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Electronic Discovery Law Blog

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

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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Court Concludes that “at least in the Seventh Circuit,” the Duty to Preserve is Triggered “when a litigant knew or should have known that litigation was imminent” as Opposed to “Reasonably Foreseeable”

Posted in CASE SUMMARIES

In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2013 WL 5377164 (S.D. Ill. Sept. 25, 2013)

In this case, the court found that the duty to preserve arose after the at-issue information was destroyed in accordance with Defendant’s document retention policies and that an adverse inference was not warranted.  Considering the proper standard to employ when assessing when the duty to preserve is triggered, the court concluded that “the duty to preserve is triggered only when a litigant knew or should have known that litigation was imminent (at least in the Seventh Circuit).”

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Da Silva Moore: Plaintiffs’ Petition for Writ of Certiorari on Question of Recusal Denied

Posted in NEWS & UPDATES

On October 7, 2013, the Supreme Court of the United States denied Plaintiffs’ Petition for Writ of Certiorari arising from Magistrate Judge Andrew Peck’s refusal to recuse himself in this case.  As was previously reported on this blog, Plaintiffs sought an answer to the question: “Should a court of appeals review a judge’s denial of a motion to recuse de novo or for an abuse of discretion?”  Readers may recall that the plaintiffs in this case sought the recusal of Magistrate Judge Peck following his approval of Defendant’s predictive coding protocol.  That motion was denied by Magistrate Judge Peck.  Plaintiffs then took the issue before the District Court, which likewise declined to compel recusal, and then to the Second Circuit, which denied Plaintiffs’ petition for a writ of mandamus.  Plaintiffs then petitioned the United States Supreme Court for a Writ of Certiorari, which, as discussed, was denied.

E.D. Michigan Approves Model Order Relating to the Discovery of Electronically Stored Information & a Meet and Confer Checklist for Pilot Use

Posted in CASE SUMMARIES, NEWS & UPDATES

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 used.”

The Model Order sets forth a series of principles which address a myriad of issues including cooperation, proportionality, the duty to meet and confer, preservation, the identification of electronically stored information (ESI) and format of production, among others.  The checklist sets forth a series of potential topics to be discussed at the parties’ meet and confer.

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