Early Conference/Discovery Plan – Page 4

TVIIM, LLC v. McAfee, Inc., No. 13-cv-04545-VC (KAW), 2014 WL 5280966 (N.D. Cal. Oct. 15, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted in part and denied in part plaintiff?s request to compel defendant to produce emails employing particular keywords in Boolean search of five identified custodians, stating that defendant need not run two of the requested searches because they used truncated versions of defendant?s product names — something that was prohibited by the parties? ESI Order barring use of indiscriminate terms, such as the producing company?s name or its product name, unless combined with narrowing search criteria to reduce risk of overproduction; as to third requested search, magistrate judge ordered parties to confer to identify keywords that would remove ?out of office? and other automatic responses from the results, and ordered defendant to produce emails within seven days of parties? agreement

Nature of Case: Patent infringement

Electronic Data Involved: Email

In re Autohop Litig., No. 12-CV-4155 (LTS)(KNF), 2014 WL 5591047 (S.D.N.Y. Nov. 4, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted in part and denied in part defendant’s motion to compel, agreeing with plaintiff that particular document request was overly broad, unduly burdensome, and incomprehensively vague, and concluding that enormous burden and expense that would incurred by plaintiff to access and process the requested data outweighed any benefit defendant might gain; court further noted that the request violated agreement reflected in parties’ Joint Electronic Discovery Submission that they would not be required to search for “other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business”

Nature of Case: Declaratory action with counterclaims for copyright violations, breach of contract and fraud

Electronic Data Involved: Internal communications, viewership tracking data

Small v. Univ. Med. Ctr. of S. Nev., No. 2:13-cv-00298-APG-PAL, 2014 WL 4079507 (D. Nev. Aug. 18, 2014)

Dec 01 2014

Key Insight: In a lengthy decision, the Special Master recounted chronology of “extraordinary misconduct and substantial and willful spoliation of relevant ESI” by defendant and observed: “The level of intentional destruction of evidence by UMC shocks the conscious.” The Special Master concluded that only case dispositive sanctions would fully protect plaintiffs from defendant’s willful discovery failures, and set out various recommendations including specific factual findings as to class certification and a rebuttable presumption regarding certain merit issues

Nature of Case: Class action alleging claims under Fair Labor Standards Act and Nevada state wage and hour laws

Electronic Data Involved: ESI, laptops, personal mobile phones and BlackBerry devices, BlackBerry server, databases, SMS text messages, etc.

Espejo v. Lockheed Martin Operations Support, Inc., No. 14-000095 HG-RLP, 2014 WL 6634492 (D. Haw. Nov. 21, 2014)

Dec 01 2014

Key Insight: Where plaintiff ran software to permanently erase all information on his computer then drilled a hole in his hard drive and threw it away, and completely erased and reformatted all data on recording device, and most of recordings produced by plaintiff had been edited, all at a time when plaintiff knew he had an obligation to preserve evidence, court found that plaintiff engaged in willful spoliation of highly relevant evidence, that plaintiff acted in bad faith, that defendants were severely prejudiced by the loss of evidence, that less drastic sanctions would not sufficiently compensate for plaintiff’s widespread destruction of evidence and that, given the extensive spoliation of relevant evidence by plaintiff, it would not be possible to fairly evaluate the case on the merits; court concluded that dismissal was the only appropriate sanction

Nature of Case: Retaliation and wrongful termination

Electronic Data Involved: Plaintiff’s personal computer, email, recordings made by plaintiff of his interactions with other employees

Design Basics, LLC v. Carhart Lumber Co., No. 8:13CV125, 2014 WL 6669844 (D. Neb. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where court had previously ruled that, absent an order of the court upon a showing of good cause or stipulation by the parties, a party from whom ESI has been requested shall not be required to search for responsive ESI: (a) from more than 10 key custodians, (b) that was created more than five years before the filing of the lawsuit, (c) from sources that are not reasonably accessible without undue burden or cost, or (d) for more than 160 hours, inclusive of time spent identifying potentially responsive ESI, collecting that ESI, searching that ESI and reviewing that ESI for responsiveness, confidentiality and privilege or work product, and plaintiff subsequently moved to compel additional computer imaging, court balanced Rule 26(b)(2)(B) considerations and, acknowledging that defendant had provided both electronic and paper copies of all blueprints, performed plaintiff?s requested search on the email copied from 11 computers, had invested many hours reviewing thousands of documents for privilege and had offered to produce the non-privileged emails to plaintiff?s counsel for his review and had provided suggested deposition dates for defendant?s president, and noting that plaintiff neither reviewed the email nor deposed anyone notwithstanding that case was more then 18 months old, concluded that requested discovery was not reasonable and proportional to the issues raised in the litigation, denied plaintiff?s motion to compel, granted defendant?s motion for protective order, and ordered parties to complete and file an appended Rule 26(f) Report

Nature of Case: Design misappropriation

Electronic Data Involved: Forensic images of every computer or data storage location used by defendant

Skepkek v. Roper & Twardowsky, LLC, No. 11-4102-KHV, 2014 WL 289470 (D. Kan. Jan. 27, 2014)

Dec 01 2014

Key Insight: Noting that discovery dispute was good example of one which could have been avoided had the parties adequately conferred at their Rule 26(f) conference regarding production of ESI, court found that defendants failed to comply with prior discovery order by failing to produce attachments to responsive emails and granted motion to compel production of attachments

Nature of Case: Contract dispute concerning attorney fee-sharing agreement

Electronic Data Involved: Attachments to e-mails

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

Helget v. City of Hays, No. 13-2228-KHV-KGG, 2014 WL 1308893 (D. Kan. Mar. 31, 2014)

Dec 01 2014

Key Insight: Where defendant put ESI at issue by stating that plaintiff was fired, in part, for improper, personal use of the city’s computers, ESI relating to computer usage by plaintiff and certain others was relevant and city should have placed litigation hold on plaintiff’s immediate coworkers, those holding similar positions within the city, and the identified “key players”; court ordered city to bear the cost of forensic restoration

Nature of Case: Wrongful termination

Electronic Data Involved: E-mail, internet usage logs, and other ESI

FDIC v. Bowden, No. CV413-245, 2014 WL 2548137 (S.D. Ga. June 6, 2014)

Dec 01 2014

Key Insight: Where FDIC spent $614,000 to digitally scan about 2.01 terabytes of data or 153.6 million pages of documents after taking over failing bank, and before any written document requests were served, court evaluated parties? competing proposals for conducting e-discovery, discussed the governing standards for manner of document production, formatting issues, and cost-shifting for digital format conversion expenses, and ultimately approved protocol offered by FDIC; court further instructed that, in the event of any further ESI-protocol disagreement or objection to the court?s decision, the parties must first confer and attempt to craft a joint ESI protocol or consent order in light of the principles highlighted in the court?s ruling

Nature of Case: Bank receiver brought bank mismanagement case against 16 of bank’s former directors and officers

Electronic Data Involved: Records of failed bank

Melian Labs, Inc. v. Triology, LLC, No. 13-cv-04791-SBA (KAW), 2014 WL 4386439 (N.D. Cal. Sep. 4, 2014)

Dec 01 2014

Key Insight: Court denied defendant?s motion to compel production of all emails and spreadsheets in native format, since the parties? Joint Rule 26(f) Report was a stipulation and therefore Rule 34(b) did not govern their dispute; the parties? Joint Rule 26(f) Report did not require that all ESI be produced electronically but only stated that ESI may be produced in paper, PDF, or TIFF and that electronic files should be produced in native format when it was more practicable to do so; defendant failed to articulate why metadata was important to emails; and plaintiff had already produced some of its spreadsheets in native format (Excel) where the printouts were difficult to read

Nature of Case: Trademark infringement

Electronic Data Involved: Email and spreadsheets

Tag:Early Conference/Discovery Plan