Archive: 2011

1
Court Grants Cross Motions for Spoliation Sanctions, Imposes Adverse Inference Against Both Parties
2
Weighing the Burden, Court Excuses Plaintiff from Reviewing Millions of Pages from Unallocated Space
3
Court Finds Costs Related to Database “Used as Means of Document Production” are Taxable but Reverses Award in Light of Cost Sharing Agreement
4
District of Delaware Adopts Revised Default Standards for Discovery
5
Sanctions Ordered for Failure to Adequately “Preserve, Search for, and Collect Potentially Relevant Information”
6
Software Necessary to View Files Subject to Production under NY Freedom of Information Law
7
Southern District of New York Implements Pilot Program for Complex Cases, Requires Joint Electronic Discovery Submission for Cases Involving ESI
8
Prosecution Not Required to Re-Produce Voluminous ESI in Categorized Batches
9
Client & Counsel Sanctioned for Spoliation where Plaintiff was Instructed to “Clean Up” His Facebook Page
10
California Federal Court Grants Motion to Adopt Version of Model Order on E-Discovery in Patent Cases Promulgated by Federal Circuit

Court Grants Cross Motions for Spoliation Sanctions, Imposes Adverse Inference Against Both Parties

Patel v. Havana Bar, Restaurant & Catering, No. 10-1383, 2011 WL 6029983 (E.D. Pa. Dec. 5, 2011)

In this opinion addressing the parties’ cross motions for sanctions, the court ordered an adverse inference for defendants’ failure to preserve relevant video surveillance footage and an adverse inference for plaintiff’s failure to preserve relevant witness statements.  For plaintiff’s other discovery violations, including delayed and piecemeal production of witness statements and failure to timely produce a full copy of the relevant police report, as well as for the spoliation of witness statements, the court ordered re-deposition of several witnesses at plaintiff’s expense.  The court also awarded defendants’ attorneys fees and costs “for the time and effort they expended in attempting to obtain discovery that they were entitled to receive.”

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Weighing the Burden, Court Excuses Plaintiff from Reviewing Millions of Pages from Unallocated Space

I-Med Pharma, Inc. v. Biomatrix, Inc., No. 03-3677 (DRD), 2011 WL 6140658 (D.N.J. Dec. 9, 2011)

“This case highlights the dangers of carelessness and inattention in e-discovery.”  In this case, the court affirmed the order of the Magistrate Judge which excused plaintiff from the obligation of reviewing and producing millions of pages of documents recovered from unallocated space files in light of the extreme burden and cost of such an undertaking.

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Court Finds Costs Related to Database “Used as Means of Document Production” are Taxable but Reverses Award in Light of Cost Sharing Agreement

In re Ricoh Co., Ltd. Patent Litig., No. 2011-1199, 2011 WL 5928689 (Fed. Cir. Nov. 23, 2011)

In this case, Ricoh sought review of the district court’s award of costs to Synopsys related to the parties’ use of Stratify (“a third-party electronic database service”) for the production of email.  The appellate court concluded that the district court did not err in determining that costs related to the database could be recovered pursuant to 28 U.S.C. § 1920(4), but reversed the lower court’s award in light of the parties’ agreement to split the costs.

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District of Delaware Adopts Revised Default Standards for Discovery

Effective yesterday, the District of Delaware has adopted revised default standards for discovery, including electronic discovery.  The standards cover a broad range of e-discovery issues from cooperation and proportionality to preservation, privilege, and format of production, among others.  Clearly intended to provide more than just general guidance to parties before the court, the default standards are quite specific (e.g, identification of categories of ESI not presumptively subject to preservation and mandated formats for production) and parties are therefore advised to carefully consult the guidelines when practicing in the District of Delaware.

A copy of the guidelines is available for download here.

Sanctions Ordered for Failure to Adequately “Preserve, Search for, and Collect Potentially Relevant Information”

Naaco Materials Handling Group, Inc. v. Lilly Co., 278 F.R.D. 395 (W.D. Tenn. 2011)

In this case, the court found that defendant “failed to take reasonable steps to preserve, search for, and collect potentially relevant information . . . after its duty to preserve evidence was triggered by being served with the complaint” which may have resulted in the destruction of relevant evidence.  Further, defendant failed to present an adequately prepared and knowledgeable 30(b)(6) deponent.  Accordingly, sanctions were imposed, including, among other things, additional discovery, additional forensic imaging at defendant’s expense, and monetary sanctions.

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Software Necessary to View Files Subject to Production under NY Freedom of Information Law

TJS of New York, Inc. v. New York State Dep’t of Taxation and Fin., 932 N.Y.S.2d 243 (N.Y. App. Div. Nov. 3, 2011)

In this case, the court determined that the software program necessary to view certain files produced to the petitioner subject to New York’s Freedom of Information Law was a “record” for purposes of the law and was thus subject to production itself.

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Southern District of New York Implements Pilot Program for Complex Cases, Requires Joint Electronic Discovery Submission for Cases Involving ESI

The Southern District of New York has implemented a new Pilot Program for Complex Cases which became effective on November 1, 2011.  The program was implemented in “response to the federal bar’s concerns about the high costs of litigating complex civil cases,” and is “designed to improve judicial case management of these disputes and reduce costs and delay.”  More specifically, “the rules are intended to shorten the timeline for certain actions, reduce motion practice, and flag issues requiring judicial intervention at an earlier stage in the litigation process.”  Fourteen types of civil lawsuits are designated as “complex cases,” including “stockholder’s suits, patent and trademark claims, product liability disputes, multi-district litigation, and class actions.”  District Court judges may also “remove a case from the pilot, or they can designate a case as complex” if it does not fall within the other, enumerated categories.

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Prosecution Not Required to Re-Produce Voluminous ESI in Categorized Batches

United States v. Rubin/Chambers, Dunhill Ins. Servs., No. 09 Cr. 1058, 2011 WL 5448066 (S.D.N.Y. Nov. 4, 2011)

In this case, defendants were charged with crimes “arising out of an alleged conspiracy . . . to illegally rig bids, fix prices, and manipulate the market for investment instruments known as municipal derivatives.”  Following the prosecution’s production of ESI, defendants sought to compel re-production in categorized batches relating to transactions with certain characteristics.  Defendants’ motion was denied.

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Client & Counsel Sanctioned for Spoliation where Plaintiff was Instructed to “Clean Up” His Facebook Page

Lester v. Allied Concrete Co., Nos. CL.08-150, CL09-223 (Va. Cir. Ct. Sept. 1, 2011); Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011)

In this case, significant monetary sanctions were ordered against the plaintiff and his counsel for egregious discovery violations, including intentional deletion of pictures on Plaintiff’s Facebook page per the instructions of Counsel and subsequent efforts to cover those instructions up, among others.

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California Federal Court Grants Motion to Adopt Version of Model Order on E-Discovery in Patent Cases Promulgated by Federal Circuit

DCG Sys., Inc. v. Checkpoint Techs., LLC, No. C-11-03792 PSG, 2011 WL 5244356 (N.D. Cal. Nov. 2, 2011)

In this patent case, Defendant sought an order adopting a modified version of the Model Order on E-Discovery in Patent Cases (“Model Order”) recently promulgated by a subcommittee of the Advisory Council of the Federal Circuit (available here).  Significantly, the Model Order limits the discovery of email by placing limitations on the allowable number of custodians and search terms.  According to the court, such limitations “are designed to address the imbalance of benefit and burden resulting from email production in most cases.”  The order proposed by the Defendant similarly limited the discovery of email.

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