Archive: October 2016

1
Court Orders Two Permissive Adverse Inferences at Trial
2
Court Compels Cooperation Regarding Search Terms
3
Court Finds “Rather Broad” Request to be Proportional Upon Factor-by-Factor Analysis

Court Orders Two Permissive Adverse Inferences at Trial

First Fin. Sec., Inc. v. Freedom Equity Grp., LLC, No. 15-cv-1893-HRL, 2016 WL 5870218 (N.D. Cal. Oct. 7, 2016)

In this case, the court imposed two permissive adverse inference instructions against Defendant at trial.  The first adverse inference was ordered pursuant to FRCP 37(e)(2) for Defendant’s failure to preserve text messages.  The second was imposed pursuant to FRCP 37(b)(2) (authorizing the court to “remedy the violation of a discovery order with a ‘just’ sanction”), upon the court’s conclusion that Defendant’s failure to produce certain native-format data, despite being repeatedly ordered to do so, resulted in substantial prejudice to the Plaintiff.  In so concluding, the court rejected the argument that it was required to find bad faith, reasoning instead that it could impose such a sanction upon a determination of gross negligence.

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Court Compels Cooperation Regarding Search Terms

Pyle v. Selective Ins. Co. of Am., No. 2:16-cv-335, 2016 WL 5661749 (W.D. Pa. Sept. 30, 2016)

In this case, the court granted Defendant’s motion to compel Plaintiff’s cooperation regarding search terms intended to identify responsive emails requested by the plaintiff.  Notably, in response to Defendant’s motion, Plaintiff’s counsel argued that Defendant had “cited no authority to support its request, nor identified any burden that it face[d] in locating and producing the requested emails.”  Reasoning that Plaintiff’s argument “totally misses the mark” the court concluded that the parties must confer:

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Court Finds “Rather Broad” Request to be Proportional Upon Factor-by-Factor Analysis

First Niagara Risk Mgmt., Inc. v. Folino, —F.R.D.—, 2016 WL 4247654 (E.D. Pa. Aug. 11, 2016)

In this case, the court addressed the parties’ disagreement regarding a proper scope of discovery and Plaintiff’s related motion to compel the search of Defendant’s electronic devices, to be conducted by an independent e-Discovery vendor utilizing search terms proposed by the plaintiff.  Upon finding the requested information relevant and following consideration of each of the proportionality factors identified in recently amended Rule 26(b)(1), the court granted Plaintiff’s motion to compel.

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