection – Page 18

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

Valentini v. Citigroup, Inc., No. 11 Civ. 1355(JMF), 2013 WL 4407065 (S.D.N.Y. Aug. 16, 2013)

Dec 01 2013

Key Insight: Court declined to dismiss complaint or grant adverse inference instruction as sanction for plaintiffs’ blatant disregard of the discovery process as there was no evidence of willfulness or maliciousness, and instead awarded all attorneys’ fees and costs that defendants incurred as a result of plaintiffs’ dilatory conduct; court further ordered parties to brief issue of whether more severe sanctions should be imposed against plaintiff entity that had failed to produce a single document from its files

Nature of Case: Fraud and related claims

Electronic Data Involved: ESI

Mastr Adjustable Rate Mortgages Trust v. UBS Real Estate Secs. Inc., No. 12 Civ. 7322(HB)(JCF), 2013 WL 5651290 (S.D.N.Y. Oct.15, 2013)

Dec 01 2013

Key Insight: Where review of sample of unproduced documents revealed possibility that more responsive documents had been missed than had been produced, court ordered producing party to re-review at-issue custodians? files and to confer with requesting party regarding expansion of search terms; court rejected producing party?s arguments that its initial review was ??on par with and likely more accurate than typical document reviews,? citing cases and studies finding that human reviewers are disconcertingly error-prone? reasoning in part that producing party ?can, and has, utilized review technologies that can, if used properly, be expected to identify more than a mere half of the potentially responsive documents.?

Nature of Case: Breach of contract, declaratory judgment

Electronic Data Involved: ESI

Sung v. Mission Valley Renewable Energy, LLC, No. CV-11-5163-RMP, 2013 WL 4523561 (E.D. Wash. Aug. 27, 2013)

Dec 01 2013

Key Insight: Where defendants received plaintiff?s production of approximately 3,600 electronic documents less than two weeks before trial was to begin, and defendants were only able to obtain the documents after they arranged for an independent electronic discovery review in response to plaintiff?s prior discovery abuses, court found that the circumstances of case were extraordinary, that plaintiff acted willfully and in bad faith in violating FRCP 26, 37 and the court?s scheduling order, and that analysis of the five relevant factors warranted dismissal of plaintiff?s claims against each defendant with prejudice

Nature of Case: Washington State Securities Act claims, breach of fiduciary duty, negligence, and related claims

Electronic Data Involved: 3,600 electronic documents which, if printed out, would total more than 10,000 pages

Newill v. Campbell Transportation Co., No. 2:12-cv-1344, 2013 WL 6002349 (W.D. Pa. Nov. 12, 2013)

Dec 01 2013

Key Insight: Court found defendant failed to conduct a reasonable investigation for responsive materials prior to serving its Initial Disclosures and responding to Plaintiff?s first requests for production where defendant failed to discover relevant photographs of the accident site taken by a former employee despite knowing that it was ?standard procedure? for such photographs to be taken; responding to Defendant?s claim that it needn?t extend its investigation to former employees, the court noted that ?[a]nalyzing the practical ability of corporations to obtain work-related documents from former employees, courts insist that corporations, at the very least, ask their former employees to cooperate before asserting that they have no control over documents in the former employees’ possession.? Export?Import Bank, 233 F.R.D. at 341 (citations omitted) (emphasis added).

Nature of Case: Jones Act negligence case

Electronic Data Involved: Digital photographs

Clay v. Consol Penn. Coal Co., No. 5:12CV92, 2013 WL 4854746 (N.D. W. Va. Sep. 11, 2013)

Dec 01 2013

Key Insight: Where defendants were dilatory in participating in discovery and did not begin searching for ESI until plaintiff was on the brink of filing his second motion to compel, district court affirmed magistrate judge?s recommendation that plaintiff?s motion for default judgment be denied because there was no showing of bad faith on the part of defendants and prejudice to plaintiff could be alleviated through imposition of less drastic sanctions, such as allowing plaintiff to re-depose certain witnesses at defense expense, allowing plaintiff to exceed the deposition limit, and awarding plaintiff reasonable expenses (including attorneys’ fees) of the motion

Nature of Case: Race discrimination

Electronic Data Involved: ESI

Master Hand Contractors, Inc. v. Convent of the Sacred Heart of Chicago, No. 1-12-3788, 2013 WL 5940641 (Ill. App. Ct. Nov. 4, 2013)

Dec 01 2013

Key Insight: Trial court did not err in dismissing mechanics lien case with prejudice as sanction for plaintiff’s failure to comply with its discovery obligations for approximately 18 months and its violations of seven orders of the court, including three expressly final deadlines to produce electronic discovery materials, as the trial court applied progressive discipline to coerce compliance and gave plaintiff ample opportunities to escape possible discovery sanctions; appellate court criticized plaintiff?s approach to the ESI request, ?under which the company owner — who called himself a ?computer idiot? in open court — self-selected emails relating to the Sacred Heart project instead of using a search tool to find them, and printed them out one at a time, all without supervision of counsel.?

Nature of Case: School building construction litigation

Electronic Data Involved: ESI, including email

Tag:Adequacy of Search/Identification or Collection