Cost Shifting – Page 10 – Electronic Discovery Law

EEOC v. SVT, LLC, No. 2:13-CV-245-RLM-PRC, 2014 WL 2177796 (N.D. Ind. May 22, 2014)

Dec 01 2014

Key Insight: Where defendant utilized third party?s hiring program to allow applicants to apply online, etc. and had limited access to the system?s data (i.e., limitations on the format and content of reports from the system), the court found that the data that could be regularly accessed by the defendant per its contract with the third party was accessible and subject to production and that data housed by the third party and not readily available to the defendant was ?not reasonably accessible . . . because of both undue burden and cost? and ordered that if the EEOC wanted the inaccessible data, it would have to pay for it

Nature of Case: Employment litigation

Electronic Data Involved: ESI (Kronos)

Audio Visual Innovations, Inc. v. Burgdolf, No. 13-10372, 2014 WL 505565 (E. D. Mich. Feb. 3, 2014)

Dec 01 2014

Key Insight: Forensic examination of defendants’ electronic devices was appropriate given nature of case and allegations against individual defendants; court identified particular devices to be examined and provided specific guidelines for the examination and review of ESI, but denied plaintiff’s request for attorneys’ fees since defendants’ objections were reasonable; court further ruled that costs associated with obtaining the information from the devices would be borne by plaintiff

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI on defendant’s electronic devices

Klipsch Group, Inc. v. Big Box Store Ltd., No. 12 Civ. 6283 (VSB)(MHD), 2014 WL 904595 (S.D.N.Y. Mar. 4, 2014)

Dec 01 2014

Key Insight: Where defendants failed to issue litigation hold and their belated oral instructions were inadequate both in form and content, court authorized plaintiff to undertake a forensic investigation into state of defendants’ computer systems for purpose of determining likelihood of document destruction, likely nature and volume of any such destroyed documents, whether some or all of those documents may be recovered, and the status of sales information on the computers; court deferred ruling on plaintiff’s motion for adverse inference instruction or cost-shifting pending results of investigation

Nature of Case: Trademark infringement

Electronic Data Involved: E-mails and other ESI

Siltronic Corp. v. Employers Ins. Co. of Wausau, No. 3:11-cv-1493-ST, 2014 WL 991822 (D. Or. Mar. 13, 2014)

Dec 01 2014

Key Insight: After non-party produced responsive documents and sought reimbursement of $17,298 from defendant, court found that that hourly rate of $65 to $160 to search and copy documents was ?inherently unreasonable? and could not be justified, and invoices were vague and included entries for internal communications and meetings and time for senior scientists “to stand around the copier and copy documents”; court ruled that the defendant’s prior payment of $5,670 — about one-third of the total charge — was a reasonable amount, and that non-party must either absorb or charge the plaintiff for the remainder of its cost to comply with subpoena

Electronic Data Involved: Non-party documents relating to or arising out of specific invoices

SCR-Tech LLC v. Evonik Energy Servs. LLC, No. 08 CVS 16632 (N.C. Super Ct. Dec. 31, 2014)

Dec 01 2014

Key Insight: Where Plaintiff failed to ensure the preservation of information underlying a highly relevant report regarding the examination of certain Defendants? computers over which the court determined it had ?de facto control? (the underlying information, including copies of the images were in the possession of the third party investigator), the court indicated it was not necessary to make an express finding regarding when litigation was contemplated and reasoned that based on the circumstances, Defendants were ?entitled to the inference? that the information was negligently lost during a time when Plaintiff had the duty to preserve it. Thus, the court found Defendants had presented sufficient evidence of spoliation to trigger Plaintiff?s obligation to rebut it and that Plaintiff had not. As a sanction, the court ordered a permissive adverse inference. Regarding Plaintiff?s request to compel Defendant?s restoration of backup tapes, the court identified the state?s relevant three-part test and ordered that if Plaintiff wanted restoration, it would be required to pay half o f the estimated costs up front, with further allocation to occur following analysis of the results of the search.

Electronic Data Involved: ESI, backup tapes

Green v. Am. Modern Home Ins. Co., No. 1:14-cv-04074, 2014 WL 6668422 (W.D. Ark. Nov. 24, 2014)

Dec 01 2014

Key Insight: Court granted parties’ Joint Motion for Entry of Agreed Order Establishing Protocol for Production of Electronically Stored Information, which addressed search terms, production format, and various other e-discovery matters

Nature of Case: Insurance coverage

Electronic Data Involved: ESI

Network Cargo Sys. U.S.A., Inc. v. Pappas, No. 13 C 9171, 2014 WL 1856773 (N.D. Ill. May 7, 2014)

Dec 01 2014

Key Insight: Where e-discovery consultant jointly retained by parties reported that three previously undisclosed flash drives had been connected to former employee’s personal computers during the relevant time period, court agreed with plaintiff that consultant should be allowed to image and review the three flash drives but ruled that costs of such review would be borne by plaintiff given the likely limited usefulness of the search

Nature of Case: Misappropriation of confidential information

Electronic Data Involved: Flash drives and other electronic devices used by former employee

Spears v. First Am. eAppraiseit, No. 5-08-CV-00868-RMW, 2014 WL 6901808 (N.D. Cal. Dec. 8, 2014)

Dec 01 2014

Key Insight: Non-party JPMorgan Chase Bank moved for an order compelling Plaintiffs to reimburse Chase over $450,000 in costs for producing over 334,000 pages of documents. Chase sought reimbursement under FRCP 45(d)(2)(b)(ii); Plaintiffs argued Chase could not recover costs unless the production resulted from a court order. The Court found that a court order is not required to shift costs and that costs may be shifted under Rule 45(d)(2)(B)(ii) if the requesting party is on notice that the non-party will seek reimbursement of costs. The Court ultimately denied Chase?s motion, stating ?it would be unfair?to reimburse Chase for costs?where Chase failed to inform plaintiffs it would later seek reimbursement??

Nature of Case: RESPA class action

Electronic Data Involved: ESI

FDIC v. Baldini, No. 1:12-7050, 2014 WL 1302479 (S.D. W. Va. Mar. 28, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for protective order, rejecting plaintiff’s proposed protocol that would require defendants to supply search terms (which plaintiff would then apply to the ESI) and require defendants to pay ESI copying costs; court ordered plaintiff to fashion initial set of search terms and work with defendants to reach agreement on search terms to be used, and set out protocol to be followed by the parties for the production

Nature of Case: Breach of fiduciary duties, negligence

Electronic Data Involved: ESI

JPMorgan Chase Bank, N.A., v. East-West Logistics, LLC, No. 1-12-1111, 2014 WL 1292905 (Ill. App. Ct. Mar. 31, 2014)

Dec 01 2014

Key Insight: Trial court did not abuse its discretion when it ordered defendant to pay $3,026 of plaintiff’s requested $18,771 electronic discovery costs, as court had discretion under court rule to issue a protective order as justice required, had ordered the parties to confer on the scope of production and reserved the allocation of costs, and had properly balanced defendant’s need for the discovery material against the expense of the production incurred by plaintiff

Nature of Case: Action to collect amounts due under credit agreement and enforce guaranty

Electronic Data Involved: Electronically stored documents

Tag:Cost Shifting