Electronic Discovery Law Firm : K&L Gates : Electronic Discovery Law

Bull v. United Parcel Service, Inc., --- F.3d ---, 2012 WL 10932 (3d Cir. Jan. 4, 2012)

In this case, the appellate court concluded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information,” but found that in the present case, the District Court abused its discretion in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

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In December, the Sedona Conference® made available its latest publication, International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation (Public Comment Version).  Among the information included are six Principles and attendant commentary as well as a model protective order and a “model data process and transfer protocol for use by parties and courts to better protect litigation-related data subject to data protection laws within the ambit of traditional U.S. litigation and court discovery practices.”

From the Introduction:

Here, TSC advances its position that data protection and discovery must co-exist.  Data Protection Laws, after all, are not inherently antithetical to U.S. preservation and discovery efforts. U.S. courts and parties often provide protections for personal, confidential, and sensitive information through the use of confidentiality agreements and protective orders.  Courts, in fact, have denied discovery in circumstances where privacy rights are deemed more important than the discovery sought by litigants.

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Wood v. Town of Warsaw, N.C., No. 7:10-CV-00219-D, 2011 WL 6748797 (E.D.N.C. Dec. 22, 2011)

Defendant moved to modify a subpoena which sought access to a non-party’s personal hard drive.  Upon plaintiff’s clarification that he would bear the costs of the search and cooperate to negotiate search terms and that he sought only the non-privileged ESI identified by search terms and not all contents of the drive, the court ordered that the non-party’s counsel could review the results before production and allowed the search to go forward.

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Last Atlantis Capital LLC v. AGS Specialist Partners, No. 04 C 0397, 2011 WL 6097769 (N.D. Ill. Dec. 5, 2011)

In this case, Plaintiffs proposed that Defendants share in the cost of obtaining data that Plaintiffs subpoenaed.  Obtaining the information at issue was described by the court as “the linchpin of this entire matter.”  Moreover, the court had suggested (at a status conference) that it would be “reasonable” for Defendants to aid in half the costs.  However, Defendants “steadfastly maintained that they ha[d] no independent need for the information, except for rebuttal purposes” and objected strongly to the proposed cost-sharing on the grounds that there was “neither reason nor precedent” for it.  Noting that “the time to take definitive stance on the issue ha[d] arrived,” the court agreed.

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Patel v. Havana Bar, Restaurant & Catering, No. 10-1383, 2011 WL 6029983 (E.D. Pa. Dec. 5, 2011)

In this opinion addressing the parties’ cross motions for sanctions, the court ordered an adverse inference for defendants’ failure to preserve relevant video surveillance footage and an adverse inference for plaintiff’s failure to preserve relevant witness statements.  For plaintiff’s other discovery violations, including delayed and piecemeal production of witness statements and failure to timely produce a full copy of the relevant police report, as well as for the spoliation of witness statements, the court ordered re-deposition of several witnesses at plaintiff’s expense.  The court also awarded defendants’ attorneys fees and costs “for the time and effort they expended in attempting to obtain discovery that they were entitled to receive.”

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I-Med Pharma, Inc. v. Biomatrix, Inc., No. 03-3677 (DRD), 2011 WL 6140658 (D.N.J. Dec. 9, 2011)

“This case highlights the dangers of carelessness and inattention in e-discovery.”  In this case, the court affirmed the order of the Magistrate Judge which excused plaintiff from the obligation of reviewing and producing millions of pages of documents recovered from unallocated space files in light of the extreme burden and cost of such an undertaking.

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In re Ricoh Co., Ltd. Patent Litig., No. 2011-1199, 2011 WL 5928689 (Fed. Cir. Nov. 23, 2011)

In this case, Ricoh sought review of the district court’s award of costs to Synopsys related to the parties’ use of Stratify (“a third-party electronic database service”) for the production of email.  The appellate court concluded that the district court did not err in determining that costs related to the database could be recovered pursuant to 28 U.S.C. § 1920(4), but reversed the lower court’s award in light of the parties' agreement to split the costs.

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Effective yesterday, the District of Delaware has adopted revised default standards for discovery, including electronic discovery.  The standards cover a broad range of e-discovery issues from cooperation and proportionality to preservation, privilege, and format of production, among others.  Clearly intended to provide more than just general guidance to parties before the court, the default standards are quite specific (e.g, identification of categories of ESI not presumptively subject to preservation and mandated formats for production) and parties are therefore advised to carefully consult the guidelines when practicing in the District of Delaware.

A copy of the guidelines is available for download here.

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Naaco Materials Handling Group, Inc. v. Lilly Co., No. 11-2415 AV, 2011 WL 5986649 (W.D. Tenn. Nov. 16, 2011)

In this case, the court found that defendant “failed to take reasonable steps to preserve, search for, and collect potentially relevant information . . . after its duty to preserve evidence was triggered by being served with the complaint” which may have resulted in the destruction of relevant evidence.  Further, defendant failed to present an adequately prepared and knowledgeable 30(b)(6) deponent.  Accordingly, sanctions were imposed, including, among other things, additional discovery, additional forensic imaging at defendant’s expense, and monetary sanctions.

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