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Electronic Discovery Law Blog

Legal issues, news, and best practices relating to the discovery of electronically stored information.

What the judges think: e-discovery practices and trends

Posted in NEWS & UPDATES

by Daniel Miller and Tina Miller

This article was originally published in the Lawyers Journal, The Journal of the Allegheny County Bar Association, April 3, 2015.

A recent survey of leading federal jurists indicates that many attorneys need to improve their knowledge and practices regarding e-discovery.

The “Federal Judges Survey on e-discovery Best Practices and Trends,” commissioned by the e-discovery software firm Exterro, reflects responses from 22 federal district and magistrate judges, including the Western District of Pennsylvania’s Chief Judge Joy Flowers Conti, Judge Nora Barry Fischer and Magistrate Judge Lisa Pupo Lenihan.

The judges were asked 15 multiple-choice questions covering a number of e-discovery topics. Despite the numerous and varied e-discovery seminars and training sessions currently available to practitioners, the survey results indicate that many attorneys still lack e-discovery competency. In particular, the judges complained about two main problems – a lack of knowledge about their clients’ e-discovery environment and a lack of cooperation between opposing parties and attorneys.

To read the full article, click here. Reprinted with permission from the Lawyers Journal.

To access the Federal Judges Survey on e-Discovery Best Practices and Trends, click here.

No Sanctions for Discovery Failures Resulting from Court-Ordered Seizure of Defendants’ Books and Records in a Separate Case


Perez v. Metro Dairy Corp., No. 13 CV 2109(RML), 2015 WL 1535296 (E.D.N.Y. Apr. 6, 2015)

Plaintiffs in this collective action sought spoliation sanctions for Defendants’ failure to produce certain relevant evidence, including payroll records, W-2s, cashier sheets, etc.  Defendants objected to the motion on the grounds that “all of their books, records and computers were seized” pursuant to the court’s order in a different case and that there was no opportunity to make any copies or back ups.  Accordingly, the court reasoned that Defendants had not destroyed their records and found that “[u]nder the specific circumstances of this case … defendants did not have an obligation to copy their books and records before complying with the court order.”  The court also reasoned that even if Defendants did have an obligation to preserve, there was no evidence of Defendants’ requisite culpable state of mind.  Plaintiffs’ motion for sanctions was denied. Continue Reading

“[A] a party is not required to preserve all its documents but rather only documents that the party knew or should have known were, or could be, relevant to the parties’ dispute.”


Blue Sky Travel & Tours, LLC v. Al Tayyar, —Fed. Appx.—, 2014 WL 1451636 (4th Cir. Mar. 31, 2015)

In this case, a magistrate judge imposed severe sanctions for Defendants’ failure to preserve “all documents” once litigation began.  Specifically, the magistrate judge held that “once litigation began, [Defendants] had a duty to stop its document retention policies ‘and to preserve all documents because you don’t know what may or may not be relevant.’ (Emphasis added.)”  The sanction was upheld by the district court and resulted in a $10 million award for lost profits damages.  On appeal, however, the Fourth Circuit found that the “standard applied by the magistrate judge constituted an abuse of discretion, because a party is not required to preserve all its documents but rather only documents that the party knew or should have known were, or could be, relevant to the parties’ dispute.”  Accordingly, the circuit court vacated the lower court’s profit-based damages award and remanded the case for a determination regarding: 1) when Defendants should have known that the at-issue evidence  (original invoices) could be relevant; 2) when the at-issue evidence was destroyed; and 3) whether a new trial on lost profits damages was necessary. Continue Reading

Sixth Circuit Affirms Recovery of e-Discovery Costs for Imaging Plaintiff’s Computer


Colosi v. Jones Lang LaSalle Amers. Inc., –F.3d–, 2015 WL 1186765 (6th Cir. Mar. 17, 2015)

In this opinion, the court addressed the recovery of taxable costs related to e-Discovery and concluded that “a plain reading of the statute authorizes courts to tax the reasonable cost of imaging, provided the image file was necessarily obtained for use in the case.”  Accordingly, the circuit court affirmed the lower court’s award related to the cost of imaging Plaintiff’s personal computer. Continue Reading

Upcoming Events

Posted in EVENTS

Strafford – E-Discovery Strategies: Preparing for New FRCP Amendments on Proportionality and Managing ESI

April 14, 2015
1-2:30 PM EDT

Join K&L Gates attorney Bree Kelly and her fellow panelists for a discussion of “E-Discovery Strategies: Preparing for New FRCP Amendments on Proportionality and Managing ESI.”  The discussion will cover a range of topics, including a review of the proposed amendments to Federal Rules of Civil Procedure 26(b)(1) and 37(e), strategies for achieving proportionality, best practices for preserving ESI and avoiding sanctions, best practices for information management and a review of court decisions addressing proportionality.

To learn more or to register, click here.

PBI – eDiscovery Symposium

April 17, 2015
PBI Professional Development Conference Ctr.
Heinz 57 Center, 339 Sixth Ave, 7th Floor
Pittsburgh, PA

Join K&L Gates partner Thomas J. Smith for a day of e-Discovery.  Mr. Smith will participate in two of the day’s nine informative panels.  First, at 11:20, join Mr. Smith and a panel of experts for a discussion of proposed amendments to both local and federal rules (“Amendments to FRCP/Amendments to local rules).  Then, at 3:00, Mr. Smith will moderate a panel of judges (Chief Judge Conti, Judge Kelly, and Judge Lenihan) in a roundtable discussion of important topics affecting e-Discovery practice in Federal Court (“e-Discovery Practice in Federal Court: Judges’ Roundtable Discussion).

To learn more or to register, click here.

“The power of a U.S. Court to require compliance with U.S. discovery obligations does not arise until and unless the Court has jurisdiction.”


Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd., No. 1-11-cv-824, 2015 WL 631045 (S.D. Ohio Feb. 12, 2015)

In this case, the court addressed several discovery issues, including the question of when Defendant’s duty to preserve arose.  The Intervenor/Counter Defendant asserted the duty arose in 2002.  Defendant—an Australian Corporation—asserted the duty could no t have arisen before August 2012, when it consented to U.S. jurisdiction and, “even if it had, it was not before [Defendant] was served on December 8, 2011.” Acknowledging that the defendant was not excused from the preservation obligation merely because it is a foreign company, the court nonetheless determined that because Defendant was an Australian company with no presence or significant sales in United States and because Australia was the anticipated jurisdiction of “License-related disputes,” the duty to preserve arose when Defendant was served with the complaint in December, 2011: Continue Reading

Magistrate Judge Peck Addresses TAR, Provides Insight on Important Issues


Rio Tinto PLC v. Vale S.A., —F.R.D.—, 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015)

Taking up the topic of technology-assisted review (“TAR”), Magistrate Judge Andrew Peck’s most recent opinion declares that “it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” Despite this, there remain open issues surrounding the use of TAR, including, as Magistrate Judge Peck noted, the question of “how transparent and cooperative the parties need to be with respect to the seed or training set(s).” And, while this opinion did not resolve that question (because the parties in the present case agreed to “a protocol that discloses all non-privileged documents in the control sets”), it does provide some notable commentary on the issue. Continue Reading

Court finds Defendants are Entitled to Recover $55,649.98 in e-Discovery Costs


Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW, 2015 WL 638198 (D. Colo. Feb. 13, 2015)

Plaintiffs brought a “Motion to Review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1).” Specifically, Plaintiffs sought review of the clerk’s determination “concerning the costs taxed amount of $55,649.98, which accounts for Defendants contracting with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information requested by Plaintiffs.” The court held that “[b]ecause Defendants’ costs related to the electronically stored information (“ESI”) are expenses enumerated in 28 U.S.C. § 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs’ Motion is denied.” Continue Reading

You Needn’t Keep Everything Forever: No Sanctions for Non-Party’s Failure to Produce because of Retention Policies, Technology Changes


United Corp. v. Tutu Park Ltd., No. ST-2001-CV-361, 2015 WL 457853 (V.I. Jan. 28, 2015)

In December 2012, the court in this case issued a subpoena directing Kmart Corporation (“Kmart”) to produce twenty-one categories of documents and later granted Plaintiff’s motion to compel the same.  Accordingly, Kmart produced responsive documentation, but not to Plaintiff’s satisfaction.  Plaintiff thereafter moved for sanctions and for Kmart to be held in contempt.  Concluding that Kmart made a reasonable attempt to provide responsive documentation, and acknowledging Kmart’s explanations for their inability to provide more, including the destruction of documents pursuant to their document retention policy and changes in technology, the court declined to impose sanctions or to hold Kmart in contempt. Continue Reading

For Delayed Production of Social Media and Other ESI, Court Declines to Shift Expert Costs, Awards Attorneys’ Fees; No Sanctions for Lost Text Messages


Federico v. Lincoln Military Housing, LLC, No. 2:12-cv-80, 2014 WL 7447937 (E.D. Va. Dec. 31, 2014)

In this class action case involving consolidated claims for personal injury and property damage, Plaintiffs’ production of social media posts and other electronically stored information was significantly delayed and allegedly incomplete.  The court declined to dismiss Plaintiffs’ case, however, where “a nearly complete record” was eventually produced, where the information was of “limited relevance” and where there was no showing of Plaintiffs’ bad faith.  Instead, the court declined to allocate the $29,000 Plaintiffs spent for expert assistance and indicated it would award a portion of Defendants’ attorneys’ fees.  For Plaintiffs’ failure to produce text messages, the court invoked Fed. R. Civ. P. 37(e) and declined to impose any sanctions. Continue Reading