Archive: December 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
M-I LLC v. Stelly, No. H-09-1552, 2015 WL 12896025 (S.D. Tex. Nov. 21, 2011)
8
Tibble v. Edison Int?l, No. CV 07-5359, 2011 WL 3759927 (C.D. Cal. Aug. 22, 2011)
9
Pac. Coast Steel v. Leany, No. 2:09-cv-2190-KJD-PAL, 2011 WL 4704217 (D. Nev. Oct. 4, 2011)
10
Cannata v. Wyndham Worldwide Corp., No. 2:1-cv-00068-PMP-VCF, 2011 WL 5598306 (D. Nev. Nov. 17, 2011)

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.”

Read More

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.

Read More

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.

Read More

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.

Read More

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.

Read More

M-I LLC v. Stelly, No. H-09-1552, 2015 WL 12896025 (S.D. Tex. Nov. 21, 2011)

Key Insight: Court ordered forensic inspection of Defendant?s computers where Plaintiff presented evidence that an individual defendant had transferred confidential information to USB devices and Plaintiff suspected it had then been transferred to Defendant?s computer systems and where Plaintiff produced evidence of Defendant?s practice of deleting documents; court ordered inspection undertaken by an independent expert

Electronic Data Involved: Contents of computers

Tibble v. Edison Int?l, No. CV 07-5359, 2011 WL 3759927 (C.D. Cal. Aug. 22, 2011)

Key Insight: Court addressed defendants? request for ?costs for utilizing the expertise of computer technicians in unearthing the vast amount of computerized data sought by Plaintiffs in discovery? and reasoned that ?[c]ourts have found that costs such as those sought by Defendants are recoverable under ? 1920(4)? and that defendants costs were not incurred for mere convenience but rather were ?necessarily incurred in responding to Plaintiffs? discovery requests? and concluded the costs were reasonable; the court found the request to be moot, however, where defendants sought costs ?only to the extent Plaintiffs receive attorneys fees? and no such fees were awarded

Electronic Data Involved: Taxable costs

Pac. Coast Steel v. Leany, No. 2:09-cv-2190-KJD-PAL, 2011 WL 4704217 (D. Nev. Oct. 4, 2011)

Key Insight: [This amended order corrects an omission to the original order, Docket # 335] Where plaintiffs ?simply overlooked? and thus inadvertently produced 3 privileged documents along with 2.3 million other pages, despite conducting ?multiple? privilege reviews and where plaintiff immediately objected to the use of such documents upon their presentation at deposition and thereafter sought their return before the court, the court found that privilege was not waived

Electronic Data Involved: ESI

Cannata v. Wyndham Worldwide Corp., No. 2:1-cv-00068-PMP-VCF, 2011 WL 5598306 (D. Nev. Nov. 17, 2011)

Key Insight: Reasoning that the litigation holds were not discoverable but that the details surrounding them were, court ordered defendant to produce ?information surrounding the litigation hold? including when defendants learned of claims, when and to whom litigation hold instructions were sent, what categories of information were identified for preservation , etc.

Electronic Data Involved: Litigation holds

Copyright © 2021, K&L Gates LLP. All Rights Reserved.