The judges of the United States District Court for the Eastern District of Michigan have announced the approval, “on a pilot period basis,” of a Model Order Relating to the Discovery of Electronically Stored Information and a Rule 26(f) meet and confer checklist. “It is within the judicial officer’s discretion whether these materials may be… Continue Reading
NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515, 2013 WL 3974535 (E.D. La. Aug. 2, 2013) In this trademark infringement case, Defendant sought to compel Plaintiff and its principal (a third-party defendant) to produce “passwords and user names to all online web sites related to the issues in this litigation” and to compel… Continue Reading
Herrmann v. Rain Link, Inc., No. 11-1123-RDR, 2013 WL 4028759 (D. Kan. Aug. 7, 2013)
Plaintiff sought sanctions for Defendants’ allegedly intentional spoliation of evidence and argued that prejudice could be presumed. The Magistrate Judge declined to do so and also found that Defendants’ spoliation was merely negligent. Thus, absent a showing of actual prejudice, the Magistrate Judge recommended that Plaintiff’s motion be denied.
Northstar Marine, Inc. v. Huffman, CA 13-00037-WS-C (S.D. Ala. Aug. 27, 2013) Despite Plaintiff’s assertion that it was “having difficulty locating an inexpensive provider of electronic search technology to assist with discovery” the court granted Defendants’ motion to enforce Plaintiff’s compliance with the parties’ document production agreement which, among other things, required each party to… Continue Reading
Apple Inc. v. Samsung Elecs. Co. Ltd., No. 12-CV-0630-LHK (PSG), 2013 WL 4426512 (N.D. Cal. Aug. 14, 2013)
Relying on the “all-to-often [sic] ignored discovery principle” of proportionality the court declined to compel Plaintiff “to go to great lengths” to produce information that the defendants could “do without.”
Logtale, Ltd. v. IKOR, Inc., No. C-11-05452 CW (DMR), 2013 WL 3967750 (N.D. Cal. July 31, 2013) Plaintiff sought to compel Defendants’ production of all responsive documents and also sought sanctions, including attorneys’ fees and an order requiring Defendants “to retain an e-discovery vendor to conduct a thorough and adequate search for responsive electronic documents.” … Continue Reading
Sekisui Am. Corp. v. Hart, —F. Supp. 2d—, 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013)
Previously in this case, the Magistrate Judge declined to impose spoliation sanctions for Plaintiff’s deletion of emails and other ESI belonging to two important custodians absent a showing that the defendants were prejudiced by the destruction. Upon Defendants’ objections, the district court reversed the denial of sanctions and imposed an adverse inference and monetary sanctions. In doing so, the court reasoned that prejudice was presumed because the evidence was destroyed intentionally and explained that no showing of malice was required.
Barrette Outdoor Living, Inc. v. Michigan Resin Representatives, No. 11-13335, 2013 WL 3983230 (E.D. Mich. Aug. 1, 2013) For Defendant’s bad faith failure to preserve his cellular phone and his deletion of 270,000 files from his personal laptop using scrubbing software, the district court adopted the recommendations of the Magistrate Judge and ordered monetary sanctions… Continue Reading
DCP Midstream LP v. Anadarko Petroleum Corp., —P.3d—, 2013 WL 3225846 (Colo. June 24, 2013) In this breach of contract case, the Colorado Supreme Court addressed the court’s role in managing the scope of discovery under Colorado Rule of Civil Procedure 26(b)(1)—which was amended in 2002 “to conform to its federal counterpart.” The court concluded… Continue Reading
Lazette v. Kulmatycki, —F. Supp. 2d—, 2013 WL 2455937 (N.D. Ohio June 5, 2013) When Plaintiff’s employment ended and she returned her company-issued Blackberry, she believed that she had deleted her personal email account. She was mistaken. Thereafter, her former supervisor, without her knowledge or authorization, proceeded to access and read her personal emails—48,000 of them—during… Continue Reading
PTSI, Inc. v. Haley,—A.3d—, 2013 WL 2285109 (Pa. Super. Ct. May 24, 2013)
Plaintiff sued its former employees after they opened a competing sports training facility. In the course of litigation, Plaintiff sought sanctions for Defendants’ alleged spoliation of ESI, including text messages. The trial court found that “the level of importance and complexity of the issues did not weigh in favor of imposing sanctions and that the deleted material was not relevant or important to its decision” and dismissed the claim for sanctions. On appeal, the appellate court found no abuse of discretion and affirmed the order.
Sekisui Am. Corp. v. Hart, No. 12 Civ. 3479(SAS)(FM), 2013 WL 2951924 (S.D.N.Y. June 10, 2013)
In this case, the court considered Plaintiff’s “at least” negligent deletion of “the entire active email folder of an important witness–perhaps the key witness–at a time when [it] obviously knew that it might commence a lawsuit,” but declined to impose the requested adverse inference–or any sanction–absent a sufficient showing that “relevant information potentially helpful to [the defendants] [wa]s no longer available.”
Mali v. Fed. Ins. Co., 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.
Giacchetto v. Patchogue-Medford Union Free School Dist., 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.”
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… Continue Reading
Dornoch Holdings Int’l, LLC v. Conagra Foods Lamb Weston, Inc., 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.
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… Continue Reading
Pillay v. Millard Refrigerated Servs., Inc., No. 09 C 5725, 2013 WL 2251727 (N.D. Ill. May 22, 2013)
In this case, the court granted Plaintiff’s motion for an adverse inference instruction where Defendant failed to prevent the automatic deletion of relevant data despite notice of impending litigation and receipt of a specific preservation notice, sent directly to Defendant’s general counsel.
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… Continue Reading
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.” 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.”
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… Continue Reading
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… Continue Reading
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.”
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… Continue Reading