Keyword Search – Page 13 – Electronic Discovery Law

McNulty v. Reddy Ice Holdings, Inc., 2011 116892 (E.D. Mich. Jan. 13, 2011)

Dec 01 2011

Key Insight: Where defendant preserved 4 terabytes of electronically stored information and 744 boxes of paper documents to be reviewed for production, court cited Rule 26(b)(2)(B) for the proposition that burdensome discovery should be limited but found that plaintiff had good cause for requesting relevant information and ordered the parties to meet and confer to develop search terms or objective search criteria for identifying responsive ESI as well as to develop a search plan for the hard copy

Nature of Case: RICO

Electronic Data Involved: ESI, hard copy

Seven Seas Cruises S. DE R.L. v. V. Ships Leisure Sam, 2011 WL 181439 (S.D. Fla. Jan. 19, 2011)

Dec 01 2011

Key Insight: Where plaintiffs challenged the sufficiency of defendants? search, including whether defendants had used the agreed-upon search terms, and the format of defendant?s production, and where plaintiff specifically pointed to an email that should have been produced but was not, the court noted plaintiffs? concession that defendants? search methodology did not result in plaintiff receiving fewer documents and that they had been able to use the information produced, despite their arguments regarding format, but ?nevertheless concluded? that defendants should provide additional information and ordered the submission of an affidavit detailing defendants? search efforts; the court concluded that the dispute in this case was ?caused primarily by the parties? mutual failure to communicate and work together in good faith to resolve the areas of dispute? and counseled that in future the parties should more clearly specify the way in which discovery will be conducted and, if they cannot agree, should seek judicial assistance

Nature of Case: Suit for damages arising from failure to provide proper ship management

Electronic Data Involved: ESI

Hock Foods, Inc. v. William Blair & Co., LLC, No. 09-2588-KHV, 2011 WL 884446 (D. Kan. Mar. 11, 2011)

Dec 01 2011

Key Insight: Based upon affidavits of defendant?s General Counsel and Litigation Technology Project Manager identifying the burden of responding to plaintiff?s requests for production, including potentially searching 12,786 boxes of hardcopy and 12 terabytes of data, court denied motion to compel but ordered defendant to provide a supplemental response to plaintiff?s request after conducting less burdensome searches and encouraged cooperation to agree upon what those searches would entail; court also denied motion to compel additional searching for particular issues where defendant estimated the cost of search per gigabyte at between $100 and $300 with a total resulting cost of between $1.2 million and $3.6 million

Nature of Case: Dispute regarding proper payment pursuant to contract

Electronic Data Involved: ESI

Ingersoll v. Farmland Foods, Inc., No. 10-6046-CV-SJ-FJG, 2011 WL 1131129 (W.D. Mo. Mar. 28, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel defendant?s production of its litigation hold where such letters are generally not discoverable absent evidence of spoliation; resolving dispute related to how to initially proceed with discovery of ESI, court approved defendant?s proposal to utilize search terms for the identification of potentially responsive information and to sample those results to determine the success of the terms; court also ordered that plaintiff be provided access to the search term ?hits? so that ?both sides may have an opportunity to determine the efficacy of the sampling.?

Nature of Case: Employment claims related to payment for ?donning and doffing?

Electronic Data Involved: ESI

Stambler v. Amazon.com, No. 2:09-CV-310 (DF), 2011 WL 10538668 (E.D. Tex. May 23, 2011)

Dec 01 2011

Key Insight: Where parties agreed on search terms to identify responsive materials and defendants (the producing parties) later argued that the terms had produced overly-burdensome results, court held that defendants had the burden of ?justifying non-production or reduced production? because they had agreed to the terms and that they had failed to ?justify protection under Rule 26(b)(2)(C)(iii)? but, acknowledging the expected costs of review and production, indicated that defendants could choose to produce documents without reviewing the results in light of the ability to identify privilege using key words and the parties? claw back agreement in their protective order; recognizing the potential burden to plaintiffs if defendants chose to produce documents without review, the court indicated the parties could confer to revise search terms if they so chose

Nature of Case: Patent infringement

Electronic Data Involved: Emails

Surowiec v. Capital Title Agency, Inc., No. CV-09-2153-PHX-DGC, 2011 WL 1671925 (D. Ariz. May 4, 2011)

Dec 01 2011

Key Insight: Highlighting that a party?s duty of preservation is owed to the court and not to a potential plaintiff, court found that defendant was grossly negligent in its failure to issue a litigation hold or take other efforts to ensure preservation of relevant evidence and ordered an adverse inference; court also found that defendant acted ?willfully in failing to timely and adequately respond to the document requests? where defendant?s search terms were not ?calculated to capture? relevant documents and where a court ordered (re)search resulted in production of thousands of documents only three days before the close of discovery and ordered defendant to reimburse plaintiff for expenses incurred as a result of the misconduct and for the reasonable attorney?s fees spent to challenge the misconduct, prepare for additional depositions, and bring the instant motion for sanctions; court?s opinion specifically declined to hold that a lack of written litigation hold was negligence per se

Nature of Case: Breach of contract, breach of fiduciary duty, etc. related to purchase of condominium

Electronic Data Involved: Emails, ESI

Doyle v. Gonzales, 2011 WL 611825 (E.D. Wash. Feb. 10, 2011)

Dec 01 2011

Key Insight: Where a small town with ?limited financial and technological resources? sought a protective order to allow phased discovery of ESI in light of the alleged burden and expense of the requested discovery, the court granted in part the defendant?s motion and crafted a protective order which established the search terms to be employed and allowed plaintiff the opportunity to provide suggestions and which provided that if the search returned an unreasonable amount of documents that plaintiff?s counsel should assist in ?restructuring the search? to reduce that number

Electronic Data Involved: ESI

Wood v. Capital One Servs., LLC, No. 5:09-CV-1445, 2011 WL 2154279 (N.D.N.Y. Apr. 15, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel additional discovery, including ?sweeping searches of ESI using suggested search terms? where, following significant analysis of the rule of proportionality (26(b)(2)(C)), the court determined that the ?minimally relevant information to be developed through the discovery? was ?far outweighed by the burden? associated with it, but left open plaintiff?s option to bear the cost of the discovery himself

Nature of Case: Violations of Fair Debt Collection Practices Act

Electronic Data Involved: ESI

In re Facebook PPC Adver. Litig., No. C09-03043 JF (HRL), 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011)

Dec 01 2011

Key Insight: Despite Facebook?s assertions that an ESI protocol was unnecessary and that there was no basis to require rigid up-front requirements, court cited the ?clear thrust of discovery-related rules, case law, and commentary? suggesting that communication among counsel is critical and ordered parties to meet and confer to establish protocol to establish the format of production, search terms, etc.; court ordered re-production of any ESI already produced in non-searchable formats and prohibited Facebook?s further use of Watchdox.com to make ESI available to plaintiffs where the method was unduly burdensome to plaintiffs (in light of Facebook?s control of the documents, ability to track what was reviewed, etc.) and where parties previously agreed to a protective order which provided sufficient protection to the documents at issue

Electronic Data Involved: ESI

Couch v. Wan, No. 1:08cv1621 LJO DLB, 2011 WL 2551546 (E.D. Cal. June 24, 2011)

Dec 01 2011

Key Insight: After defendant reported that the estimated cost of searching its electronically stored information using the search terms provided by plaintiff would be ?at least $54,000? because of the need to hire an outside contractor to assist, the court found that the discovery requests imposed a burden on the defendant that warranted cost shifting and ordered the parties to met and confer to determine an appropriate cost sharing agreement; Reconsideration denied in Couch v. Wan, No. CV F 08-1621 LJO DLB, 2011 WL 291118 (E.D. Cal. July 20, 2011)

Nature of Case: Violations of their free speech rights and violations of the Racketeer Influenced Corrupt Organizations Act (“RICO”)

Electronic Data Involved: ESI

Tag:Keyword Search