December 1, 2014 – Page 2 – Electronic Discovery Law

Am. Gen. Life Ins. Co. v. Vistana Condominium Owners Assoc., No. 2:12-cv-01324-JAD-NJK, 2014 WL 2041950 (D. Nev. May 16, 2014)

Dec 01 2014

Key Insight: Where defendant produced documents as they were received from third parties and with metadata allowing plaintiff to identify the documents by bates range, file path, and document title, court found that the production ?largely complied? with Rule 34 and the obligation to produce documents as kept in the usual course of business and that sanctions were not warranted but also found that the responses created unnecessary obstacles to the plaintiff and ordered defendant to indicate whether the documents it produced were actually responsive, reasoning that plaintiff should not have to ?guess at which requests were responded to and which were not?

Electronic Data Involved: ESI

Nat?l Jewish Health v. WebMD Health Servs. Grp., Inc., No. 12-cv-02834-WYD-MJW, 2014 WL 2118585 (D. Colo. May 21, 2014)

Dec 01 2014

Key Insight: Where Plaintiff maintained emails in Enterprise Vault with journaling capabilities (which captures and stores all emails in one place) and all ESI produced was searchable, sortable, paired with relevant metadata and included Concordance load files (and where emails were also produced with their attachments), the special master found the production met the requirements of 34(b)(2)(E)(ii) and was both properly produced in the form in which it was ordinarily maintained and in a reasonably usable form and further found that although 34(b)(2)(E)(i) did not apply to ESI, the production also satisfied the traditional requirement to produce documents (which ESI is not) in the manner in which it is kept in the usual course of business; special master made clear that a custodian need not be an individual and that ?[a] company, through an IT department, can serve as the custodian of electronic files kept on company servers.?

Electronic Data Involved: ESI, email

Chavis Van & Storage of Myrtle Beach v. United Van Lines LLC, No. 4:11CV1299 RWS, 2014 WL 1729152 (E.D. Mo. May 1, 2014)

Dec 01 2014

Key Insight: Reducing defendants taxable costs, the court indicated that recovery for bates labeling, converting to pdf for attorney review and redaction, and de-duplication was not allowed and significantly reduced the remaining identified costs, including those for ?processing? and ?preparing? data absent a sufficient explanation of what was meant by those terms

Electronic Data Involved: Taxable costs

Sexton v. Lecavalier, 11 F. Supp. 3d 439 (S.D.N.Y. Apr. 11, 2014)

Dec 01 2014

Key Insight: Court declined to hold third party in contempt where failure to produce Gmail in native format was result of good faith (but mistaken) belief that Gmail emails cannot be produced in native format; opinion noted options for production of Gmail emails in native format

Electronic Data Involved: Gmail emails

Ackerman v. PNC Bank, N.A., No. 12-CV-42 (SNR/JSM), 2014 WL 258565 (D. Minn. Jan. 23, 2014)

Dec 01 2014

Key Insight: District court rejected plaintiff’s appeal of magistrate judge’s order denying sanctions, as there was no evidence that defendants destroyed evidence or inadequately investigated for ESI; fact that evidence was not produced “in and of itself is not a basis for [the court] to conclude that there was unlawful destruction or spoliation”

Electronic Data Involved: ESI

Siltronic Corp. v. Employers Ins. Co. of Wausau, No. 3:11-cv-1493-ST, 2014 WL 991822 (D. Or. Mar. 13, 2014)

Dec 01 2014

Key Insight: After non-party produced responsive documents and sought reimbursement of $17,298 from defendant, court found that that hourly rate of $65 to $160 to search and copy documents was ?inherently unreasonable? and could not be justified, and invoices were vague and included entries for internal communications and meetings and time for senior scientists “to stand around the copier and copy documents”; court ruled that the defendant’s prior payment of $5,670 — about one-third of the total charge — was a reasonable amount, and that non-party must either absorb or charge the plaintiff for the remainder of its cost to comply with subpoena

Electronic Data Involved: Non-party documents relating to or arising out of specific invoices

Bradfield v. Mid-Continent Cas. Co., No. 5:13-cf-222-Oc-10PRL, 2014 WL 4626864 (M.D. Fla. Sep. 15, 2014)

Dec 01 2014

Key Insight: Where plaintiffs? law firm experienced severe power surge that damaged server and firm engaged IT expert who made good faith effort to restore and obtain all data on firm?s computer system, including data responsive to defendant?s document requests, court found that plaintiffs had met their burden of showing that additional ESI was not reasonably accessible because of undue burden or cost, and further determined that circumstances did not warrant forensic examination of firm?s computer system as defendant failed to show good cause for the examination and could not demonstrate that the likely benefit of the discovery sought outweighed the significant burden and expense, considering the importance of the issues at stake and notwithstanding defendant?s offer to bear the financial cost of the forensic examination

Nature of Case: Insurance coverage dispute

The Shaw Group Inc. v. Zurich Am. Ins. Co., No. 12-257-JJB-RLB, 2014 WL 4373210 (M.D. La. Sep. 3, 2014)

Dec 01 2014

Key Insight: Where parties? agreed protective order stated that parties would endeavor to agree on search terms to be utilized in the search for responsive ESI, and current discovery dispute centered solely on the reasonableness of the search terms chosen by each party and the willingness of the parties to negotiate reasonable search terms, court rejected defendant?s proposed list of 90 search terms in light of plaintiff?s showing that the broad search would result in undue burden and expense by generating an excess of irrelevant documents, and instead ordered plaintiff to search for responsive documents using plaintiff?s 28 proposed search terms and protocol which the court found reasonable and well-tailored to locate responsive documents; court faulted parties for their lack of diligence in completing discovery within the court?s deadlines, observing: ?In short, both sides chose to do nothing, waiting to see if the other side would blink first. In doing so, they have compromised the deadlines in the court?s scheduling order, the briefing on dispositive motions, and have essentially gambled with the parameters of ESI discovery.?

Nature of Case: Insurance dispute

Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2014 WL 439785 (S.D. W. Va. Feb 4, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted plaintiffs’ request for reasonable costs incurred in bringing the motion as plaintiffs demonstrated that Ethicon’s negligent loss of relevant evidence unduly complicated plaintiffs’ discovery and case preparation and unnecessarily increased the costs of litigation, but denied request for more serious spoliation sanctions since loss of evidence was not willful or deliberate and plaintiffs could not show irreparable prejudice; magistrate recommended that district judge allow plaintiffs the opportunity to introduce evidence regarding Ethicon’s loss of relevant documents on a case-by-case basis, and when appropriate, tender an adverse inference instruction

Nature of Case: Product liability

Robinson v. County of San Joaquin, No. 2:12-cv-2783 MCE GGH PS, 2014 WL 3845775 (E.D. Cal. July 31, 2014)

Dec 01 2014

Key Insight: A clearly exasperated court described the parties’ discovery efforts to date, highlighted the inconsistencies/incompleteness in response, “as well as the complete cacophony of the San Joaquin County e-mail systems and retrieval,” and issued one final, specific order to be followed by defendant lest serious sanctions issue; among other things, court ordered defendant to perform computer-by-computer search for all current employees in order that any emails relating to plaintiff’s discrimination claims or job performance from 2007 to present may be produced, acknowledging that substantial work would be required for compliance but that judge was “not responsible for the County’s email systems which apparently have been designed for individual control and with no concern for litigation responsibilities”

Archive - December 1, 2014