Archive: June 2013

1
When is an Adverse Inference Instruction Not a Sanction?
2
Conducting “Traditional Relevance Analysis,” Court Denies Full Access to Plaintiff’s Social Networking Accounts
3
No Sanctions For Failure to Preserve Where Deleted Call Recordings “would not have been supportive of Plaintiff’s claim”
4
Special Master Analyzes Privilege Search Terms, Addresses Objection that they were Overbroad
5
Opinion Highlights Questions Surrounding Proper Predictive Coding Protocols

When is an Adverse Inference Instruction Not a Sanction?

Mali v. Fed. Ins. Co., —F.3d—, 2013 WL 2631369 (2d Cir. June 13, 2013)

Here, the Second Circuit addressed the difference between an adverse inference instruction as a sanction and an instruction “that simply explains to the jurors inferences they are free to draw in considering circumstantial evidence” and determined that the at-issue instruction was not a sanction and that the trial court did not err.  The instruction permitted jurors to infer that an unproduced photograph was unfavorable to Plaintiffs, provided they believed that the photograph was in the plaintiffs’ possession and that the non-production was not satisfactorily explained.

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Conducting “Traditional Relevance Analysis,” Court Denies Full Access to Plaintiff’s Social Networking Accounts

Giacchetto v. Patchogue-Medford Union Free School Dist., No. CV 11-6323(ADS)(AKT), 2013 WL 2897054 (E.D.N.Y. May 6, 2013)

In this case, the court conducted a “traditional relevance analysis” to assess Defendant’s request for broad access to Plaintiff’s social networking accounts and concluded that only limited discovery was appropriate.  Specifically, the court concluded that “unfettered access to Plaintiff’s social networking history will not be permitted simply because Plaintiff has a claim for emotional distress damages.”  Thus, the court ordered Plaintiff’s counsel to review Plaintiff’s postings and to produce those determined to be relevant, “keeping in mind the broad scope of discovery contemplated under Rule 26.”

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No Sanctions For Failure to Preserve Where Deleted Call Recordings “would not have been supportive of Plaintiff’s claim”

Cottle-Banks v. Cox Commc’ns, Inc., No. 10cv2133-GPC (WVG), 2013 WL 2244333 (S.D. Cal. May 21, 2013)

In this putative class action, Plaintiff sought sanctions for Defendant’s failure to preserve potentially relevant customer call recordings.  Although the court found that Defendant was negligent in its failure to preserve (and thus had the requisite “culpable state of mind”), no sanctions were ordered because the court concluded that the call recordings would not have supported Plaintiff’s case.

In September 2010, Plaintiff filed her initial complaint alleging Defendant’s violation of the federal Cable Act by charging rental fees for cable converter boxes and/or remote controls that class members “did not affirmatively request by name.”  In July 2011, Plaintiff filed an amended complaint, after her initial complaint was dismissed.

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Special Master Analyzes Privilege Search Terms, Addresses Objection that they were Overbroad

Dornoch Holdings Int’l, LLC v. Conagra Foods Lamb Weston, Inc., No. 1:10-cv-00135 TJH, 2013 WL 2384235 (D. Idaho May 1, 2013)

In this case, a Special Master was directed to obtain ESI (more than one million documents) from a bankruptcy trustee, to review it for privilege, and to prepare a privilege log. The documents were screened utilizing keyword search terms.  Upon production of the resulting privilege log, Defendants objected that the terms used were overly broad and that the log contained non-privileged documents.  The Special Master therefore conducted an analysis of the terms used and made recommendations to address the objection.

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Opinion Highlights Questions Surrounding Proper Predictive Coding Protocols

Gordon v. Kaleida Health, No. 08-CV-378S(F), 2013 WL 2250579 (W.D.N.Y. May 21, 2013)

In this case, the court considered Plaintiffs’ motion “to compel Defendants to meet and confer with respect to establishing an agreed protocol for implementing the use of predictive coding software” and for an order that if the parties could not agree on an ESI protocol, that each side would submit their proposal for the court’s determination as to which should be adopted.  Although Defendants initially objected to meeting and conferring with Plaintiffs and their experts based on Plaintiffs’ expert’s prior work for Defendants in the same case, the issue was ultimately resolved when Defendants indicated they were prepared to meet and confer (perhaps motivated by the court’s denial of their motion to disqualify Plaintiffs’ experts).  Despite the relatively simple resolution of Plaintiffs’ motion to compel, the parties’ arguments raised interesting questions related to the level of cooperation required when one side has chosen to utilize predictive coding.

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