Third Party Discovery – Page 4 – Electronic Discovery Law

E.E.O.C. v. The Amer. Coal Co., No. 3:15-cv-01293-SMY-PMF, 2016 WL 1639682 (S.D. Ill. Apr. 26, 2016)

Dec 01 2016

Key Insight: Where non-party argued that subpoena exceeded scope of EEOC?s authority because it sought information irrelevant to the claim of sex discrimination (e.g., information re: race) and was unduly burdensome because it would take the single HR Officer approximately 500 hours to respond and take her away from other important work for the corporation, the court found that the information sought was relevant (reasoning that the standard of relevance is broad and ?generous? and that the information could ?shed light on possible discriminatory hiring practices and thereby, lead to the discovery of admissible evidence?) and that the burden did not outweigh the benefit, reasoning that ?[[o]ther than the fact that its employment records are kept in paper format in southern Illinois, [the non-party] has not provided any reason as to why its corporate human resources department cannot assist in responding to the subpoena or why it could not hire temporary staff to assist.?

Nature of Case: Employment litigation: sex discrimination

Electronic Data Involved: Hard copy

Sweltic Chiropractic & Rehab. Ctr, Inc. v. Foot Levelers, Inc., No. 2:16-cv-236, 2016 WL 1657922 (S.D. Ohio Apr. 27, 2016)

Dec 01 2016

Key Insight: Where third party refused to preserve potentially relevant evidence absent a court order and maintained a retention policy that would result in the automatic deletion of the at-issue information, court granted in part Plaintiff?s motion to compel preservation (finding that the requested scope of preservation appeared overly broad) but declined to compel forensic imaging

Nature of Case: Telephone Consumer Protection Act

Electronic Data Involved: Fax transmission reports and other ESI identifying fax numbers that received advertisements

In re Ex Parte Application of Global Energy Horizons Ltd., No. 14-3180, 2016 WL 1657889 (3d Cir. Apr. 26, 2016)

Dec 01 2016

Key Insight: Third Circuit affirmed denial of Global Energy Horizon?s motion to compel reasoning that the District Court was ?on firm ground? in determining the burden imposed upon the non-party would ?likely have been intrusive and burdensome in violation of Rule 45 despite Global?s offer to pay for reasonable cost? where responding to the subpoena seeking ?all communications between [the non-party?s] 400 to 450 employees? and another entity and any financial documents relating to certain technology would require that each employee be interviewed and their hard drives be copied and reasoning that the District Court was reasonable in deciding not to modify the subpoena where the non-party had already ?spent thousands of dollars and substantial time? responding to prior requests; Circuit Court also affirmed lower court?s finding that non-party was under no duty to preserve emails where the record ?did not lead the court to conclude? that the non-party ?should have known that litigation was imminent? and ?Global never sought a litigation hold on [the non-party?s] electronically stored information?

Electronic Data Involved: ESI

Steward Health Care Sys. LLC v. Blue Cross & Blue Shield of Rhode Island, No. 15-272, 2016 WL 8716426 (E.D. Pa. Nov. 4, 2016)

Dec 01 2016

Key Insight: Third party objected to Subpoena to produce documents alleging undue burden and significant expense and refused to comply without a cost-shifting order. The Court consequently granted the requesting party?s motion to compel and the third party was ordered to produce all responsive documents by the ?most reasonable and practical method it can procure.? Following production, the third party then sought $30,603.55 in expenses. The Court?s two-prong analysis examined the expenses as to whether they were both reasonable and significant. The Court did not award attorneys? fees because the privilege and confidentiality review was a benefit only to the third party. Partial vendor costs were awarded, namely the amount it would have been had the third party used the vendor suggested by the requesting party and some additional miscellaneous costs were awarded. The Court found a total of $4,072 were expenses that resulted from compliance with the Subpoena and did qualify as ?significant expenses.?

Nature of Case: Antitrust and tort

Electronic Data Involved: Gmail

Hellers Gas, Inc. v. International Ins. Co. of Hannover Ltd. (M.D. Pa., 2016)

Jun 01 2016

Key Insight: Plaintiff failure to produce relevant and discoverable information.

Nature of Case: Insurance coverage litigation.

Electronic Data Involved: Email produced by a third party.

Keywords: Motion to compel. Specificity. Failure to specify.

View Case Opinion

Swetlic Chiropractic & Rehabilitation Center, Inc. (S.D. Ohio, 2016)

Apr 27 2016

Key Insight: anti spoliation notice to third party re fax transmission reports and meta data not reasonable without notice to party

Nature of Case: Telephone Consumer Protection Act (?TCPA?)

Electronic Data Involved: fax transmission reports

Keywords: fax meta data and automatic deletion

View Case Opinion

Bright Sols. For Dyslexia, Inc. v. Doe, No. 15-cv-01618-JSC, 2015 WL 5159125 (N.D. Cal. Sept. 2, 2015)

Dec 01 2015

Key Insight: Court granted motion for expedited discovery to discover the identity of Defendant Doe; court also granted Plaintiffs? ex parte motion for a preservation order directing eBay, PayPal, and Google to preserve account information where the third parties had no independent duty to preserve absent a court order and where Plaintiffs established that: the at-issue data was regularly destroyed by the third parties in their regular business practices, that Plaintiffs would be ?irreparably harmed? by the loss of the at-issue data (because they could not serve Defendant and stop the alleged infringement), and that the third parties had the capability to maintain the information, particularly because of the limited nature of the request

Nature of Case: Trademark and copyright infringement

S.E.C. v. CKB168 Holdings, Ltd., No. 13-CV-5584 (RRM), 2015 WL 4872553 (E.D.N.Y. Jan. 7, 2015)

Dec 01 2015

Key Insight: Rejecting defendants? explanation that their failure to preserve was the result of a vendor?s refusal to continue assistance for the reason of non-payment, the court found that defendants? had a duty to preserve the information stored on the corporate server that began ?well before the vendor stopped providing services? and reasoned that it was defendants? obligation to ?take ?all necessary steps to guarantee that relevant data was both preserved and produced,?? and also found that defendants were ?at a minimum grossly negligent? for failing to preserve relevant evidence where there was no evidence of efforts to preserve a readable copy of the corporate server nor evidence that they sought modification of the freeze on their assets in able to make payments to the vendor; magistrate judge recommended sanction of an adverse inference

Nature of Case: Securities and Exchange Commission investigation (SEC)

Electronic Data Involved: Contents of corporate server / “back office data”

United States v. Dish Network, LLC, No. 09-3073, 2015 WL 5970446 (C.D. Ill. Oct. 13, 2015)

Dec 01 2015

Key Insight: For defendant?s failure to preserve and produce relevant evidence, copies or versions of which were discovered on a third party?s hard drive (e.g. correspondence between Defendant?s employee and the third party that were not preserved and produced by the defendant), the court found that Plaintiff ?suffered some prejudice? and thus sanctioned Defendant by taking it as ?established fact? that Defendant had similar communications with all of its ?Order Entry Retailers? (of which the relevant third party was one) of the same ?substantive type and quantity? as those discovered on the third party?s hard drive

Nature of Case: FTC Investigation: TCPA

Electronic Data Involved: ESI, email

Am. Fed. Of Musicians of the U.S. and Canada v. Skodam Films, LLC, NO. 3:15-mc-122-M-BN, 2015 WL 7771078 (N.D. Tex. Dec. 3, 2015)

Dec 01 2015

Key Insight: Court concluded non-party?s objections to the at-issue subpoena were subject to Rule 34 requirements for objections and, addressing the non-party?s claims of overbreadth and burden, modified the subpoena upon finding that the document requests were ?facially overbroad and pose[d] an undue burden? because they called for the production of ?apparently every document? related to the making of the at-issue movie

Nature of Case: Breach of contract

Electronic Data Involved: Third party discovery, including ESI

Tag:Third Party Discovery