Archive: September 2016

1
Oracle America, Inc. v. Google, Inc. (ND Cal, 2016)
2
No Sanctions for Deletion where Files were Recoverable or Duplicated Elsewhere
3
Coles Wexford Hotel, Inc. v. Highmark, Inc., No. 10-1609 (W.D. Pa. Sept. 20, 2016)
4
In re Bard IVC Filters Products Liability Litigation (District of Arizona, 2016)
5
Court Shifts Costs to Discover Emails from Backup Tapes
6
Trude v. Glenwood State Bank (Min. App., 2016)
7
Portland Pipe Line Corp. et al. v. City of South Portland et al. (D. Maine, 2016)

Oracle America, Inc. v. Google, Inc. (ND Cal, 2016)

Key Insight: Oracle’s lawyers did not read the ESI produced to them, and instead accused Google of withholding critical evidence (that had been produced).

Nature of Case: Copyright infringement.

Electronic Data Involved: ESI produced by Google.

Keywords: This case shows the critical importance of electronic document review. Discovery-concealment misconduct.

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No Sanctions for Deletion where Files were Recoverable or Duplicated Elsewhere

Erhart v. Bofl Holding, Inc., No. 15-cv-02287-BAS(NLS), 2016 WL 5110453 (S.D. Cal. Sept. 21, 2016)

In this case, the court declined to impose spoliation sanctions for Plaintiff’s deletion of ESI from numerous electronic devices where the majority of the information at issue could be recovered or was duplicated in another location (including the defendant’s systems) and thus was not “destroyed,” and where the prejudice resulting from the few files that could not be recovered was minimal.

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Coles Wexford Hotel, Inc. v. Highmark, Inc., No. 10-1609 (W.D. Pa. Sept. 20, 2016)

Key Insight: The special master considered relevancy to be as broad as the subject matter, which is broader than the scope of discovery contemplated by Rule 26… did not satisfy its burden to show that the information it requests from Highmark is relevant, the court is not required to analyze whether that request is proportional to this case

Nature of Case: Antitrust

Keywords: Reasonably Calculated

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In re Bard IVC Filters Products Liability Litigation (District of Arizona, 2016)

Key Insight: proportionality with regards to relevancy

Nature of Case: Products Liability

Electronic Data Involved: Communications between foreign entities that sell the product and foreign regulatory bodies regarding the products

Keywords: Proportionality, marginally relevant, relevancy

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Court Shifts Costs to Discover Emails from Backup Tapes

Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB, 2016 WL 4061575 (W.D. Wash. July 29, 2016)

In this case, Defendant successfully established that retrieving archived emails from disaster recovery backup tapes “would result in an undue burden and cost” pursuant to Fed. R. Civ. P. 26(b)(2)(B).  Although Plaintiff was unable to establish good cause to compel production, the court indicated that the archived emails were nonetheless “‘discoverable’ under Fed. R. Civ. P. 26(b)(1)” and ordered that “upon a request by Plaintiff, Defendant should facilitate access to the discovery” but that Plaintiff would bear the expense, payable in advance.

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Trude v. Glenwood State Bank (Min. App., 2016)

Key Insight: sanctions affirmed for discovery violations including using data wiping software to delete files

Nature of Case: repossession

Electronic Data Involved: deleted electronic records

Keywords: earth moving equipment repossession, deleted computer files, data wiping

Identified State Rule(s): Minnesota Rule of Civil Procedure 60.02

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Portland Pipe Line Corp. et al. v. City of South Portland et al. (D. Maine, 2016)

Key Insight: Two step process of TAR and manual review of privilege negated need for in camera review

Nature of Case: declaratory relief re environmental ordinance

Electronic Data Involved: emails

Keywords: in camera review

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