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Category Archives: CASE SUMMARIES

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“The time to tap flexibility and creativity is during meet and confer, not after.” – Court Quashes Subpoena, Declines to Allow Plaintiff to Accept Prior Offer for Production

Posted in CASE SUMMARIES

Boston Scientific Corp. v. Lee, No. 5:14-mc-80188-BLF-PSG, 2014 WL 3851157 (N.D. Cal. Aug. 4, 2014) This case illustrates a recurring problem in all civil discovery, especially in intellectual property cases. A party demands the sun, moon and stars in a document request or interrogatory, refusing to give even a little bit. The meet and confer… Continue Reading

Sixth Circuit Addresses Spoliation, Preservation of Back-up Tapes, Affirms Denial of Sanctions

Posted in CASE SUMMARIES

Automated Solutions Corp. v. Paragon Data Sys., Inc., —F.3d—, 2014 WL 2869286 (6th Cir. June 25, 2014) In this copyright infringement case, the Sixth Circuit considered plaintiff’s arguments that the district court abused its discretion by denying plaintiff’s motion for spoliation sanctions related to defendant’s failure to preserve the information on a relevant hard drive… Continue Reading

Counsel’s Failure to “Examine Critically” Client’s Representations about “Existence and Availability of Documents” was “Overriding Reason” for Discovery Problems

Posted in CASE SUMMARIES

Brown v. Tellermate Holdings, Ltd., No. 2:11-cv-1122, 2014 WL 2987051 (S.D. Ohio July 1, 2014) While the preservation, review, and production of ESI often involves procedures and techniques which do not have direct parallels to discovery involving paper documents, the underlying principles governing discovery do not change just because ESI is involved. Counsel still have… Continue Reading

Supreme Court of Texas Clarifies Standards Governing Spoliation, Limits Imposition of Spoliation Instructions and the Presentation of Evidence of Spoliation to the Jury

Posted in CASE SUMMARIES

Brookshire Bros., Ltd. v. Aldridge, –S.W.3d–, 2014 WL 2994435 (Tex. July 3, 2013) In this case, the Supreme Court of Texas “enunciate[d] with greater clarity the standards governing whether an act of spoliation has occurred and the parameters of a trial court’s discretion to impose a remedy upon a finding of spoliation, including submission of… Continue Reading

Sale of Seized Computer at Public Auction did not Waive Privilege where Steps were Taken to Prevent Disclosure

Posted in CASE SUMMARIES

Kyko Global Inc. v. Prithvi Info. Solutions Ltd., No. C13-1034 MJP, 2014 WL 2694236 (W.D. Wash. June 13, 2014) In this case, the court addressed the question of whether privilege was waived by the sale of a seized computer at public auction.  Balancing the relevant factors under Washington law, the court determined that the prior… Continue Reading

Think Fast—But Not Too Fast: Privilege Waived for Failure to Take Reasonable Steps to Prevent Disclosure

Posted in CASE SUMMARIES

First Tech. Capital, Inc. v. JPMorgan Chase N.A., No. 5:12-CV-289-KSF-REW, 2013 WL 7800409 (E.D. Ky. Dec. 10, 2013) In this case, the court found that privilege was waived where First Technology Capital, Inc. (“FTC”*), through counsel, failed to take reasonable steps to prevent the inadvertent disclosure of privileged materials.  The court’s determination that counsel’s efforts… Continue Reading

Court Rejects Unilateral Decision to Apply Predictive Coding to Keyword Search Hits, Orders Production of All Hits Pursuant to Clawback Order as Stipulated

Posted in CASE SUMMARIES

Progressive Cas. Ins. Co. v. Delaney, No. 2:11-cv-00678-LRH-PAL, 2014 WL 2112927 (D. Nev. May 20, 2014) In this case, the parties agreed upon an e-discovery protocol which was memorialized in a court order.  Shortly into its review, Plaintiff determined that the agreed-upon methodology (manual review of search term hits) would be too time consuming and… Continue Reading

“Ignoring the capabilities which ESI allows the parties to search for and produce factual information in a case of this nature is like pretending businesses still communicate by smoke signals.”

Posted in CASE SUMMARIES

In re Domestic Drywall Antitrust Litig., —F. Supp. 2d—, 2014 WL 1909260 (E.D. Pa. May 12, 2014) The issue presented is whether Plaintiffs must provide facts supporting Plaintiffs’ allegations—a frequent issue in antitrust litigation. The Court concludes, because of Plaintiffs’ counsel’s felicitous access to electronically stored information, that Plaintiffs must provide a pretrial statement setting… Continue Reading

Court Orders Forensic Examination for Inadequate Preservation & Collection, Confirms “Basic Rule” that Custodians must be Consulted for Input on Search Terms

Posted in CASE SUMMARIES

Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2014 WL 800468 (S.D. Fla. Feb. 28, 2014); No. 12-24356-CIV, 2014 WL 1047748 (S.D. Fla. Mar. 18, 2014) In this pair of opinions, the court addressed the obligations of client and counsel with regard to the preservation and collection of electronically stored information and the obligation of counsel… Continue Reading

Despite Alleged Budget Constraints, Government Ordered to Continue to Pay for Database to Avoid Prejudice to Criminal Defendants

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United States v. Shabudin, No. 11-cr-00664-JSW-1 (NJV), 2014 WL 1379717 (N.D. Cal. Apr. 8, 2014) In this criminal case, the Government was ordered to continue to maintain a Relativity Database (the “Database”) utilized by the parties to review documents produced by the Government and to continue to provide Defendants with the access and support that… Continue Reading

Starting Discovery with a Rule 30(b)(6) Deposition into “Manner and Methods” Used to Store ESI “Puts the Cart before the Horse”

Posted in CASE SUMMARIES

Miller v. York Risk Servs. Grp., No. 2:13-cv-1419 JWS, 2014 WL 1456349 (D. Ariz. Apr. 15, 2014) In this case, Plaintiffs determined that they would “need to discover electronically stored information” and sought first to compel the defendant to “participate in a Rule 30(b)(6) deposition regarding the manner and methods used by  Defendant to store… Continue Reading

Rule 34(b)(2)(E)(i) “Documents” Do Not Include ESI, Requirement to Produce in the Usual Course of Business or to Label to Correspond to Categories in the Request Does Not Apply

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Anderson Living Trust v. WPX Energy Prod., LLC, —F.R.D.—, 2014 WL 930869 (D.N.M. Mar. 6, 2014) In this case, the court analyzed the question of whether “a party must, under rule 34(b)(2)(E)(i) of the Federal Rules of Civil Procedure, arrange and label electronically stored information (‘ESI’) to correspond to the categories in the request, or… Continue Reading

Sanctions Imposed for Manipulation of Metadata to Conceal Use of Unproduced Computer

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T&E Investment Group, LLC v. Faulkner, Nos. 11-CV-0724-P, 3:11-CV-1558-P, 2014 WL 550596 (N.D. Tex. Feb. 12, 2014) In this case, the District Court adopted the recommendation of the Magistrate Judge and ordered an adverse inference and monetary sanctions for Defendant’s manipulation of metadata using a bulk file changer in an attempt to conceal his use… Continue Reading

Motion for Sanctions Denied Absent Evidence of Timing of Destruction to Establish Bad Faith

Posted in CASE SUMMARIES

Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, No. 10-cv-1122, 2014 WL 201534 (C.D. Ill. Jan. 17, 2014) Plaintiff argued that spoliation sanctions were warranted for Defendants’ destruction of relevant audio recordings of closed-session school board meetings in violation of the Illinois Open Meetings Act (“OMA”), the school board’s own document retention policies, and… Continue Reading

Text Messaging/Phone Records Establish Anticipation of Litigation; Spoliation Sanctions for Selective Preservation of Messages

Posted in CASE SUMMARIES

Calderon v. Corporacion Puertorrique a de Salud, —F. Supp. 2d—, 2014 WL 171599 (D.P.R. Jan. 16, 2014) In this case, Defendants sought to exclude all messages between Plaintiff and a particular email address/unknown person (the alleged harasser) and also asked that the case be dismissed with prejudice because of Plaintiff’s (apparently selective) failure to preserve more… Continue Reading

No Adverse Inference for Damage to Only Copy of Disk Absent Evidence of Materiality; Monetary Sanctions Imposed

Posted in CASE SUMMARIES

Cognex Corp. v. Microscan Sys., Inc., —F. Supp. 2d.—, 2013 WL 6906221 (S.D.N.Y. Dec. 31, 2013) In this case, Defendants sought sanctions for the spoliation of an optical disk which was damaged in shipping between Plaintiffs and their expert and which was therefore “unreadable.”  Finding that an adverse inference was unwarranted absent a showing that… Continue Reading

Stored Communications Act Applies to Previously Opened Web-based Emails

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Cheng v. Romo, No. 11-10007-DJC, 2013 WL 6814691 (D. Mass. Dec. 20, 2013) In this case, the court addressed the question of whether previously opened web-based emails were in “electronic storage” as defined by the Stored Communications Act (SCA) and determined that they were.  Plaintiff sued Defendant for accessing his web-based emails without authorization in… Continue Reading

Adverse Inference and Monetary Sanctions Warranted for Failures to Issue Litigation Hold, Monitor Preservation

Posted in CASE SUMMARIES

Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, No. 10-0541-GPC(WVG), 2013 WL 6159177 (S.D. Cal. Nov. 25, 2013) In this case, the court recommended that an adverse inference instruction be imposed and ordered monetary sanctions where Defendants “did not take adequate steps to avoid spoliation of evidence after it [sic] should have reasonably anticipated… Continue Reading

Sanctions Imposed for Inadequate Implementation of Litigation Hold

Posted in CASE SUMMARIES

In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2013 WL 6486921 (S.D. Ill. Dec. 9, 2013) In this case, the court addressed the adequacy of Defendants’ preservation efforts, including the implementation of their litigation hold(s) and determined that sanctions were warranted for Defendants’ violation of the court’s case management orders in bad… Continue Reading

Avoid “Discovery About Discovery” with Cooperation

Posted in CASE SUMMARIES

Ruiz-Bueno, III v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013) In this case, Plaintiffs moved to compel answers to their questions about Defendants’ efforts to respond to Plaintiffs’ discovery requests, including what procedures were undertaken to search for responsive electronically stored information.  Defendants objected, arguing that such information was not within… Continue Reading

Criminal Defendant Entitled to Production of Metadata Related to Police Report

Posted in CASE SUMMARIES

United States v. Tutt, No. 13-cr-20396, 2013 WL 5707791 (E.D. Mich. Oct. 21, 2013) In this case, the court granted in part Defendant’s Motion for Issuance of a Subpoena Duces Tecum seeking production of the arresting officers’ personnel files and disciplinary records as well as the metadata associated with an arresting officer’s police report.  Defendant… Continue Reading

Court Orders Imaging to Ensure Preservation of Self-Proclaimed Hacker’s ESI

Posted in CASE SUMMARIES

Battelle Energy Alliance, LLC v. Southfork Sec., Inc.

Plaintiff sought an ex parte temporary restraining order requiring Defendants to disable their website and remove information related to allegedly infringing software and also sought to create a forensic image of one defendant’s hard drive(s) to ensure preservation. The court granted Plaintiff’s application, relying in part on Defendants’ self-identification as hackers. Upon learning the at-issue source code had already been released, however, the court denied Plaintiff’s motion for a preliminary injunction and partially dissolved the TRO, but continued to retain images of the hard drives.

No Sanctions for Spoliation of Emails in Former Officers’ Personal Accounts Absent Evidence of Bad Faith or Prejudice

Posted in CASE SUMMARIES

Puerto Rico Tel. Co., Inc. v. San Juan Cable, LLC, No. 11-2135 (GAG/BJM), 2013 WL 5533711 (D.P.R. Oct. 7, 2013) Plaintiff alleged that the defendant failed to preserve relevant emails from the personal accounts of three former officers (the CEO, General Manager, and Senior Vice President) and sought an adverse inference instruction.  While the court agreed that… Continue Reading