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Category Archives: CASE SUMMARIES

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Court Declines to Preclude “Eyes On” Review for Privilege

Posted in CASE SUMMARIES

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”

Posted in CASE SUMMARIES

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

Court Allows Plaintiff to “switch horses in midstream” and Use Predictive Coding to Review Documents Initially Screened with Search Terms

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Bridgestone Americas, Inc. v. Int. Bus. Machs. Corp., No. 3:13-1196 (M.D. Tenn. July 22, 2014) In this case, the court approved plaintiff’s request to use predictive coding in reviewing over two million documents, despite defendant’s objections that the request was an “unwarranted change in the original case management order” and that it would be unfair… Continue Reading

“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

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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

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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

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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

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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

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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

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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

Posted in CASE SUMMARIES

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

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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

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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