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

SK Hynix, Inc. v. Rambus, Inc., No. C-00-20905 RMW, 2013 WL 1915865 (N.D. Cal. May 8, 2013)

In this ongoing patent infringement action, a major question has been whether Rambus’s destruction of documents constituted spoliation and, if so, what sanctions should be imposed. Different courts considering the same facts (but involving different plaintiffs) came to different conclusions.  Upon its initial consideration of the question, the district court in the Northern District of California determined that “Rambus had not spoliated documents” and that there was “no factual basis for an unclean hands defense” as asserted by SK hynix.  (See summary here.)  A jury subsequently returned verdicts in favor of Rambus and the court therefore “entered final judgment of infringement with respect to ten Rambus patent claims” and awarded judgment of “$349,035,842 after a remittitur plus prejudgment interest, and required SK hynix to pay specified royalties to Rambus on an ongoing basis.”  A district court in the District of Delaware (in a case involving Plaintiff Micron Technology, Inc.) disagreed, however, and found that sanctions were warranted for Rambus’s spoliation of documents.  (See summary here.)  The court therefore declared the patents in suit unenforceable against the plaintiff in that case.

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EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL, 2013 WL 1960621 (Del. Ch. May 6, 2013)

Previously, the court ordered the parties to “retain a single discovery vendor to be used by both sides” and to “conduct document review with the assistance of predictive coding.”  (See summary, here.)  On May 6, the court entered a new order, stating that Defendants could retain their chosen vendor and utilize computer assisted review but that the parties would not be required to retain a single vendor to be used by both sides and that “Plaintiffs may conduct document review using traditional review methods.”

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Country Vintner of North Carolina, LLC v. E & J Gallo Winery, Inc., ---F. 3d.---, 2013 WL 1789728 (4th Cir. Apr. 29, 2013)

In this case, the Fourth Circuit clarified “what expenses related to electronically stored information (“ESI”) are taxable under the federal taxation-of-costs statute as '[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case'” and affirmed the district court’s order “taxing only the costs of converting electronic files to non-editable formats, and transferring files onto CDs.”

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In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013)

In this product liability case, Plaintiffs’ Steering Committee objected to Biomet’s reliance on keyword searching to initially reduce the volume of information it then subjected to predictive coding and sought to require Biomet to start again and to utilize only predictive coding, with plaintiffs’ input.  The court concluded that Biomet’s efforts complied with its discovery obligations under the civil rules.

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W Holding Co., Inc. v. Chartis Ins. Co. of Puerto Rico, No. CIV. 11-2271 GAG, 2013 WL 1352426 (D.P.R. Apr. 3, 2013)

In this case the court addressed competing proposed protocols for the discovery of electronically stored information and declined to approve a provision that would require cost-shifting, among others.  Notably, the court rejected the argument that the at-issue ESI was inaccessible (thus justifying cost-shifting) because the responding party did not show “that access to [the data] is hindered by any unique technological hurdles.”

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Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013)

In this personal injury action, the court imposed spoliation sanctions for Plaintiff’s failure to preserve his Facebook account.

Plaintiff alleged that as the result of a work-related accident he sustained numerous injuries that rendered him permanently disabled.  Defendants sought production of information related to Plaintiff’s social media accounts and online business activities such as eBay.  In response, Plaintiff provided signed authorizations for the release of information from certain sites, but did not include authorization for the release of records from Facebook.

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In what is possibly the final chapter to last year's Da Silva Moore predictive coding saga, the Second Circuit has denied Plaintiffs' petition for a writ of mandamus compelling the recusal of Magistrate Judge Andrew Peck.  For those unfamiliar with the issues in this case, copies of the underlying decisions from both Magistrate Judge Peck and District Court Judge Carter are available here and here.  While a copy of the Second Circuit's denial is available below, the full text of the order states:

Petitioners, through counsel, petition this Court for a writ of mandamus compelling the recusal of Magistrate Judge Andrew J. Peck.  Upon due consideration, it is hereby ORDERED that the mandamus petition is DENIED because Petitioners have not “clearly and indisputably demonstrate[d] that [Magistrate Judge Peck] abused [his] discretion” in denying their district court recusal motion, In re Basciano, 542 F. 3d 950, 956 (2d Cir. 2008) (internal quotation marks omitted) (quoting In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312-13 (2d Cir. 1988)), or that the district court erred in overruling their objection to that decision.

A copy of the court's order is available here.

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In re Coventry Healthcare, Inc. ERISA Litig., No. AW 09-2661, 2013 WL 1187909 (D. Md. Mar. 21, 2013)

In this brief opinion, the court considered Defendants’ claim that the burden of producing the requested ESI outweighed its potential benefit to the class action plaintiffs and granted Plaintiffs’ motion to compel.  Specifically, Defendants claimed that Plaintiffs’ search terms, as applied to the ESI of selected custodians from the relevant discovery time frame, “hit” on approximately 200,000 documents and that it would cost approximately $388,000 “to process host and review the data for responsiveness and privilege.”  Defendants did not, however, suggest alternative measures to accommodate Plaintiffs’ discovery needs “other than negotiating more refined search terms.” 

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EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH (D. Colo. Feb. 27, 2013)

Previously in this case, the court ordered broad discovery of the claimants’ social media, text messages and email.  (See a summary of that opinion, here.)  In this opinion, the court imposed sanctions for the EEOC’s actions which resulted in unnecessary delays and expense for the defendant, including actions related to the facilitation of the court ordered discovery.  Notably, the sanctions were imposed pursuant to Rule 16(f), based on the Tenth Circuit’s “broader” interpretation of its application.

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Juster Acquisition Co., LLC v. N. Hudson Sewerage Auth., No. 12-3427 (JLL), 2013 WL 541972 (D.N.J. Feb. 11, 2013)

In this case, the court denied Defendant’s motion for a protective order “regarding the sixty-seven (67) electronic word searches” demanded by the plaintiff.  It also denied Defendant’s request that the cost of running those searches be shifted to the plaintiff.

Plaintiff’s first Request for Production included a list of 67 proposed search terms to be run against Defendant’s ESI.  In response, Defendant sought a protective order or, alternatively, an order shifting the costs associated with the search, arguing it was “entitled” to a protective order because it had already produced 8000 pages of responsive documents (in hard copy) and because, in its view, the requested search terms were “quite broad and vague.”

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Gabriel Techs., Corp. v. Qualcomm, Inc., No. 08CV1992 AJB (MDD), 2013 WL 410103 (S.D. Cal. Feb. 1, 2013)

Following entry of judgment in their favor in this patent infringement case, Defendants filed a motion seeking attorneys’ fees, including $391,928.91 for document review conducted by an outside provider of discovery services and $2,829,349.10 “attributable to computerassisted [sic], algorithm-driven document review” utilized to reduce the number of documents requiring manual review.  The court found these amounts reasonable and granted the motion in part.  Ultimately, the court awarded Defendants a total of $12,465,331.01.

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Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., No. C 12-80242 EJD (PSG), 2013 WL 256771 (N.D. Cal. Jan. 23, 2013)

In this case, the court granted in part Defendant’s Motion to Quash upon finding that Google’s production of metadata related to communications containing certain search terms and production of subject lines would violate the Stored Communications Act (“SCA”).

Before the court in this case was “the persnickety, but persistent, question of exactly what qualifies as ‘content,’ whose disclosure by service providers is prohibited under the Stored Communications Act.”  Specifically, the court considered Defendant’s motion to quash a subpoena served by the plaintiff upon Google, Inc. to obtain discovery for use in a foreign proceeding.  The subpoena sought information related to “a number of electronic communications sent or received by certain Gmail accounts allegedly used by employees of Tibra,” including metadata related to messages containing certain search terms and the subject lines of those messages and others which met certain criteria (e.g. sent within a certain time frame, received by certain people).

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Branhaven LLC v. Beeftek, Inc., ---F.R.D.---, 2013 WL 388429 (D. Md. Jan. 4, 2013)

In this case, the court imposed sanctions for discovery violations, including wrongful certification pursuant to Fed. R. Civ. P. 26(g) and violations of Fed. R. Civ. P. 34(b) addressing the appropriate format of production. Notably, the award was made jointly and severally against Plaintiff and counsel.

In response to each of Defendants’ Requests for Production, Plaintiff stated: “[Branhaven] will make the responsive documents available for inspection and copying at a mutually convenient time.”  The responses were signed by Plaintiff’s counsel pursuant to Rule 26(g), thus certifying that “the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.”  At the time of the response and certification, however, counsel had done little more than forward the requests to his client and had not yet been provided with any discovery responses.  Indeed, several of the primary sources for the ultimately produced data—two email servers and two laptops—had not yet been accessed, let alone searched.  Moreover, “counsel essentially admitted” that his response was intended to “buy time and technically comply with Rule 34” and also admitted that the “response was essentially meaningless in terms of identification and production of responsive documents.”

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Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013)

Upon receipt of “dueling letters” concerning the inadvertent production of privileged information (which had been redacted but could be viewed in the metadata), the court noted that such an event emphasized “the need for counsel for a producing party to keep a watchful eye over their e-discovery vendors,” but found that privilege was not waived because a Rule 502(d) order had been entered.  Indeed, the court identified the “one decretal paragraph” that stated that “Defendants' production of any documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by Defendants of any privilege applicable to those documents, including the attorney-client privilege ....“ and concluded that, “[a]ccordingly, [Defendant] ha[d] the right to claw back the minutes, no matter what the circumstances giving rise to their production were.”  (Emphasis added.)

For a full copy of this brief opinion, click here.

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Peerless Indus., Inc. v. Crimson AV, LLC, No. 1:11-cv-1768, 2013 WL 85378 (N.D. Ill. Jan. 8, 2013)

In this case, the court concluded that Defendants’ reliance on a vendor to accomplish collections from a non-party whose documents were in Defendants’ control was “insufficient” and granted Plaintiff’s motion for sanctions.  Specifically, the court ordered Defendants to “show that they in fact searched for the requested documents and, if those documents no longer exist or cannot be located," to "specifically verify what it is they cannot produce” and ordered Plaintiff to submit its bill of costs related to preparation of the motion.

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Garcia v. City of Laredo, ---F.3d---, 2012 WL 6176479 (5th Cir. Dec. 12, 2012)

On appeal, the Fifth Circuit affirmed the district court’s interpretation of the Stored Communications Act (“SCA”) and concluded that it does not apply to data stored in a personal cell phone.

Plaintiff was previously employed as a police dispatcher for the City of Laredo.  On November 15, 2008, Plaintiff’s cell phone was removed from her unlocked locker by an officer’s wife who then shared its contents with the city’s deputy assistant city manger and the interim/assistant police chief because she believed that she had discovered evidence of Plaintiff’s violations of department policy.  Later, investigators successfully downloaded one video recording and more than thirty digital images from Plaintiff’s phone, but were unable to download text messages.  Following further investigation it was determined that Plaintiff had violated department rules and regulations and she was terminated from her employment.

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Micron Tech., Inc. v. Rambus, Inc., No. 00-792-SLR (D. Del. Jan. 2, 2013)

Following remand from the Federal Circuit, the District Court considered the question of “whether Rambus acted in bad faith when it engaged in spoliation and the nature and extent of any prejudice suffered by Micron as a result . . . .” and found that “Rambus’ spoliation was done in bad faith, that the spoliation prejudiced Micron, and that the appropriate sanction [was] to declare the patents-in-suit unenforceable against Micron.”

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Day v. LSI Corp., No. CIV 11-186-TUC-CKJ, 2012 WL 6674434 (D. Ariz. Dec. 20, 2012)

In this case arising from the alleged breach of an employment contract, discrimination, and related claims, the court found that Defendant was “at fault” for failing to preserve relevant evidence and imposed serious sanctions accordingly.  Notably, the court’s analysis focused significantly on the actions of Defendant’s General Counsel, who the court found had “at least acted willfully” in his failure to preserve particular evidence, and also relied, in part, on Defendant’s failure to follow its own document retention policies.

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Bozic v. City of Washington, No. 2:11-cv-674, 2012 WL 6050610 (W.D. Pa. Dec. 5, 2012)

Addressing Plaintiff’s accusation of spoliation based on the destruction of the contents of an audio tape, the court considered “the requisite mental state or level of scienter” necessary to establish bad faith, as is required in the Third Circuit, and found that the circumstances surrounding the destruction established sufficient culpability, that it was “highly likely” that Plaintiff was materially prejudiced, and that “no lesser sanction than at least a spoliation adverse inference would avoid substantial unfairness” and ordered an adverse inference and monetary sanctions.

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Taylor v. Mitre Corp., No. 1:11-cv-1247, 2012 WL 5473573 (E.D. Va. Nov. 8, 2012) adopting recommendations of Taylor v. Mitre Corp., No. 1:11-cv-01247 (LO/IDD), 2012 WL 5473715 (E.D. Va. Sept. 10, 2012)

In this case, the Magistrate Judge found that dismissal of Plaintiff’s claims was warranted for his “egregious” discovery conduct, including physically destroying a relevant computer with a hammer and using both Evidence Eliminator and CCleaner to erase potentially relevant evidence.  The court also recommended that Plaintiff pay Defendant’s reasonable attorney’s fees and costs incurred as a result of the spoliation.  On appeal, the recommendations were adopted by the District Court.

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United States ex rel. Baker v. Cmty. Health Sys., Inc., No. 05-279 WJ/ACT, 2012 WL 5387069 (D.N.M. Oct. 3, 2012) overruling objections to United States ex rel. Baker v. Cmty. Health Sys., Inc., No. 05-279 WJ/ACT (D.N.M. Aug. 31, 2012)

In this case, the Magistrate Judge determined that sanctions were warranted for the Government’s untimely and inadequate litigation holds, which resulted in prejudice to Defendants.  As a sanction, the Magistrate Judge recommended that that the Government be ordered to produce documents that it had withheld as privileged and/or work product, that Defendants were entitled to recover reasonable attorneys fees and costs, and that the Government must show cause why additional searching should not be required.  The District Court overruled objections to the order.

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E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH, 2012 WL 5430974 (D. Colo. Nov. 7, 2012)

In this case involving allegations of sexual harassment, a hostile environment and retaliation, the court granted in part Defendant’s Motion to Compel and ordered broad discovery of class members’ social media, text messages and email.

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Carrillo v. Schneider Logistics, Inc., No. CV 11-8557-CAS (DTBx), 2012 WL 4791614 (C.D. Cal. Oct. 5, 2012)

In this case, the court concluded that Defendant failed to comply with its discovery obligations by 1) failing to conduct a reasonably diligent search, 2) improperly withholding responsive documents, and 3) failing to take adequate steps to ensure preservation.  Accordingly, the court ordered that an outside vendor be retained to search for and collect Defendant’s responsive documents and to determine if any documents had been permanently deleted, at Defendant’s expense.  The court also ordered monetary sanctions.

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EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL (Del. Ch. Oct. 15, 2012)

Following argument on partial summary judgment and a motion to dismiss in the Delaware Court of Chancery on Monday, Vice Chancellor J. Travis Laster turned to the topic of a scheduling order and, apparently without outside provocation, addressed the issue of predictive coding:

The Court: Thank you.  Why don’t you all talk about a scheduling order for the litigation on the counterclaims.  This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding.  I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.

I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor.  Pick one of these wonderful discovery super powers that is able to maintain the integrity of both side’s documents and insure that no one can access the other side’s information.  If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.

One thing I don’t want to do – one of the nice things about most of these situations is once people get to the indemnification realm, particularly if you get the business guys involved, they have some interest in working out a number and moving on.  The problem is that these types of indemnification claims can generate a huge amount of documents.  That’s why I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use.

Transcript of Motion for Partial Summary Judgment, Motion to Dismiss Counterclaim and Ruling of the Court at 66-67, EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL (Del. Ch. Oct. 15, 2012).

Following this exchange, counsel were asked if they had anything else they wished to discuss, to which both responded they did not.  Watch this blog for further developments in this case.

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Scentsy Inc. v. B.R. Chase LLC, No. 1:11-cv-00249-BLW, 2012 WL 4523112 (D. Idaho Oct. 2, 2012)

In this case involving alleged trade dress and copyright infringement and related claims, the court addressed Defendants' allegations of spoliation and focused in particular on Plaintiff’s litigation hold and document retention policies, which it concluded were “clearly unacceptable.”  Recognizing that it was “unlikely” that relevant documents were destroyed, the court nonetheless allowed depositions to be taken at Plaintiff’s expense and indicated its potential willingness to issue an adverse inference instruction or to dismiss some or all of Plaintiff’s claims if it was determined that spoliation occurred.

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Kleen Prods. LLC v. Packaging Corp. of Am., No. 10 C 5711, 2012 WL 4498465 (N.D. Ill. Sept. 28, 2012)

In this multi-defendant litigation, Plaintiffs sought additional discovery, including the identification of additional custodians and the restoration and review of Defendants’ backup tapes.  In resolving these discovery disputes, the court focused on the need for cooperation and proper consideration and application of the principal of proportionality (Fed. R. Civ. P. 26(b)(2)(C)).

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Multifeeder Tech. Inc. v. British Confectionery Co. Ltd., No. 09-1090 (JRT/TNL), 2012 WL 4128385 (D. Minn. Apr. 26, 2012); Multifeeder Tech. Inc. v. British Confectionery Co. Ltd., No. 09-1090 (JRT/TNL), 2012 WL 4135848 (D. Minn. Sept. 18, 2012)

In this case, the Magistrate Judge recommended that an adverse inference be issued, that Defendant be held in contempt and that significant monetary sanctions be imposed upon his determination that two of Defendant’s employees had intentionally spoliated evidence by deleting certain information and by failing to reveal the existence of encrypted data.  Upon the parties’ objections, the District Court adopted in part the Magistrate Judge’s recommendation, but increased the monetary sanctions imposed.

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Hynix Semiconductor, Inc. v. Rambus, Inc., No. C-00-20905 RMW (N.D. Cal. Sept. 21, 2012)

As has been previously discussed on this blog (here), two federal courts analyzing nearly identical facts came to differing conclusions regarding whether a party to both litigations had committed spoliation by destroying documents pursuant to a newly adopted document retention policy.  In Hynix Semiconductor, Inc. v. Rambus, Inc. (N.D. Cal.), the court determined that Rambus did not spoliate documents and the case was resolved in favor of Rambus (i.e., its patents were found to be enforceable and Hynix was ordered to pay damages and future royalties).  In Micron Tech., Inc. v. Rambus, Inc. (D. Del.), the court found that Rambus did spoliate documents and, as a sanction, ordered that the at-issue patents were unenforceable as to Micron.  Both cases were appealed to the Federal Circuit, which clarified the proper standard for determining when the duty to preserve arose—the crux of the spoliation question and an issue about which the two lower courts disagreed.  The Federal Circuit court concluded that the district court in the Northern District of California had “applied too narrow a standard of forseeability” with regard to the question of when litigation was reasonably anticipated and remanded the case for further consideration.

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Mailhoit v. Home Depot U.S.A., Inc., ---F.R.D.---, 2012 WL 3939063 (C.D. Cal. Sept. 7, 2012)

In this case the court addressed Defendant’s request for broad discovery of the content of Plaintiff’s social networking sites for the purpose of “test[ing] Plaintiff’s claims about her emotional and mental state.”  Because three of the four categories of information sought by Defendant failed Rule 34(b)(1)(A)’s “reasonable particularity” requirement, the court largely denied Defendant’s motion to compel.

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Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-CV-116, 2012 WL 3731483 (S.D. Ohio Aug. 28, 2012)

In this case, the court held that privilege had been waived as to 347 pages of inadvertently produced emails where, among other things, Defendant failed to establish the reasonableness of the precautions taken to prevent the disclosure and “failed to take adequate measures to rectify or mitigate the damage of the disclosure.”

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Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012)

Here, Defendant sought to compel production of discovery in several categories including “all social media content involving [Plaintiff] since July 1, 2008” that revealed or related to Plaintiff’s “‘emotion, feeling, or mental state,’ to ‘events that could be reasonably expected to produce a significant emotion, feeling, or mental state,’ or to allegations in [Plaintiff’s] complaint.”

Addressing the categories requested, the court indicated that it saw “no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.”

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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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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.

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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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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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Apple, Inc. v. Samsung Elecs. Co. Ltd., No. C 11-1846 LHK (PSG) (N.D. Cal. July 25, 2012)

In this case, the court sanctioned Defendant for the loss of relevant emails resulting from Defendant’s failure to halt the auto-delete feature of its proprietary email system and failure to appropriately follow up with employees subject to the litigation hold to ensure compliance.  As a sanction, the court ordered an adverse inference instruction allowing the jury to presume that the evidence lost was both relevant and favorable to the plaintiff.

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E.E.O.C. v. Fry’s Elecs. Inc., No. C10-1562RSL (W.D. Wash. July 3, 2012)

In this case, the court twice imposed serious sanctions for Defendant’s discovery violations and ordered the appointment of a Special Master who was to be granted broad access to Defendant’s records and personnel to “review defendant’s document retention, search, and disclosure activities” and to “report to the court regarding any as-of-yet undiscovered discovery violations.”

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Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375-PMP-VCF, 2012 WL 2342928 (D. Nev. June 20, 2012)

In this personal injury and product liability case, the court granted (in part) Defendant’s motion to compel production of the contents of Plaintiff’s Facebook and MySpace accounts from April 2007 through the present and ordered that the contents be uploaded to an external storage device and produced to defense counsel for review and identification of “discoverable” materials.

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People v. Harris, No. 2011NY080152 (N.Y. Crim. Ct. 2012)

In a highly anticipated ruling, New York Judge Matthew A. Sciarrino Jr. has entered an order requiring Twitter Inc. to respond to a subpoena from the District Attorney's Office and to produce both “non-content” and “content” information associated with the alleged account of criminal defendant Malcolm Harris.  Twitter had moved to quash the subpoena after being ordered to comply following the court's determination that Mr. Harris lacked standing to quash the subpoena himself.

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D’Onofrio v. Borough of Seaside Park, No. 09-6220 (AET), 2012 WL 1949854 (D.N.J. May 30, 2012)

Here, the court held that privilege was waived as to unintentionally produced, privileged documents where, despite the reasonableness of Defendants’ initial efforts to preclude production, subsequent warnings that something was “profoundly awry with their document production and privilege review” failed to result in Defendants’ discovery that privileged information had been produced.

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Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., No. 8:10CV365, 2012 WL 1852048 (D. Neb. May 18, 2012)

In this case, the court addressed several motions, including plaintiff’s motion for sanctions.  Upon analysis of the facts presented, the court determined that defendants made repeated misrepresentations to the court; failed to conduct an adequate search for responsive documents; and wrongfully discarded a relevant server, among other things.  Accordingly, the court ordered monetary sanctions, including payment of the costs of a forensic examination, and recommended an adverse inference instruction at trial.

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Ceglia v. Zuckerberg, No. 10-CV-00569A(F), 2012 WL 1392965 (W.D.N.Y. Apr. 19, 2012)

In this case, the court addressed whether inadvertent production of an email by an information technology expert waived the attorney-client privilege.  Finding that the plaintiff neither took reasonable steps to prevent the email’s disclosure nor acted promptly to rectify the error upon its discovery, the court held that privilege was waived.

Plaintiff claimed that the at-issue email was inadvertently produced by an information technology expert who was hired to recover a particular document from a computer at plaintiff’s counsel’s office and who was instructed to produce that document to the digital forensic consulting firm retained by the defendants.  Specifically, plaintiff alleged that the expert mistakenly copied and produced (on CD) both the document he was instructed to recover and the privileged email to which it was attached.  Interestingly, defendants’ consultant claimed never to have received the CD and instead explained that the email and the attachment were forwarded directly from plaintiff’s counsel’s email account, with a short note from the expert.  Regardless of how the email was produced, approximately two weeks later, the recipient consulting firm disseminated the email in its native format to all parties to the action.  More than two months later, plaintiff claimed that the email was inadvertently produced and requested it be returned or destroyed.

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People v. Harris, No. 2011NY080152 (N.Y. Crim. Ct.)

Following up on the case summary from last week (posted May 1, 2012) in which the court denied defendant’s motion to quash the District Attorney's subpoena and issued an order requiring the production of defendant’s user information and Tweets from Twitter, Inc., this week brings us Twitter, Inc.’s motion to quash the court’s order.  Filed on May 7, 2012, the motion seeks to quash the court’s order on the grounds that the order imposes an undue burden on Twitter for reasons including that it requires them to violate the law.

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In re Online DVD Rental Antitrust Litig., No. M 09-2029 PJH, 2012 WL 1414111 (N.D. Cal. Apr. 20, 2012)

Plaintiffs moved for review of the clerk’s taxation of costs, including those related to electronic discovery.  Noting the recent decision of the Third Circuit in Race Tires America Inc. v. Hoosier Racing Tire Corp, which narrowly interpreted 28 U.S.C. § 1920(4) and which vacated a lower court’s approval of many costs related to electronic discovery, the California court nonetheless declined to disallow the costs related to electronic discovery in this case: 

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People v. Harris, ---N.Y.S.2d---, 2012 WL 1381238 (N.Y. Crim. Ct. Apr. 20, 2012)

In this case, the court held that the defendant did not have standing to move to quash a subpoena seeking production of his Tweets and the user information associated with his Twitter account because the defendant “had no proprietary interests” in the information sought and because his claimed privacy interest was “understandable” but “without merit.”

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Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Apr. 25, 2012)

In a much anticipated opinion, District Court Judge Andrew L. Carter, Jr. has denied the objections of Plaintiffs and upheld Magistrate Judge Peck’s orders approving Defendant’s use of predictive coding to review its own documents and adopting Defendant's proposed protocol.

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Global Aerospace, Inc. v. Landow Aviation, L.P., No. CL 61040 (Vir. Cir. Ct. Apr. 23, 2012)

In this Virginia state court case, the defendants asked to be allowed to use predictive coding for the processing and production of their own ESI.  The Loudon County Circuit Judge granted the request, and "allowed" the defendants to use predictive coding, subject to objections plaintiffs may want to raise once they obtain the resulting production from the defendants.  The Virginia court's one-paragraph order states, in its substantive entirety:

Having heard argument . . . it is hereby ordered Defendants shall be allowed to proceed with the use of predictive coding for purposes of the processing and production of electronically stored information, with processing to be completed within 60 days and production to follow as soon as practicable and in no more than 60 days.  This is without prejudice to a receiving party raising with the Court an issue as to completeness or the contents of the production or the ongoing use of predictive coding.

A copy of defendants’ motion for a protective order to allow predictive coding is available here.

A copy of plaintiffs’ opposition to defendants’ motion for a protective order is available here.  (Exhibits to this opposition are not currently available.)

A copy of the court’s order granting defendants’ motion is available here.

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United Factory Furniture Corp. v. Alterwitz, No. 2:12-cv-00059-KJD-VCF, 2012 WL 1155741 (D. Nev. Apr. 6, 2012)

Here, the court granted plaintiff’s motion to compel mirror-imaging of defendants’ personal computers for the purpose of preservation where plaintiff alleged that defendants had wrongfully accessed its computer systems using the personal computers at issue, where plaintiff asserted that defendants’ ongoing use of the computers would result in the loss of relevant data, and where the court determined that in light of the circumstances of the case (and following analysis of the relevant factors) the need for mirror-imaging outweighed the burden.

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Lubber Inc. v. Optari, LLC, No. 3:11-0042, 2012 WL 899631 (M.D. Tenn. Mar. 15, 2012)

In this case, the court considered defendants’ motion for a protective order to restrict the relevant time frame for additional electronic searches and plaintiff’s motion to compel discovery in nine categories.  Upon consideration of the issues, the court denied defendants’ motion, but ordered the parties to split the expenses related to material not already produced.  Regarding plaintiff’s motion to compel, the court indicated its concern that “Plaintiff will be able to win on these issues” and therefore required that plaintiff post a $10,000 bond, intended to “allow the Plaintiff to secure this information if they wish to pursue this discovery, while at the same time offering some protection to the Defendants should they prevail.”

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Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., 674 F.3d 158 (3d Cir. 2012)

On appeal, the Third Circuit vacated the District Court’s approval of taxable costs related to electronic discovery and remanded with instruction to re-tax in accordance with this opinion.  Specifically, the court concluded that the relevant vendors’ charges “would not qualify as fees for ‘exemplification’” and that “of the numerous services the vendors performed, only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD involved ‘copying’” and were thus recoverable.

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