Key Insight: Motion for Extension of Time to Complete Discovery, unforeseen or unanticipated matters.
Nature of Case: Unlawful restraint of trade class action
Electronic Data Involved: 3.5 million predominantly non-responsive documents produced by defendant, predictive coding.
Key Insight: Court granted motion to compel production of requested ESI in native format: ?Native format production also complies with the Federal Rules of Civil Procedure and this case?s ESI order. Moreover, the Court finds that metadata and native format production are relevant and proportional to the needs of discovery. It is untenable to assert in this technology-driven age of litigation that images of electronic documents provided in TIFF and PDF form offer all of the relevant information possible. The metadata that is not visible in TIFF and PDF productions, but is visible in native format production, is relevant information. Therefore, the Court GRANTS Plaintiff?s motion on this issue.?
Nature of Case: Employment litigation
Electronic Data Involved: ESI
Key Insight: The parties in this case agreed to produce ESI ?in accordance with the Southern District?s Order Governing Discovery of Electronically Stored Information.? Defendant sought production of all documents that ??hit? on the parties? agreed-upon search terms without further relevance review,? arguing that the terms were narrowly tailored and that any resulting hits were ?presumptively relevant and responsive.? Plaintiffs argued that Defendant?s interpretation of the order was contrary to law and conflicted with the language of Fed. R. Civ. P. 26(b)(1), among other things. Citing a declaration from Plaintiff?s CEO that the search hits, which for some terms numbered in the thousands or tens of thousands, contained a substantial number of irrelevant documents, the court agreed that ?culling for relevance [was] warranted.?
Nature of Case: Patent Infringement
Electronic Data Involved: ESI (search hits)
Key Insight: In personal injury case, the trial court abused its discretion by ordering forensic imaging of ALL of Plaintiff?s devices, including his work computer which was owned by his employer, where, among other things, the appellate court determined that such a request ran ?counter to the traditional protocol of discovery, in which one party requests specific information and the other party searches its own files (and computers) to identify and produce responsive information?; where the computer was not directly involved in the cause of action; where there was no evidence of prior discovery violations; and where ?careful consideration of relevance and proportionality reveal[ed] that forensic imaging was not justified in this case? including because there were ?ample? alternative avenues for discovery (e.g, requests for admission, depositions) and because much of the information sought fell within the categories of ESI identified in Illinois to be presumptively not discoverable; the court also addressed Plaintiff?s privacy concerns
Nature of Case: Personal injury (appeal)
Electronic Data Involved: Forensic imaging of computers (including work computer)
Key Insight: Where Defendant sought to avoid production or allocate costs related to the production of allegedly inaccessible information based on the alleged cost and burdens related to processing and review but acknowledged that some of the ?raw data associated with the documents? was accessible, the court concluded that the affidavit from an attorney for the defendant?s counsel who had not ?attested to having a technical understanding of, or background in, electronically stored data? was not by itself ?enough evidence? to demonstrate that the at-issue ESI was not reasonably accessible and ordered defendant to submit additional evidence re: whether the information was stored in a ?readily usable format?
Nature of Case: Breach of contract, breach of duty of loyalty, misappropriation of trade secrets and tortious interference with a business relationship
Electronic Data Involved: ESI
Key Insight: Court denied petition for writ of mandamus, where real party properly requested native and near-native format of production for ESI, including metadata, under Texas Rules of Civil Procedure 196.4. Court said that relator was not entitled to unilaterally produce ESI in a ?reasonably usable? format and had offered only conclusory testimony that production of ESI in the requested format was unduly burdensome.
Nature of Case: Insurance claim
Electronic Data Involved: ESI
Key Insight: Court denied motion to compel Defendant to search for documents from non-U.S. points of sale where the court found such documents would be of ?marginal relevance at best? and that the burden and expense of production outweighed the benefit, noting that such production would ?vastly expand? an already voluminous production, would entail additional translation costs, and would ?potentially require the involvement of additional entities or foreign law??; court also declined to compel Defendant to conduct searches of Account Representatives for 170 different airlines where Plaintiff failed to establish that the expanded search would reveal additional relevant information and noting that the productions of third party air carriers had not revealed any ?glaring deficiencies? in Defendant?s production
Nature of Case: Class action
Electronic Data Involved: ESI
Key Insight: Addressing Plaintiff?s Motion to Compel, court overruled Defendant?s objection to producing ESI in native format with metadata where Defendant failed to indicate in its objection the form of production it intended to use instead and did not support its objection by explaining why it could not or should not be required to produce as requested and, in fact, admitted that it had previously produced material in native format; court denied without prejudice Plaintiff?s motion to compel responses outlining Defendant?s search efforts (sometimes called “discovery on discovery”) where Plaintiff?s counsel failed to confer with Defense counsel prior to bringing the motion, as is required by the District of Kansas? ESI Guidelines
Nature of Case: Title VII: racial discrimination, retaliatory conduct
Electronic Data Involved: ESI
Key Insight: Trial court abused its discretion by ordering forensic examination of landlord?s hard drive where ?[t]he procedural protections identified in In re Weekley Homes require that ?the requesting party must show that the responding party has somehow defaulted in its obligation to search its records and produce the requested data,? and that ?the responding party?s production ?has been inadequate and that a search of the opponent?s [electronic storage device] could recover … relevant materials[],?? where the tenant provided no evidentiary basis for his suspicion that the at-issue invoices were falsified, and where the tenant ?did not put on any evidence demonstrating that the kind of information he sought could be retrieved by the examination ultimately ordered by the trial court and the record [wa]s devoid of any attempt by Nguyen to explain this search methodology except for his counsel?s explanation that the search would attempt to exclude communications with counsel?
Electronic Data Involved: Accounting-related ESI
Key Insight: Highest criminal court in Texas reversed the judgment of the court of appeals that had overturned defendant?s conviction upon concluding that the trial court ?had acted within its discretion? in concluding that the state met its threshold burden of authentication sufficient to admit defendant?s text messages to the victim where authentication can be satisfied by direct or circumstantial evidence and where the victim testified that she knew the messages were from defendant because: he had called from that number in the past, ?the context of the text messages convinced her that the messages were from him,? and ?he actually called her from that same phone number during the course of that very text message exchange?
Nature of Case: Criminal: Kidnapping, assault and related crimes
Electronic Data Involved: Text messages from Defendant to the victim
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