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Electronic Discovery Law Blog

Legal issues, news, and best practices relating to the discovery of electronically stored information.

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 the disk contained information that would be “material to [Defendants’] claims or defenses,” the court imposed monetary sanctions, including ordering payment of Defendants’ costs and attorneys’ fees associated with the spoliation motion and a $25,000 fine payable to the Clerk of the Court.

On multiple occasions, Defendants requested that Plaintiffs provide them with an optical disk (“CD”) containing particular relevant software and Plaintiffs promised that they would. “[W]ell after” Defendants’ specific requests for production, however, the original CD was shipped to Plaintiffs’ technical expert and was allegedly damaged by the shipping company during its return.  There was no copy.  Defendants sought spoliation sanctions in the form of an adverse inference. Continue Reading

Stored Communications Act Applies to Previously Opened Web-based Emails

Posted in CASE SUMMARIES

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 violation of the Stored Communications Act.  Although Defendant admitted accessing the emails, she argued that because they had previously been opened by Plaintiff, they were “not in ‘electronic storage’” as described by the statute. 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 this lawsuit and did not issue a litigation hold nor implement nor monitor an adequate document preservation policy.”

In the fall of 2008, Defendants informed Plaintiffs that they intended to “make their own clone product” to compete with Plaintiffs’ products, for which Defendants were distributors.  In August 2008, Plaintiffs informed Defendants that they considered Defendants’ planned product to be an infringement of their own.  In October 2008, Plaintiffs sent a letter “stating that they would file a lawsuit for patent infringement against Defendants should Defendants continue their plan to commercialize their product.”  In March 2010, Plaintiffs filed the underlying action in this case. In August 2012, Plaintiffs filed a motion for sanctions alleging that Defendants had failed to preserve relevant evidence. 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 faith.  Accordingly, the court ordered production of relevant documents or an explanation regarding why they could not be produced, payment of the Plaintiffs’ Steering Committee’s (PSC) costs and fees “in pursuing the issue of the defendants’ violations” and that the defendants produce their employees for depositions in the United States.  The court also imposed a fine of $931,500 jointly and severally against both defendants ($500 per case). Continue Reading

Court Declines to Compel Identification of Seed Set, Encourages Cooperation

Posted in CASE SUMMARIES

In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391, 2013 WL 6405156 (N.D. Ind. Aug, 21, 2013)

Previously in this case, the court ruled that Biomet need not start again on its document production for which it utilized both keyword searching and predictive coding.  (See summary here.)  In this opinion, the court addressed the Steering Committee’s request that the discoverable documents used in Biomet’s seed set be identified and declined to compel such identification.  Despite this, the court noted Biomet’s “unexplained lack of cooperation” and urged Biomet to “re-think its refusal.”

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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 the scope of discovery.  Following its discussion of whether “discovery about discovery [is] ever permissible” (it is), the court turned to the circumstances of this case and ordered Defendants to respond.  In its analysis, the court spent significant time extolling the virtues of cooperation.

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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 sought to examine the metadata to confirm the alleged time that the report was written in light of the officer’s claim that he overheard the defendant making incriminating statements to the suspect in the adjoining cell while the officer “simultaneously” drafted his report and memorialized those alleged comments.  Defendant denied ever making the statements.

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

Posted in CASE SUMMARIES

Battelle Energy Alliance, LLC v. Southfork Sec., Inc., No. 4:13-cv-00442-BLW, 2013 WL 5637747 (D. Idaho Oct. 15, 2013); Battelle Energy Alliance, LLC v. Southfork Sec., Inc., — F. Supp. 2d —, 2013 WL 5818559 (D. Idaho Oct. 29, 2013)

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.

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Martha Dawson Named One of Top 250 Women in Intellectual Property

Posted in NEWS & UPDATES

Managing Intellectual Property – IP Stars has recognized K&L Gates attorneys Martha Dawson, Susan Hollander, Susan Jackson, Pallavi Wahi, Christine Vito, and Rachal Winger in its inaugural edition of “Top 250 Women in IP 2013.”

The nominees were chosen based upon the rankings of the 2013 edition of IP Stars, researched between June 2012 and April 2013.  That research included thousands of interviews and surveys by intellectual property partners and law firms across the United States.

Click here to see a full copy of the list.

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 Defendant’s failure to locate certain emails was a breach of the duty to preserve and constituted spoliation, no sanctions were imposed absent evidence of bad faith or a demonstration of prejudice.

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