Format Of Production – Page 15 – Electronic Discovery Law

Louisiana Worker?s Compensation Corp. v. Quality Exterior Servs. LLC, —So.3d—, 2012 WL 1668027 (La. Ct. App. May 2, 2012)

Dec 01 2012

Key Insight: Court granted writ of certiorari, reversed the ruling of the trial court, and granted defendant?s motion to compel production in native format where plaintiff failed to establish that the discovery sought was ?not reasonably accessible because of undue burden or cost? pursuant to the Louisiana Code of Civil Procedure

Nature of Case: Claims for unpaid portion of insurance premuim

Electronic Data Involved: ESI in native format

Gottlieb v. Iskowitz, 2012 Wl 2337290 (Cal. Ct. App. June 20, 2012)

Dec 01 2012

Key Insight: Appellate court found that trial court did not abuse discretion in imposing terminating sanctions for plaintiff?s egregious and willful discovery violations, including repeated failure to produce responsive materials in violation of the court?s multiple orders and subsequent ?dump? of 15 million pages of uncategorized documents that were not Bates labeled or accompanied by a corresponding index and which appeared to be largely non-responsive based on a review of 10% of the documents (?A dump of disorganized documents by definition is non-compliant.?); trial court?s award of significant damages was reversed and remanded for a new default proveup hearing on damages

Nature of Case: Libel, intentional infliction of emotional distress, and related claims

Electronic Data Involved: ESI

Borwick v. T-Mobil West Corp., No. 11-cv-01683-LTB-MEH, 2012 WL 3984745 (D. Colo. Sept. 11, 2012)

Dec 01 2012

Key Insight: Where defendant converted relevant audio files to .wav format and destroyed the originals pursuant to its document retention policy, the court declined to enter spoliation sanctions because the record did not establish bad faith reasoning (1) that defendant had provided an adequate explanation for plaintiff?s concern about gaps in the recordings, (2) that plaintiff should have requested the files in native format (which she did not) and that had she done so, defendant would have been on notice to preserve relevant files in their original format, and (3) the files were discarded pursuant to an established document retention policy; regarding bad faith, court stated, ?Only the bad faith loss or destruction of evidence will support either a judgment in favor of Plaintiff or the kind of adverse inference that Plaintiff seeks, i.e., that production of the original i360 recordings would have been unfavorable to Defendant?

Nature of Case: Employment discrimination

Electronic Data Involved: Audio files converted from original format

United States v. Jarman, No. 11-31217, 2012 WL 2700403 (5th Cir. July 9, 2012)

Dec 01 2012

Key Insight: Circuit court affirmed district court?s granting of defendant?s motion to compel production of a mirror image of a hard drive containing child pornography evidence where defendant?s expert presented unrebutted evidence that she could not conduct her investigation at a government facility because of ?time limitations and restrictions? and thus the circuit court could not conclude that the district court?s determination of ?no ?amply opportunity?? to investigate was clear error; court clarified, however, that it rejected the notion that inconvenience equated to a failure on the part of the government to make the child pornography evidence reasonably available and clarified that when such evidence is made available for inspection at a government facility, ?that is reasonable availability? such that the only issue to be resolved is whether the conditions imposed do not provide ?ample opportunity? for examination of the material

Nature of Case: child pornography; Adam Walsh Act

Electronic Data Involved: Child pornography evidence on hard drive

Minter v. Wells Fargo Bank, N.A., —F.R.D.—, 2012 WL 4903315 (D. Md. Oct. 12, 2012)

Dec 01 2012

Key Insight: Addressing production of business records pursuant to Rule 33(d) and, more specifically, who should bear the cost of imaging and segregating the relevant information from the many other pages of information with which the at-issue data was maintained, the court addressed the question of who would bear a heavier burden in locating and extracting the information (or whether the burden was even), determined it would be the plaintiffs (noting, for example defendant?s reliance on particular software not available to plaintiffs) and rejected defendant?s offer to do the work if plaintiffs bore the costs; court found that defendant must bear the cost of imaging and producing the data requested; court also addressed case scheduling in light of the time estimates for accomplishing the production and considered defendant?s resources, including the number of scanners and personnel that were required to complete the task, before ordering a deadline accordingly

Nature of Case: Alleged scheme to generate unlawful fees related to loan applications

Electronic Data Involved: Rule 33(d) business records

Fraserside IP LLC v. Gamma Entm?t., —F. Supp. 2d—, 2012 WL 4504818 (N.D. Iowa Sept. 28, 2012)

Dec 01 2012

Key Insight: In dispute over jurisdictional discovery, court concluded that plaintiff was entitled to a ?small slice? of defendant?s Google Analytics data (which tracks and accumulates data related to websites? visitors) related to the number of visitors to defendant?s website(s) from Iowa-based IP addresses; court agreed with plaintiff that it was entitled to ?more? than a hard copy PDF ?screen grab? of the relevant information and indicated that it anticipated production as HTML pages that could be opened with a standard internet browser, but that if that was not an agreeable solution, another hearing would be held

Nature of Case: Copyright infringement and related claims

Electronic Data Involved: Google Analytics

Annex Books, Inc. v. City if Indianapolis, No. 1:03-cv-SEB-TAB, 2012 WL 892170 (S.D. Ind. Mar. 14, 2012)

Dec 01 2012

Key Insight: Where plaintiff was unable to produce requested ?bookkeeping data? in a manner that was usable by defendants despite significant efforts to do so (including retaining two computer forensic services, spending over $9500 on 30 hour of work, and purchasing QuickBooks Pro in an attempt to export the relevant data), the court found that plaintiff had demonstrated that the data was not reasonably accessible but also found that defendant had demonstrated good cause for seeking the information and ordered defendant to bear the costs of additional efforts (noting that it was ?unreasonable? for defendant to insist on production in QuickBooks format when incompatibility had been established)

Electronic Data Involved: ESI

AllianceBernstein L.P. v. Atha, —N.Y.S.2d—, 2012 WL 5519060 (N.Y. App. Div. Nov. 15, 2012)

Dec 01 2012

Key Insight: On defendant?s appeal of lower court?s order requiring production of his iphone to opposing counsel for counsel?s review, appellate court found the order too broad and ?tantamount to ordering the production of his computer? and remanded the case with the order that plaintiff produce the iphone to the court for in camera review to identify what if any information was responsive to plaintiff?s discovery request

Nature of Case: Breach of employment contract, misappropriation of confidential information

Electronic Data Involved: iPhone

FDIC v. Appleton, No. CV-11-476-JAK (PLAx), 2014 WL 10245383 (C.D. Cal. Nov. 29, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced Relativity database with some 700,000 documents culled from its main server using search terms, and defendants complained there was no apparent logic to database and they could not tell what documents were responsive to what requests, court sided with defendants and ordered plaintiff to create files in Relativity into which it would place documents responsive to each particular request

Nature of Case: Receiver brought action against former officers and directors of failed bank

Electronic Data Involved: ESI

FTC v. Johnson, No. 2:10-cv-02203-RLH-GWF, 2012 WL 2138108 (D. Nev. June 12, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced documents as kept in the usual course of business and labeled some documents to correspond to certain requests and where plaintiff included ?a searchable concordance and an index that identifies the document?s source, description, and date range? the court found that the production complied with Rule 34 and denied defendant?s motion to compel plaintiff to ?respond to the requests for production of documents with organized and related responses?

Electronic Data Involved: ESI

Tag:Format Of Production