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Electronic Discovery Law Blog

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

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


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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Court Declines to Compel Response to “Ultra-Broad” Request for Passwords and User Names or Allow “Exhaustive Forensic Examination” of Computers


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 Plaintiff and its principal to “submit their computers to an exhaustive forensic examination.”  Because the request for passwords and user names was “ultra-broad” and would allow Defendant to “roam freely through all manner of personal and financial data” and because Defendant “failed sufficiently to justify the broad forensic computer examination it request[ed],” the court denied the motion.

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Magistrate Judge Declines to Presume Prejudice, Recommends Denial of Motion for Sanctions


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.

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Plaintiff Ordered to Adhere to “Document Production Agreement” Despite Difficulty Finding an “Inexpensive” Technology Provider


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 “immediately arrange to use computer-assisted search technology” in furtherance of its electronic discovery obligations and to immediately produce its search results in native format.

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Citing Proportionality, Court Concludes it would be “Senseless” to Require Plaintiff to “Go to Great Lengths” to Produce Evidence Defendants are “Able to Do Without”


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.”

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Court Warns “Continuing Problems” with Document Production Will Result in Order to Retain an e-Discovery Vendor


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.”  Acknowledging that it shared Plaintiff’s concerns “about the inadequacy of Defendants’ search for responsive documents,” the court granted Plaintiff’s motion to compel and also granted the request for attorneys’ fees (although at a reduced rate).  The court declined to order the retention of an e-discovery vendor “at this time,” but warned that such an order would be entered if problems with Defendants’ document production continued.

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Willful or Grossly Negligent Destruction of ESI Allows Presumption of Prejudice


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.

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Proposed Amendments to Civil (and Bankruptcy) Rules Posted for Public Comment


The Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure is now published online for public comment.  The proposed amendments to the civil rules would affect rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84 and the Appendix of Forms.  Many of the proposed amendments are quite significant, particularly with regard to discovery, and our readers are therefore encouraged to review them carefully and share their thoughts with the Advisory Committee.

All written comments are due by February 15, 2014, and may be submitted electronically or by mail.  Members of the public may also present testimony on the proposed changes at any of three public hearings, scheduled for November 7th in Washington, D.C.; January 9th in Phoenix, AZ; and February 7th in Dallas, TX. 

To learn more about all of the proposed amendments and for instructions regarding how to submit your comments, click here.  For those interested only in the proposed amendments to the Rules of Civil Procedure, click here, to be taken directly to a discussion of those proposals.

Timing of Defendant’s Actions Weighs Heavily in Analysis of Spoliation Sanctions


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 equaling $35,000 and an irrefutable adverse inference that the phone and deleted files would have contained information unfavorable to the defendant, including that Defendant was involved with the company allegedly created for the “pass-through” scheme on which Plaintiff’s claims were based.

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