Local Rule – Page 3 – Electronic Discovery Law

BancorpSouth Bank v. Kleinpeter Trace, LLC, No. 2013 CA 1396, 2014 WL 4925698 (La. Ct. App. Oct. 1, 2014)

Dec 01 2014

Key Insight: Appellate court concluded that trial court did not err in ordering that adverse inference instruction be given to jury as to contents of particular file where plaintiff had notice that file, which was within plaintiff?s control, was relevant to pending litigation, it attempted to refer to contents of file in support of motion for summary judgment, and plaintiff?s explanation for loss of the file was pretextual and not reasonable; appellate court reversed trial court?s decision to impose ultimate sanction of dismissal because record did not support conclusion that plaintiff willfully or in bad faith failed to comply with trial court?s orders, since dismissal rested on conduct that did not relate to court-ordered discovery and in most instances occurred prior to the first discovery order; appellate court vacated trial court?s award of attorneys? fees in favor of defendant and remanded the matter to the trial court for a determination of reasonable expenses because the basis for the award was unclear and the award appeared to include other fees and costs unrelated to the particular discovery motion for which they were awarded

Nature of Case: Suit to enforce obligations arising out of promissory notes

Electronic Data Involved: ESI, email, spreadsheets

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

PersonalWeb Techs., LLC v. Google Inc., No. C13-01317 EJD (HRL), 2014 WL 4088201 (N.D. Cal. Aug. 19, 2014)

Dec 01 2014

Key Insight: Among other rulings on the parties? respective discovery motions, the court: (1) denied plaintiff?s request for an order compelling defendants to produce document retention policies and litigation hold notices issued in the case, because litigation hold notice was protected as attorney-client communication and/or work product and burden of producing requested material, however minimal, outweighed its likely benefit; court noted that plaintiff waited over one year to follow up on particular request, relevance of material to case merits was dubious, and timing of motion following court?s finding that plaintiff had committed spoliation by failing to timely file its litigation hold suggested that plaintiff?s motivation was retaliatory; and (2) denying plaintiff?s request for source code and documents related to newest version of accused product, which version was still in development, since discovery into such material would be premature because an incomplete, non-?live? product cannot be evaluated for infringement in patent litigation

Nature of Case: Patent infringement

Electronic Data Involved: ESI, litigation hold notice, source code

Sasol N. Am., Inc. v. Kan. State Inst. for Commercialization, No. 14-mc-218-JWL-KMH, 2014 WL 3894357 (D. Kan. Aug. 8, 2014)

Dec 01 2014

Key Insight: Despite fact that plaintiff served all-encompassing subpoena to third parties without first attempting to access the breadth of information from the defendant, in light of nonparty?s unique relationship with defendant in the underlying Texas litigation, the potential for indemnification, its financial interest in the Texas litigation, and nonparty?s repeated (yet unfulfilled) promises to produce responsive material, court determined it was appropriate for nonparty to bear some burden and that limited production was appropriate; court narrowed relevant timeframe for search and ordered nonparty to use search terms proposed by plaintiff and produce its ESI, including emails, attachments, exhibits and word processing documents, which contain those nine search terms

Nature of Case: Subpoena issued in a patent infringement and trade secret case pending in the Southern District of Texas

Electronic Data Involved: Email

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

EEOC v. JP Morgan Chase Bank, N.A., 295 F.R.D. 166 (S.D. Ohio 2013)

Dec 01 2013

Key Insight: Defendant’s failure to establish a litigation hold and resulting loss of relevant data through routine purge was inexcusable and presented exceptional circumstances that removed such conduct from the protections provided by Rule 37(c); as sanction, court denied defendant’s motion for summary judgment which turned in part on skill login data, and would give permissive adverse inference instruction regarding the destroyed evidence at trial

Nature of Case: Sex discrimination claims

Electronic Data Involved: Skill login data

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

Tag:Local Rule