Local Rule – Page 3 – Electronic Discovery Law

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

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

Knoderer v. State Farm Lloyds, No. 06-13-00027-CV, 2014 WL 4699136 (Tex. App. Sep. 19, 2014)

Dec 01 2014

Key Insight: Trial court erred in granting remarkable discovery sanctions of procedural “death penalty” together with over $1 million in sanctions against plaintiffs, as destroyed evidence did not go to heart of case, but was, instead, impeachment evidence; record did not reflect the required consideration by trial court of appropriate lesser sanctions or an explanation of why case was exceptional and lesser sanctions would be inadequate; and court wrongly awarded attorneys’ fees, expert fees, and costs for the entire case rather than those related only to the sanctionable conduct

Nature of Case: Insurance dispute

Electronic Data Involved: Digital photographs

Del Gallo v. City of New York, 997 N.Y.S.2d 98 (Table) (N.Y. Sup. Ct.2014)

Dec 01 2014

Key Insight: Addressing request for discovery of Plaintiff?s social media contents, specifically LinkedIn, court indicated that ?[t]o warrant such discovery, ?defendants must establish a factual predicate for their request by identifying relevant information in plaintiff?s [social media] account — that is, information that contradicts or conflicts with plaintiff?s alleged restrictions, disabilities, and losses, and other claims?? and, although it acknowledged that Defendants could obtain information pertinent to Plaintiff?s communications with recruiters related to job offers and related inquiries, indicated that Defendants had not shown that they were entitled to Plaintiff?s communications with former colleagues about her condition or to the other materials on LinkedIn

Nature of Case: Wrongful death and personal injuries resulting from falling tree limb

Electronic Data Involved: Social Media Contents (e.g., LinkedIn)

McNabb v. City of Overland Park, No. 12-CV-2331 CM/TJJ, 2014 WL 1493124 (D. Kan. Apr. 16, 2014)

Dec 01 2014

Key Insight: Court denied motion to compel defendant to produce additional 10,189 responsive emails where plaintiff did not identify any specific discovery request for which she sought to compel production, or any specific objection thereto that she claimed to be invalid, and defendant had already produced five categories of emails totaling over 36,000 documents; court advised that plaintiff must present something more than mere speculation that search of 14 custodians’ email files using 35 proposed search terms was likely to reveal additional responsive emails, and further noted that, on its face, search term list was overly broad and likely to capture many emails having nothing to do with issues in case

Nature of Case: Sexual discrimination, harassment, hostile work environment and retaliation claims

Electronic Data Involved: Email

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

Fawcett v. Altieri, 960 N.Y.S.2d 592 (N.Y. Sup. Ct. 2013)

Dec 01 2013

Key Insight: Court acknowledged the discoverability of social media content but reasoned that ?[i]n order to obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand,? and thus denied defendant’s motion to compel

Nature of Case: Personal injury

Electronic Data Involved: Social network content (Facebook, MySpace, Friendster, Flickr, etc.)

Ameritox, Ltd. v. Millennium Labs., Inc., No. 8:11-cv-00775-T-24 TBM, 2013 WL 5656064 (M.D. Tenn. Oct. 17, 2013)

Dec 01 2013

Key Insight: Court denied defendant’s motion to quash subpoena that sought documents, deposition transcripts and exhibits from third-party that related to defendant and that were produced by defendant in third-party’s now-settled litigation with defendant because defendant failed to comply with local rule requiring submission of a joint written statement of the matters at issue in the discovery dispute; court further noted there was nothing in the record that the target of the subpoena objected to producing the requested documents, and defendant cited no local or procedural rule which prohibited the plaintiff from subpoenaing the information from the third-party before or after plaintiff requested it from defendant

Nature of Case: Motion to quash subpoena issued by plaintiff in case pending in the Middle District of Florida, listing Nashville, Tenn. as the place of production

Electronic Data Involved: Documents, deposition transcripts and exhibits produced by defendant in other, now-settled litigation

IBM Corp. v. ACS Human Servs., LLC, 999 N.E.2d 880 (Ind. Ct. App. 2013)

Dec 01 2013

Key Insight: Trial court did not abuse its discretion when it awarded third party some, but not all, of its discovery costs under court rule where court awarded all costs of non-party?s e-discovery vendor ($355,329) and one-half of non-party?s costs for dedicated document review team ($354,070), basing the 50% reduction on non-party?s ?largely unexplained? delay in producing documents and principles of general equity; nor did trial court abuse its discretion when it awarded IBM $425,179 in sanctions against same third party representing some, but not all, attorneys? fees and other costs IBM incurred as a result of non-party?s failure to comply with discovery orders, as court had authority under court rules and its inherent power to issue sanctions against non-parties, non-party?s resistance to or failure to comply with discovery orders was not substantially justified and sanctions were not otherwise unjust, and non-party?s conduct was sanctionable as IBM filed multiple motions to compel, trial court found that non-party?s opposition was not reasonable, and trial court intervened numerous times in the discovery process to secure non-party?s compliance

Nature of Case: IBM and the State of Indiana filed lawsuits against one another related to the State’s Family and Social Services Administration modernization initiatives

Electronic Data Involved: ESI

Gateway Logistics, Inc. v. Smay, No. 12SA287, 2013 WL 1557840 (Colo. Apr. 15, 2013)

Dec 01 2013

Key Insight: Where, despite defendant?s assertion of a privacy interest in his and his wife?s (a non-party) electronic devices (computers and smartphone) and phone records, the trial court failed to conduct a proper balancing test before granting Plaintiff?s motion to compel inspection and production of the records, the Supreme Court found that the trial court had abused its discretion, that the invocation of a privacy right should have triggered analysis of the relevant balancing test, and that the wife?s non-party status was a factor for consideration, and vacated the trial court?s order and remanded for further consideration

Nature of Case: Breach of fiduciary duty and misappropriation of trade secrets

Electronic Data Involved: Personal computers, smartphone

Tag:Local Rule