Adequacy of Search/Identification or Collection – Page 18

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

James v. UMG Recordings, Inc., No. 11-cv-01613-SI (MEJ), 2013 WL 5978322 (N.D. Cal. Nov. 8, 2013)

Dec 01 2013

Key Insight: Where plaintiffs could surely foresee the need to manipulate royalty data but did not specify production in electronic form, and defendant had already twice produced the documents and argued that production of electronically formatted royalty statements would require creation of new documents not currently in existence, court denied plaintiffs’ motion to compel production of the data in electronic format, stating that plaintiffs’ proffered justification that Excel format would be more convenient “falls far short of the mark”; court further denied plaintiffs’ request for receipts data, finding that the burden of reprogramming royalty database and creating new software to extract information far outweighed usefulness of ordering production given that plaintiffs stated they could discern the data by extrapolation

Nature of Case: Consolidated putative class action for breach of contract and other claims filed by recording artists and producers who alleged that defendant underpaid royalties on digital downloads of plaintiffs’ recordings

Electronic Data Involved: Royalty statements in Excel format, receipts from download transactions with vendors

Peerless Indus., Inc. v. Crimson AV LLC, No. 11 C 1768, 2013 WL 1195829 (N.D. Ill. Mar. 22, 2013)

Dec 01 2013

Key Insight: District court evaluated and overruled each of defendants’ objections to various discovery rulings of magistrate judge, applying a “clearly erroneous” standard of review; among other things, district court found that magistrate judge did not err in ruling that defendants’ production of ESI was insufficient in that it lacked all of the required metadata, e.g., author information, information about whether the file was stored, and revision histories for computer-aided designs

Nature of Case: Claimis for patent infringement and design patent infringement arising out of defendants’ manufacture and sale of certain TV mounts

Electronic Data Involved: ESI

Mastr Adjustable Rate Mortgages Trust v. UBS Real Estate Secs. Inc., No. 12 Civ. 7322(HB)(JCF), 2013 WL 5745855 (S.D.N.Y. Oct. 23, 2013)

Dec 01 2013

Key Insight: Although court found that U.S. Bank was grossly negligent in failing to institute a litigation hold until eight months after its duty to preserve arose, court denied spoliation sanctions as there was no evidence of bad faith but positive evidence of good faith, and U.S. Bank presented persuasive evidence that no relevant documents were destroyed; court further ruled that litigation hold that U.S. Bank finally did impose was reasonable, as custodians were guided by both business people and counsel as to what to retain and counsel monitored compliance, gathering and reviewing relevant emails in the legal hold folders, substantive emails and attachments were printed out and retained separately and not subject to autodeletion policy

Nature of Case: Breach of contract, declaratory judgment

Electronic Data Involved: ESI

Home Instead, Inc. v. Florance, No. 8:12CV264, 2013 WL 5979629 (D. Neb. Nov. 8, 2013)

Dec 01 2013

Key Insight: Finding defendants? effort to respond to discovery inadequate in various respects, court granted plaintiff’s motion to compel and ordered defendants: (1) to provide detailed listing of all documents responsive to plaintiff’s discovery and in defendants’ possession, custody or control as of date of discovery requests, but which were not produced because defendants destroyed, deleted, sold, shredded or otherwise discarded them, along with a description of how and when defendants lost control or possession of such information, (2) to further search for and respond to discovery, produce any additional discovery located, and explain by written affidavit, as to each separate document request, the efforts made to locate responsive documents, and (3) to provide a sworn affidavit outlining whether a litigation hold was put in place, persons to whom litigation hold letter was sent, directions for preservation, sources identified for search, search terms used and efforts to ensure compliance with litigation hold; court further faulted defendants? production of one large PDF that contained no metadata, no indication of parent-child document relationship, and no indication as to the beginning and end of each document, and ordered defendants to produce responsive information in a manner that complied with the Federal Rules

Nature of Case: Franchise dispute involving claims for violation of non-compete clause, misappropriation of trade secrets and license marks, and other claims

Electronic Data Involved: ESI

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 SRN/SER, 2013 WL 6094600 (D. Minn. Nov. 20, 2013)

Dec 01 2013

Key Insight: District court affirmed in part magistrate judge?s order (at 2013 WL 5687559) denying plaintiff?s request for forensic examination of laptop computers used by plaintiff during her employment, as defendant produced 56,625 pages of documents from most recently used laptop, and burden and expense of forensic examination of previous laptop outweighed its likely benefit, given that plaintiff did not assert even a belief that relevant information existed on that computer that was not produced from other sources; court reversed in part magistrate judge?s order denying access to text and voice messages, finding that plaintiff demonstrated that ?the scale tips in her favor? in regard to two mobile phones provided by defendant to plaintiff and another witness for work-related purposes, and ordering parties to meet and confer upon protocol to be used in conducting search for responsive text messages and voice messages contained on the two devices

Nature of Case: Employment discrimination

Electronic Data Involved: Work laptops, and text messages and voice messages on certain mobile devices

W. Penn. Elec. Employees Pension Fund v. Alter, No. 2:09-cv-04730-CMR, 2013 WL 4803564 (E.D. Pa. June 26, 2013), approved and adopted in substantial part, 2013 WL 4799061 (E.D. Pa. Sep. 6, 2013)

Dec 01 2013

Key Insight: In this Report and Amended Recommended Order, Special Discovery Master agreed with plaintiffs that they should have the opportunity to confirm, though inspection by neutral e-discovery vendor already retained by parties, defense counsel?s representations as to contents of individual defendant?s belatedly-disclosed hard drive, because without the requested examination, there was no way to know if, in fact, hard drive contents were duplicative of data already produced by another party as the individual defendant claimed; Special Master found request was not unreasonable given the centrality of the defendant in events giving rise to the lawsuit, the unsubstantiated nature of defense counsel?s claim that the data was duplicative, that the defendant had provided only limited discovery to plaintiffs, that the defendant, through his counsel, had previously denied possession of any responsive data when the hard drive had been in his home and responsive documents were on his personal computer, much time and money had been expended in the effort to obtain the documents from other sources, and plaintiffs should not be expected to accept without question the claim that the defendant ?simply forgot? he had received company documents prior to his departure; district court subsequently adopted recommendation but modified deadlines and division of costs

Nature of Case: Securities class action

Electronic Data Involved: Material on hard drive belatedly disclosed by individual defendant

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

Tag:Adequacy of Search/Identification or Collection