December 1, 2012 – Page 4 – Electronic Discovery Law

Brigham Young Univ. v. Pfizer, Inc., No. 2:06-cv-890 TS, 2012 WL 1302288 (D. Utah Apr. 16, 2012)

Dec 01 2012

Key Insight: Denying plaintiffs? motion for sanctions the court distinguished the cases of Lee v. Max Int., LLC, 638 F.3d 1318 (10th Cir. 2011) and Phillip M. Adams & Assoc., LLC v. Dell, Inc., 621 F. Supp. 2d 1173 (D. Utah 2009), found the defendant had not acted in bad faith, and rejected plaintiffs assertions that the duty to preserve arose from obligations to maintain information pursuant to corporate policy or an obligation to the government; noting that most relevant documents were from the 1990?s, the court also acknowledged that even where a preservation obligation exists, the passage of time can result in the inadvertent destruction or misplacement of evidence and the fading of human memories

Electronic Data Involved: Unspecified in opinion

Eisai v. Sanofi-Aventis U.S., LLC, No. 08-4168 (MLC), 2012 WL 1299379 (D.N.J. Apr. 16, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motions to compel discovery from an additional 175 custodians and an additional 27 custodians (two separate requests) upon its determination that the requests were cumulative or duplicative and that the burden outweighed the potential benefit; of note was the significant expenditures of the defendants on already-produced discovery and the volumes produced as well as the estimated cost of the additional requested discovery, where the estimated burden of producing the additional 175 custodians was 140,00 hours of manpower and roughly $15 million dollars?an amount that exceeded the expected value of plaintiff?s claim

Electronic Data Involved: ESI from 200+ custodians

Edwards v. Ford Motor Corp., 2012 WL 553383 (S.D. Cal. Feb. 17, 2012)

Dec 01 2012

Key Insight: Court found defendant?s arguments failed to establish undue burden and reasoned that defendant could not escape its discovery obligations ?because it has chosen to store those documents in a way that makes it difficult for Defendant to search for them,? that defendant?s estimations were based on ?a wider scope of documents than what Plaintiff is seeking,? and that defendant failed to provide sufficient detail to evaluate its argument

Electronic Data Involved: Employer issue laptop and contents

State Nat?l Ins. Co. v. Cnty. of Camden, No. 08-5128 (NLH)(AMD), 2012 WL 960431 (D.N.J. Mar. 21, 2012)

Dec 01 2012

Key Insight: Award of attorney?s fees for investigation into possibility of spoliation where defendant failed to institute a litigation hold was proper, even where no spoliation was established, because the ?non-breaching party still has suffered damages in the context of attorneys? fees and costs? as a result of the need to perform the investigation

Electronic Data Involved: ESI

Annex Books, Inc. v. City if Indianapolis, No. 1:03-cv-SEB-TAB, 2012 WL 892170 (S.D. Ind. Mar. 14, 2012)

Dec 01 2012

Key Insight: Where plaintiff was unable to produce requested ?bookkeeping data? in a manner that was usable by defendants despite significant efforts to do so (including retaining two computer forensic services, spending over $9500 on 30 hour of work, and purchasing QuickBooks Pro in an attempt to export the relevant data), the court found that plaintiff had demonstrated that the data was not reasonably accessible but also found that defendant had demonstrated good cause for seeking the information and ordered defendant to bear the costs of additional efforts (noting that it was ?unreasonable? for defendant to insist on production in QuickBooks format when incompatibility had been established)

Electronic Data Involved: ESI

U.S. Bank Nat?l Assoc. v. Syncora Guarantee, Inc., 939 N.Y.S.2d 395 (N.Y. App. Div. Feb. 28, 2012)

Dec 01 2012

Key Insight: In this case, the court rejected defendant?s position that the requesting party should bear the costs of production and adopted the Zubulake standard which requires ?the producing party to bear the initial costs of searching for, retrieving and producing discovery, but permits the shifting of costs between parties? upon consideration of several factors.

Electronic Data Involved: ESI

Danny Lynn Elec. V. Veolia Es Solid Waste, No. 2:09CV192-MHT, 2012 WL 786843 (M.D. Ala. Mar. 9, 2012)

Dec 01 2012

Key Insight: Court denied motion for spoliation sanctions where it was unclear that any spoliation had even occurred in light of defendants? backup system, where the court concluded that defendants had not acted in bad faith (but had instead ?expended great effort to insure that plaintiffs receive information from both their live and archived email system ??), and where the degree of prejudice was minimal (assuming spoliation occurred) in light of the significant other discovery that was produced

Electronic Data Involved: Email

McGrath v. United States, 103 Fed. Cl. 658 (Fed. Cl. 2012)

Dec 01 2012

Key Insight: Court ordered adoption of parties? proposed order concerning the management of electronic discovery which contained ?some but not all? of the provision of the [Model] Order drafted by the Federal Circuit and indicated its additional consideration of the [Model] Order adopted by the E.D. Texas

Electronic Data Involved: ESI

Ohio Valley Environ. Coalition, Inc. v U.S. Army Corps of Eng?gs, No. 1:11MC35, 2012 WL 112325 (N.D. W. Va. Jan. 12, 2012)

Dec 01 2012

Key Insight: Where non-party represented that responding to subpoena would be burdensome in light of need to comb through vast amounts of ESI which had not been organized in anticipation of litigation, court determined such representations constituted ?blanket assertions? but failed to meet the high burden of showing, with particularity, the source and extent of the burden claimed and declined to quash the subpoena for that reason

Electronic Data Involved: Research materials from university professor

City of Alameda, CA v. Nuveen Mun. High Income Opportunity Fund, Nos. C 08-4575 SI; C 09-1437 SI, 2012 WL 17756 (N.D. Cal. Jan. 23, 2012)

Dec 01 2012

Key Insight: Court found costs related to ?OCR and metadata extraction? were not recoverable

Electronic Data Involved: ESI

Archive - December 1, 2012