Cost Shifting – Page 5 – Electronic Discovery Law

Selective Ins. Co. of the Se. v. RLI Ins. Co., 5:12CV2126, 2017WL 1206036 (N.D. Ohio Mar. 31, 2017)

Dec 01 2017

Key Insight: Court agreed with recommendation of magistrate judge and held costs incurred by a non-party for compliance with an order compelling production are reimbursable. The magistrate judge ordered the Non-Party to submit a cost estimate for reviewing the documents, preparing a privilege log and producing the non-privileged documents. The cost estimate submitted was over $120,000. Defendant then presented a pared down document request and the magistrate judge issued a Modified Subpoena. The Court accepted the magistrate judge?s recommendation and ordered Defendant to pay $14,174.32 for the costs to Non-Party of complying with the Modified Subpoena stating that Defendant ?was the recipient of the fruits of Non-Party[?s] labor.? The Court also agreed with the magistrate judge that non-parties are not protected by the work product doctrine.

Nature of Case: Non-party compensation for document production

Electronic Data Involved: emails and non-electronic documents

Zamora v. Stellar Mgmt. Grp., Inc. , 3:16-05028-CV-RK, 2017 WL 1362688 (W.D. Mo., Mar. 11, 2017)

Dec 01 2017

Key Insight: Where Plaintiff in an employment litigation failed to preserve a potentially relevant Facebook post, deleted her work phone before returning it and failed to preserve information contained on numerous other phones (e.g., because they were lost, etc.), court found that ?Plaintiff cannot be relied on to disclose all relevant communications? and granted motion to allow access to the mirror image of a phone belonging to a former employee and co-worker of the plaintiff and to allow defendant to subpoena the former employee to produce a second phone for inspection and ordered production of Plaintiff?s current work phone, to be reviewed by a Special Master for potentially relevant communications, with the cost of the Special Master to be split between the parties ; court found request for dismissal or an adverse inference was premature

Nature of Case: Employment litigation

Electronic Data Involved: ESI from cellular phones, Facebook

U.S. EEOC v. GMRI (S.D. Fla., 2017)

Nov 01 2017

Key Insight: whether missing evidence is crucial to movant’s case, whether non-movant had intent to deprive

Nature of Case: employment discrimination

Electronic Data Involved: hard copy, email

Keywords: duty to preserve, litigation hold, permissible inference, bad faith

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Oxbow Carbon & Minerals LLC v. Union Pac. R.R., No. 1:11-cv-01049-PLF-GMH (D.D.C. Sept. 11, 2017)

Sep 11 2017

Key Insight: ability to afford production, parties access to the relevant documents, impact on third parties

Nature of Case: Antitrust

Electronic Data Involved: 467,614 documents from electronic and physical files, 130 GB additional documents

Keywords: scope of discovery, antitrust, Sherman, cost/benefit

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New Mexico Oncology and Hematology Consultants, LTD. v. Presbyterian Healthcare Services, et al., No. 1:12-cv-00526-MV-GBW (D. N.M. Aug. 16, 2017)

Aug 16 2017

Key Insight: Severe sanctions require intent and actual loss of evidence,

Nature of Case: Antitrust

Electronic Data Involved: E-mails

Keywords: email jail, litigation hold, transport dumpster,

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Parris v. Pappas (D. Conn., 2017)

Aug 03 2017

Key Insight: Documents in plaintiff’s girlfriend’s possession could not be compelled, because the girlfriend refused to produce them.

Nature of Case: Civil Rights action

Electronic Data Involved: documents held by third party

Keywords: practical ability test, proportionality, third party subpoena

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Ariel Inv., LLC v. Ariel Capital Advisors LLC, No. 15 C 3717 (N.D. Ill., July 17, 2017)

Jul 17 2017

Key Insight: Reimbursement of eDiscovery costs

Nature of Case: trademark infringement, unfair competition, cybersquatting

Electronic Data Involved: documents copied and coverted into a readable format

Keywords: Reimbursement, making copies, converted, copied, native, proportionality, taxable

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Williams v. Superior Court (California Supreme Court, 2017)

Jul 13 2017

Key Insight: Showing threshold of compelling interest unnecessary before nonparty contact information is discoverable

Nature of Case: Wage and hour class action

Electronic Data Involved: nonparty contact information

Keywords: third party privacy, class action, percipient witness, discovery threshold, threshold requirement

Identified State Rule(s): Cal. Civ. Proc. 2017.010, 1017.020, 2030.300

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Nachurs Alpine Solutions, Corp. v. Banks and Nutra-Flo Co., No. 5:15-CV-04015-LTS-CJW (N.D. Iowa July 7, 2017)

Jul 07 2017

Key Insight: Production of non-responsive documents for re-review due to distrust may be cost shifted to opposing party

Nature of Case: Trade secret

Electronic Data Involved: Electronic documents

Keywords: fertilizer, trade secret, Nutra-Flo,

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Bailey v. Brookdale Univ. Hosp. Med. Ctr. (E.D.N.Y., 2017)

Jun 16 2017

Key Insight: accessibility of data, whether counsel had meaningful discussions with his client regarding the ESI agreement, whether the meet-and-confer was meaningful

Nature of Case: employment discrimination

Electronic Data Involved: e-mail

Keywords: cost shifting, ESI agreement, meaningful negotiation, meet-and-confer, undue burden or expense

View Case Opinion

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