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Category Archives: CASE SUMMARIES

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Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment

Posted in CASE SUMMARIES

Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015) In this copyright infringement case, the court found that Defendants “spoiled evidence, committed perjury, and failed to discharge their duties to conduct discovery reasonably and in good faith” and recommended default judgment.  Notably, in addition to more familiar issues surrounding… Continue Reading

Court Declines to Compel Production of Backup Tapes, Active Emails in Native Format

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United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225 (S.D. Cal. 2015) In this case, the court addressed Plaintiffs’ demands that Defendants restore ESI contained on disaster recovery backup tapes for production in native format and produce active emails in native format with metadata.  Upon finding the backup tapes inaccessible, the court… Continue Reading

In Patent Case, Court Indicates Importance of Damages Disclosures to Proportionality Calculation

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Corning Optical Commc’ns Wireless Ltd. v. Solid, Inc., No. 5:14-cv-03750-PSG, 2015 WL 1726749 (N.D. Cal. Apr. 14, 2015) In this patent infringement case, the court addressed the “classic chicken-and-egg” problem of requiring initial disclosures regarding damages where “[t]o provide meaningful calculations, patentees need lots of information from accused infringers. But the expense of producing lots… Continue Reading

Court Allows Deposition of Court-Appointed Forensic Expert, Cites Benefit to the Court, Orders Special Master to Participate in Questioning

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Procaps S.A. v. Patheon, Inc., No. 12-24356-CIV, 2015 WL 1880346 (S.D. Fla. Apr. 24, 2015) In this opinion, the court addressed Defendant’s motion to take the deposition of the court-appointed, neutral, computer forensic expert who conducted a forensic analysis of Plaintiff’s electronic media and discovered a number of deletions.  Plaintiff and Defendant differed regarding the… Continue Reading

Court Imposes “Death Penalty Order” for Discovery Violations, Rejects Reliance on Retention Policy

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Crews v. Avco Corp., No. 70756-6-I, 2015 WL 1541179 (Wash. Ct. App.  Apr. 6, 2015) In this case, the trial court held Defendant in contempt and ultimately imposed a “death penalty order” for discovery violations, including the failure to produce relevant information.  Notably, the trial court rejected Defendant’s reliance on its document retention policy as… Continue Reading

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

Posted in CASE SUMMARIES

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… 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.”

Posted in CASE SUMMARIES

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… Continue Reading

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

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Colosi v. Jones Lang LaSalle Amers. Inc., 781 F.3d 293 (6th Cir. 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… Continue Reading

“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.”

Posted in CASE SUMMARIES

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… Continue Reading

Magistrate Judge Peck Addresses TAR, Provides Insight on Important Issues

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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,… Continue Reading

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

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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,… Continue Reading

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

Posted in CASE SUMMARIES

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. … 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

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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,… Continue Reading

Applying Proportionality to Preservation, Court Grants Permission to Dispose of Computers

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Lord Abbett Mun. Income Fund., Inc v. Asami, No. C-12-03694 DMR, 2014 WL 5477639 (N.D. Cal. Oct. 29, 2014) Following an order granting summary judgment in their favor, the “Board Member Defendants” notified the plaintiff that they would no longer contribute to the cost of storing 159 computers, but refused to consent to allowing Plaintiff… Continue Reading

Frustrated Court Crafts “New and Simpler Approach to Discovery,” Identifies Search Terms to be Utilized by Plaintiff

Posted in CASE SUMMARIES

Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014) In this breach of contract case, the court granted in part Defendant’s motion to compel and, in light of Plaintiff’s piecemeal production (which the court had earlier cautioned against) and other discovery failures, fashioned a “new and simpler approach” to discovery,… Continue Reading

Software Licensing Restrictions No Shield Against Production

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Pero v. Norfolk S. Ry., Co., No. 3:14-CV-16-PLR-CCS, 2014 WL 6772619 (E.D. Tenn. Dec. 1, 2014) In this case, the court declined to require the plaintiff to view the at-issue video at Defendant’s counsel’s office or to obtain a license for the proprietary viewing software and ordered the defendant to either produce a laptop with… Continue Reading

Court Declines to Preclude “Eyes On” Review for Privilege

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Good v. Am. Water Works Co., Inc., No. 2:14-01374, 2014 WL 5486827 (S.D. W. Va. Oct. 29, 2014) In this case, the parties made an effort to “craft an agreement respecting the handling of attorney-client and work product information inadvertently disclosed,” but disagreed regarding the proper procedure for identifying privileged information.  Defendants sought to “’encourage… Continue Reading

Considering Motion to Compel, Court Asks Whether Discovery Responses have been “Fair”

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Finjan, Inc. v. Blue Coat Sys., Inc., No. 5:13-cv-03999-BLF, 2014 WL 5321095 (N.D. Cal. Oct. 17, 2014) In this patent infringement case, Defendant objected to “producing custodial email from archival systems when [the Plaintiff] is not able to do the same in return.”  Plaintiff filed a motion to compel.  In assessing the motion, the court… Continue Reading

Back to Basics: Court Orders Compliance with Rule 34

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Venture Corp. Ltd. v. Barrett, No. 5:13-cv-03384-PSG, 2014 WL 5305575 (N.D. Cal. Oct. 16, 2014) Most lawyers (and hopefully judges) would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or… Continue Reading

Second Circuit Vacates Conviction for Failure to Authenticate Printed Profile from “Russian equivalent of Facebook”

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United States v. Vayner, — F.3d —, 2014 WL 4942227 (2d Cir. Oct. 3, 2014) In this case, the Second Circuit vacated the defendant’s conviction “on a single charge of transfer of a false identification document” upon concluding that the district court erred in admitting a printout of the defendant’s alleged profile on “the Russian… Continue Reading

Citing Ethical Implications, Court Denies Motion to Appoint Coordinating Discovery Attorney in Criminal Case

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United States v. Hernandez, No. 14 Cr. 499(KBF), 2014 WL 4510266 (S.D.N.Y. Sept. 12, 2014) Citing ethical implications, the District Court in this criminal case denied nine defendants’ motion to “appoint a tenth attorney to act as a Coordinating Discovery Attorney (“CDA”) on behalf of all nine defendants.” The Court concluded that “[a] vendor with an… Continue Reading

Court Approves Use of Predictive Coding Despite Objection to “Unproven Technology”

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Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, Nos. 2685-11, 8393-12 (T.C. Sept. 17, 2014) In this case, the court approved petitioners’  (Dynamo Holdings Ltd. Partnership et. al.) use of predictive coding to identify potentially responsive and privileged data contained on two backup tapes, despite respondent’s  (Commissioner of Internal Revenue) objection that the technology… Continue Reading

Applying Proportionality, Court Denies Motion to Compel Additional Search for ESI, Reminds Parties of Other Discovery Tools

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United States v. Univ. Nebraska at Kearney, No. 4:11CV3209, 2014 WL 4215381 (D. Neb. Aug. 25, 2014) In this housing discrimination case, the parties disagreed regarding the proper scope of discovery and plaintiff’s proposed search terms.  Plaintiff sought the production of ESI related to requests for accommodation of a disability in every context (e.g., housing,… Continue Reading