Archive: 2010

1
Court Orders Retention of Third Party Vendor to Assist with Document Review and Production, Appoints Special Master to Resolve Future Disputes
2
Citing Rule 37(e), Court Denies Spoliation Sanctions Despite the Existence of a Duty to Preserve
3
Court Compels Production of ESI for a Period of 18 Years, Shifts Majority of Costs to Requesting Party
4
Culpability for Allowing Evidence to Become Inaccessible a Factor for Consideration when Determining Good Cause to Compel Production
5
Jury Instruction Allowing Inference that Destroyed Evidence Was Unfavorable and Payment of Attorneys’ Fees and Costs Ordered as Sanction for Failure to Preserve
6
Upcoming Events – July
7
Government Employer’s Search of Employee’s Text Messages on Employer-Issued Pager Did Not Violate Fourth Amendment
8
Pursuant to Stored Communications Act, Court Quashes Subpoena for Private Messages, Remands for Further Consideration of Facebook Wall and MySpace Comments
9
Reckless and Grossly Negligent Failure to Preserve Results in Sanctions for Defendant
10
Court Resolves Dispute Regarding Scope of Discovery, Addresses Search Terms, Custodians, and Backup Tapes

Court Orders Retention of Third Party Vendor to Assist with Document Review and Production, Appoints Special Master to Resolve Future Disputes

Multiven, Inc. v. Cisco Sys., Inc., 2010 WL 2813618 (N.D. Cal. July 9, 2010)

Observing that plaintiff and counterdefendants had insisted upon “a review process that guarantees that they will not finish this extensive project in any reasonable amount of time”, namely reviewing large volumes of information without first narrowing the material using search terms, the court acknowledged the need to expedite production and directed plaintiff and counterdedendants to retain a third party vendor to assist in their discovery efforts.  Accepting defendant’s offer, the court further ordered that Cisco would bear half the cost.

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Citing Rule 37(e), Court Denies Spoliation Sanctions Despite the Existence of a Duty to Preserve

Olson v. Sax, 2010 WL 2639853 (E.D. Wis. June 25, 2010)

Citing a lack of evidence that defendants “engaged in the ‘bad faith’ destruction of evidence for the purpose of hiding adverse evidence” and Fed. R. Civ. P. 37(e), the court denied plaintiff’s motion for sanctions for defendants’ destruction of relevant videotape, despite the existence of a duty to preserve.

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Court Compels Production of ESI for a Period of 18 Years, Shifts Majority of Costs to Requesting Party

Takeda Pharm. Co., Ltd. v. Teva Pharm. USA, Inc., 2010 WL 2640492 (D. Del. June 21, 2010)

Defendants sought production of electronically stored information for a period of 18 years – a significant departure from the default period of five years previously imposed.  Upon plaintiffs’ showing that retrieval of the additional data by a vendor would cost approximately $1 million to $1.5 million (not including the cost of review), the court found the information was “not reasonably accessible”.  However, the court also found that defendants had shown good cause to compel the requested production.  Considering the relevance of the data and its possible unavailability from an alternative source as well as plaintiffs’ costs from producing the ESI, the court reasoned that “in relation to the importance of the interest at stake … including the likely very substantial financial stakes, [the] costs may be justified.”  Accordingly, the court granted defendants’ motion to compel and held that if plaintiffs employed an outside vendor to assist in fulfilling their obligation, defendants would bear 80 percent of the reasonable vendor costs incurred.

Culpability for Allowing Evidence to Become Inaccessible a Factor for Consideration when Determining Good Cause to Compel Production

Major Tours, Inc. v. Colorel, 2010 WL 2557250 (D.N.J. June 22, 2010)

Appealing an order from the magistrate judge, plaintiffs argued that defendants should bear the costs of producing inaccessible data where it was defendants’ failure to preserve that resulted in the data’s inaccessibility.  The court declined to support such a rule, finding that defendants’ culpability was merely a factor for consideration when deciding whether to compel production for good cause.  The court also found that the magistrate judge had adequately considered defendants’ culpability when crafting the underlying order and did not abuse his discretion.  Accordingly, the order was affirmed.

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Jury Instruction Allowing Inference that Destroyed Evidence Was Unfavorable and Payment of Attorneys’ Fees and Costs Ordered as Sanction for Failure to Preserve

Medcorp, Inc. v. Pinpoint Tech., Inc., 2010 WL 2500301 (D. Colo. June 15, 2010)

Finding “willful” spoliation of 43 hard drives “in the sense that Plaintiff was aware of its responsibilities to preserve relevant evidence and failed to take necessary steps to do so”, a special master ordered a jury instruction which allowed the jury to infer that the destroyed evidence was unfavorable to plaintiff and for the parties to split the cost of defendants’ litigation of the spoliation issue.  Upon a motion to modify the order, the magistrate judge affirmed the imposition of the jury instruction, but found plaintiff should pay all of defendants’ reasonable expenses and ordered payment of $89,365.88.

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Upcoming Events – July

Washington Defense Trial Lawyers Annual Meeting and Convention

July 22-25, 2010
Suncadia Resort, Washington

On Friday, July 23rd at 9:45 AM, join K&L Gates Partner Todd Nunn for his presentation entitled, “E-Volving Discovery:  Dealing with ESI in the Discovery Process”.

To learn more or to register, click here.

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Government Employer’s Search of Employee’s Text Messages on Employer-Issued Pager Did Not Violate Fourth Amendment

City of Ontario v. Quon, 130 S. Ct. 2619 (2010)

Yesterday, the U.S. Supreme Court issued its opinion in City of Ontario v. Quon, a case addressing whether a government employer’s search through an employee’s text messages, sent and received on a work-issued pager, violated the Fourth Amendment.  Reversing the Ninth Circuit, the Supreme Court held that the search was reasonable and that the employee’s Fourth Amendment rights were not violated.

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Pursuant to Stored Communications Act, Court Quashes Subpoena for Private Messages, Remands for Further Consideration of Facebook Wall and MySpace Comments

Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010)

Defendant subpoenaed several social networking sites seeking disclosure of plaintiff’s subscriber information and communications relevant to the underlying dispute.  Plaintiff sought to quash the subpoenas arguing that such disclosure would violate the Stored Communications Act (“SCA”).  The magistrate judge denied plaintiff’s motion to quash upon finding the SCA was inapplicable. Plaintiff moved for reconsideration of the order.

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Reckless and Grossly Negligent Failure to Preserve Results in Sanctions for Defendant

Jones v. Bremen High School Dist. 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010)

Despite receipt of plaintiff’s EEOC claim alleging employment discrimination, defendant failed to institute a litigation hold.  Instead, defendant identified three individuals likely to possess responsive information and asked them to identify and preserve relevant evidence.  Some of the individuals identified were substantially involved in the alleged discriminatory treatment of the plaintiff.  Despite this failure, defendant eventually produced most of the requested information, although some email was deemed likely to have been lost forever.  Finding defendant’s preservation efforts “reckless and grossly negligent”, the court ordered sanctions.

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Court Resolves Dispute Regarding Scope of Discovery, Addresses Search Terms, Custodians, and Backup Tapes

Helmert v. Butterball, LLC, 2010 WL 2179180 (E.D. Ark. May 27, 2010)

In this collective action brought under the Fair Labor Standards Act, plaintiffs and defendant reached significant impasse regarding the appropriate scope of discovery, including disagreement regarding search terms, the number and identity of custodians, the sources of data to be searched, and who should bear the costs.  Resolving each issue in turn, the court’s discussion focused in large part upon weighing the burden of plaintiffs’ requests against the potential to discover relevant information, including a discussion of the discoverability of backup tapes.  The court also declined to shift the costs of production.

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