Archive: August 2012

1
Court Shifts Discovery Costs to Plaintiffs “At Least Until the Class Action Determination is Made”
2
In Kleen Products Litigation, Parties Stipulate that Predictive Coding is Not Required At This Time
3
Second Circuit Rejects “the Notion that a Failure to Institute a ‘Litigation Hold’ Constitutes Gross Negligence Per Se”
4
Establishing an Adequate Search & Why “Custodians [Cannot] be Trusted to Run Effective Searches of Their Own Files”

Court Shifts Discovery Costs to Plaintiffs “At Least Until the Class Action Determination is Made”

Boeynaems v. LA Fitness Int’l LLC, Nos. 10-2326, 11- 2644, 2012 WL 3536306 (E.D. Pa. Aug. 16, 2012)

Here, the court considered cost allocation in discovery prior to class certification and, taking into account Defendant’s already significant production and related expenditures, concluded that “where (1) class certification is pending, and (2) the plaintiffs have asked for very extensive discovery, compliance with which will be very expensive, that absent compelling equitable circumstances to the contrary, the plaintiffs should pay for the discovery they seek.”  Thus, Plaintiffs were ordered to bear the costs of additional discovery “at least until the class action determination is made.”

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In Kleen Products Litigation, Parties Stipulate that Predictive Coding is Not Required At This Time

Kleen Prods. LLC v. Packaging Corp. of Am., No. 1:10-cv-05711 (N.D. Ill. Aug. 21, 2012)

In the ongoing Kleen Products litigation in the Northern District of Illinois, the parties have been litigating the question of whether defendants should be required to utilize predictive coding to conduct their discovery review.  The Court has held several days of evidentiary hearings on this issue over the past several months and the parties have now entered into a stipulation, signed by the Court (Magistrate Judge Nan Nolan), wherein, among other things, the plaintiffs have agreed that they will not argue that predictive coding must be utilized with respect to any request for production served on any defendant prior to October 1, 2013.  After that, the parties reserve all rights, and agree to meet and confer regarding appropriate search methodologies for newly collected documents.  In light of this stipulation, no further evidentiary hearings on the matter are scheduled.

A copy of the stipulation is available here.

Second Circuit Rejects “the Notion that a Failure to Institute a ‘Litigation Hold’ Constitutes Gross Negligence Per Se”

Chin v. Port Authority of New York & New Jersey, — F.3d —, 2012 WL 2760776 (2d Cir. July 10, 2012)

On appeal, Plaintiff argued that Defendant’s failure to issue a litigation hold “amounted to gross, rather than simple, negligence” and that the District Court erred in denying a motion for sanctions in the form of an adverse inference.  Finding the District Court did not abuse its discretion, the Circuit Court rejected "the notion that a failure to institute a ‘litigation hold’ constitutes gross negligence per se.” 

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Establishing an Adequate Search & Why “Custodians [Cannot] be Trusted to Run Effective Searches of Their Own Files”

Nat’l Day Laborer Org. Network v. United States Immigration & Customs Enforcement Agency, — F. Supp. 2d —, 2012 WL 2878130 (S.D.N.Y. July 13, 2012)

In this FOIA case, Judge Shira Scheindlin addressed the adequacy of the government’s search for information responsive to plaintiffs’ substantial FOIA request.

This case addresses plaintiffs’ request for information pursuant to the federal Freedom of Information Act (FOIA) and their assertions that defendants’ searches for such information were inadequate.  In its analysis, the court expressly acknowledged that “the search obligations under FOIA are not identical to those under the Federal Rules of Civil Procedure,” but nonetheless reasoned that “much of the logic behind the increasingly well-developed caselaw on e-discovery searches is instructive in the FOIA context . . . .” 

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