Archive: December 2015

1
Granados v. Traffic Bar and Restaurant, Inc. (S.D.N.Y., 2015)
2
Absent Plaintiff’s Control of Emails in Employees’ Personal Accounts, Court Denies Motion to Compel
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Court Applies Amended Rule 26, Concludes Burdens on Parties Resisting Discovery Have Not Fundamentally Changed
4
In Criminal Case, Failure to Preserve Results in Exclusion of All Text Messages, Possible Adverse Inference
5
Electronic Discovery Law Blog Named to ABA Journal’s Blawg 100 (Again!)
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e-Discovery Rules: US Court of International Trade, US Tax Court, US Court of Federal Claims
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Today is the Day! Amendments to Federal Rules of Civil Procedure Effective Dec. 1, 2015
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Andra Grp. LP v. JDA Software Grp., Inc, No. 3:15-mc-11-K-BN, 2015 WL 12731762 (N.D. Tex. April 13, 2015)
9
Health Mgmt. Assocs., Inc. v. Salyer, No. 14-14337-CIV-ROSENBERG/LYNCH, 2015 WL 12778793 (S.D. Fla. Aug. 19, 2015)
10
Unichappel Music, Inc. v. Modrock Prods., LLC, No. 14-2382-DDP (PLA), 2015 WL 12697738 (C.D. Cal. Aug. 28, 2015)

Granados v. Traffic Bar and Restaurant, Inc. (S.D.N.Y., 2015)

Key Insight: if sanctions can be granted for inconsistent and incomplete response from opposing party

Nature of Case: violations of the Fair Labor Standards Act and the New York Labor Law

Electronic Data Involved: initial interrogatories and verifications

Keywords: spoliation, sanctions, default judgment, defunct business, unreachable party

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Absent Plaintiff’s Control of Emails in Employees’ Personal Accounts, Court Denies Motion to Compel

Matthew Enter., Inc. v. Chrysler Grp., LLC, No. 13-cv-04236-BLF, 2015 WL 8482256 (N.D. Cal. Dec. 10, 2015)

In this case, the court declined to compel production from Plaintiff’s employees’ personal email accounts because Plaintiff did not have control of the emails for purposes of discovery.  As to the contents of Plaintiff’s “customer communications database” maintained by a third party vendor, however, the court found that Plaintiff did have control of the ESI, as evidenced by the prior production of certain data at Plaintiff’s request.

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Court Applies Amended Rule 26, Concludes Burdens on Parties Resisting Discovery Have Not Fundamentally Changed

Carr v. State Farm Mut. Auto. Ins. Co., No.3:15-cv-1026-M, 2015 WL 8010920 (N.D. Tex. Dec. 7, 2015)

In this case, the court addressed Defendant’s Motion to Compel discovery responses and undertook substantial analysis of the effects of newly amended Federal Rule of Civil Procedure 26 on the burdens of parties’ resisting discovery, concluding they had not fundamentally changed.

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In Criminal Case, Failure to Preserve Results in Exclusion of All Text Messages, Possible Adverse Inference

United States v. Vaughn, No. 14-23 (JLL), 2015 WL 6948577 (D.N.J. Nov. 10, 2015)

In this criminal case, a pro se defendant sought sanctions, including dismissal of the indictment, for the Government’s failure to preserve text messages relevant to its investigation.  Upon examination of the facts, including the Government’s acknowledged failure to preserve certain text messages and constantly changing explanations surrounding that failure as well as the “different level of diligence” applied to different text messages (care was taken to preserve certain messages, but not others), the court determined sanctions were warranted.  Accordingly, the court ordered that the Government would be precluded from using any text messages in its case-in-chief and reserved judgment until trial regarding the propriety of an adverse inference instruction.

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Electronic Discovery Law Blog Named to ABA Journal’s Blawg 100 (Again!)

The e-Discovery Analysis & Technology (e-DAT) Group at K&L Gates is proud to announce that the Electronic Discovery Law blog has again been named to the ABA Journal’s Blawg 100 list. Thanks to all who nominated us and to all of our readers for their ongoing interest in the important issues affecting electronic discovery!

Click here to read more about the ABA Journal’s Blawg 100 list and to see this year’s list of excellent legal blogs and 2015 Hall of Fame inductees.

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e-Discovery Rules: US Court of International Trade, US Tax Court, US Court of Federal Claims

Rules of the U.S. Court of International Trade
Rule 16 Postassignment Conferences; Scheduling; Management
Rule 26 Duty to Disclose; General Provisions Governing Discovery
Rule 33 Interrogatories to Parties
Rule 34 Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
Rule 37 Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Rule 45 Subpoena

United States Tax Court Rules of Practice and Procedure
Rule 70 General Provisions
Rule 71 Interrogatories
Rule 72 Production of Documents, Electronically Stored Information, and Things
Rule 82 Depositions Before Commencement of Case
Rule 103 Protective Orders
Rule 104 Enforcement Action and Sanctions
Rule 147 Subpoenas

Rules of the United States Court of Federal Claims 
Rule 16 Pretrial Conferences; Scheduling; Management
Rule 26 Duty to Disclose; General Provisions Governing Discovery
Rule 33 Interrogatories to Parties
Rule 34 Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
Rule 37 Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Rule 45 Subpoena

Today is the Day! Amendments to Federal Rules of Civil Procedure Effective Dec. 1, 2015

The wait is over.  Amendments to the Federal Rules of Civil Procedure are effective today.

The 2015 amendments to the Federal Rules of Civil Procedure are significant and will have a direct impact on the day to day practice of law, particularly discovery.  If you’ve been putting off your review of the amendments, the time for action is now!  Take a few minutes (or a few hours) to review these important amendments and/or attend one of K&L Gates’ two live events to learn more! (Live events are also available via webinar.)

CLICK HERE for an overview of the rules amendments package.

To register for K&L Gates’ complimentary CLE, “Federal Rule Changes Affect e-Discovery – Are You Ready This Time?” follow the links below:

  • CLICK HERE to attend LIVE! in Seattle: Dec. 1, 2015, 1:30 PM -5:30 (with post-program reception)
  • CLICK HERE to attend LIVE! in Pittsburgh: Dec. 3, 2015, 8:30 AM-12:15
  • Can’t Attend in Person? Email Allison Peterson (allison.peterson@klgates.com) to attend via Webinar. Log-in instructions will be emailed to you.

Andra Grp. LP v. JDA Software Grp., Inc, No. 3:15-mc-11-K-BN, 2015 WL 12731762 (N.D. Tex. April 13, 2015)

Key Insight: Magistrate Judge concluded that absent evidence of a special relationship or circumstance that imposed a duty to preserve evidence, a third party did not have an obligation to preserve evidence before it was served with a subpoena, even though it was aware of potential litigation against a party with whom it had a close working relationship. Where the non-party was ordered to search for and produce all responsive information but limited its search to its ShareFile and failed to adequately investigate whether responsive information existed on its computers and other devices, the Magistrate judge reasoned that compliance required more than ?simply asking current employees if they have responsive documents? and concluded that third party?s mere survey of current employees (omitting an employee with a difficult personality) as to whether they had responsive emails without an attempt to search or forensically image any devices in its custody failed to satisfy the Discovery Order?s request to make ?all reasonable efforts to search? for potentially relevant documents, violating Rule 45(g).

Electronic Data Involved: ESI

Health Mgmt. Assocs., Inc. v. Salyer, No. 14-14337-CIV-ROSENBERG/LYNCH, 2015 WL 12778793 (S.D. Fla. Aug. 19, 2015)

Key Insight: Court granted motion to compel forensic examination of Defendant?s ?personal computer devices and his personal email account? where Defendant claimed that his mobile phone was damaged, that a thumb drive was lost, and that his laptop stopped working, and where Defendant failed to search his email and gave inaccurate ?representations? about it; court admonished Plaintiff ?to give special care? to Defendant?s privacy and ordered that Defendant was allowed to be present for the search, and that the search criteria be prepared in advance and chosen to limit the scope to matters ?directly relevant to its claims for relief?

Electronic Data Involved: Forensic examination of computer, devices, email

Unichappel Music, Inc. v. Modrock Prods., LLC, No. 14-2382-DDP (PLA), 2015 WL 12697738 (C.D. Cal. Aug. 28, 2015)

Key Insight: Where responding party asserted that an at-issue request would require production of ?voluminous? irrelevant documents, that identification of the requested documents would require searching through thousands of clients files estimated to take ?one or more persons weeks to accomplish? or would cost between $8740 – $18350 if a vendor was retained to assist – not including attorney review, and that the information was available through alternative means, including depositions, the court concluded that the documents were ?at least minimally relevant? but that the burden of FULL production outweighed the benefit to the requesting party and ordered the responding party to utilize search terms or to hire a vendor to produce a more limited set of documents as prescribed by the court; court declined to shift the costs of the search , reasoning (in footnote) that ?[t]he mere fact that responding to a discovery request will require the objecting party ?to expend considerable time, effort and expense consulting, reviewing and analyzing ?huge volumes of documents and information? is an insufficient basis to object? to a relevant discovery request.?

Electronic Data Involved: ESI

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