Archive: December 2016

1
J&JB Timberlands, LLC v. Woolsey Energy II, LLC, No. 14-cv-01318-SMY-PMF, 2016 WL 4006671 (S.D. Ill. Apr. 28, 2016)
2
Learning Care Grp. v. Armetta, No. 3:13-cv-1540 (VAB), 2016 WL 4191251 (D. Conn. June 17, 2016)
3
Ballentine v. Las Vegas Metro Police Dept., NO. 2:14-cv-01584-APG-GWF, 2016 WL 3636917 (D. Nev. July 5, 2016)
4
Whitesell Corp. v. Electrolux Home Prods., Inc., NO. CV 103-50, 2016 WL 1317673 (S.D. Ga. Mar. 31, 2016)
5
FTC v. Directv, Inc., No. 15-cv-01129-HSG (MEJ), 2016 WL 3351945 (N.D. Cal. June 9, 2016)
6
MP Nexlevel of California, Inc. v. CVIN LLC, No. 1:14-cv-00288-LJO-EPG, 2016 WL 1408459 (E.D. Cal. April 11, 2016)
7
In re Ex Parte Application of Global Energy Horizons Ltd., No. 14-3180, 2016 WL 1657889 (3d Cir. Apr. 26, 2016)
8
Core Labs. LP v. Spectrum Tracer Servs., LLC, No. CIV-11-1157-M, 2016 WL 879324 (W.D. Okla. Mar. 7, 2016)
9
W. Radio Servs. Co. v. Allen, No. 6:14-CV-00747-AA, 2016 WL 684658 (D. Or. Feb. 16, 2016)
10
Assoc. Elec. & Gas Ins. Servs. V. BendTec, Inc., No. 14-1602(MJD/LIB), 2016 WL 740409 (D. Minn. Feb. 24, 2016)

J&JB Timberlands, LLC v. Woolsey Energy II, LLC, No. 14-cv-01318-SMY-PMF, 2016 WL 4006671 (S.D. Ill. Apr. 28, 2016)

Key Insight: Although the court found that Defendants breached their duty to preserve certain emails by (1) failing to take reasonable steps to preserve Kelley?s emails, (2) misrepresenting the manner in which the data was lost, (3) misrepresenting that the lost data could not be recovered, and (3) using the laptop in May and August, 2015, the court also found the breach was not intentional and that Plaintiff was only ?minimally harmed? and eventually able to obtain the missing information and thus declined to strike Defendants? pleadings but ordered that Defendants should compensate Plaintiff for the reasonable attorneys? fees and expenses incurred in obtaining the email

Electronic Data Involved: Emails

Learning Care Grp. v. Armetta, No. 3:13-cv-1540 (VAB), 2016 WL 4191251 (D. Conn. June 17, 2016)

Key Insight: Where Defendant destroyed laptop of departed employee (a ?key point of contact? for Plaintiffs in their relationship with Defendant) in accordance with its usual course of business despite a duty to preserve, court found that the information lost was relevant and that prejudice resulted, but found that Defendant was merely negligent and that awarding attorneys? fees and costs was an appropriate sanction (not default judgment or an adverse inference as had been requested); court declined to consider the newly amended rules of procedure where the parties first raised the issue in September 2015, before the application of the new rules

Electronic Data Involved: Contents of laptop of departed employee

Ballentine v. Las Vegas Metro Police Dept., NO. 2:14-cv-01584-APG-GWF, 2016 WL 3636917 (D. Nev. July 5, 2016)

Key Insight: Among other things, court denied motion for protective order upon finding that Plaintiffs were ?entitled to obtain basic information sufficient to determine whether searches were reasonably conducted and the results properly verified? even without ?evidence that specific documents were destroyed or withheld? and reasoned that ?the fact that [Defendant?s] attorney(s) conducted or supervised the searches does not protect such non-privileged information from disclosure?

Electronic Data Involved: Information re: efforts to preserve, search

Whitesell Corp. v. Electrolux Home Prods., Inc., NO. CV 103-50, 2016 WL 1317673 (S.D. Ga. Mar. 31, 2016)

Key Insight: Where promised emails were not produced but Defendant ultimately produced all documents relevant to the alleged spoliation, including ?preservation communications to document custodians, a list of custodians who were searched, the search terms used to conduct the search, and project documents and materials relating to such searches,? and also submitted a representative for an extensive Rule 30(b)(6) deposition, the court found Plaintiff?s request to compel production of ?every privileged document described as concerning data collection?[wa]s overly broad, unduly burdensome and ha[d] not been shown to relate to the issue at the forefront of this entire exercise?the missing Leon emails? despite acknowledging that ?otherwise privileged documents may be discoverable upon a preliminary showing of spoliation.?

Electronic Data Involved: Information related to preservation efforts, etc. where Plainitff alleged spoliation by Defendant and sought to compel production of privileged information

FTC v. Directv, Inc., No. 15-cv-01129-HSG (MEJ), 2016 WL 3351945 (N.D. Cal. June 9, 2016)

Key Insight: Following the parties? court-ordered meet and confer to achieve proportionality in Defendant?s requests for production of complaints from FTC customers regarding Defendant?s competitors, Defendant reduced the number of competitors about which it sought information from 10 to 3, but court also approved Plaintiff?s proposal to produce only a random sampling, even from the reduced list of competitors, where the proposal ?more closely comport[ed] with Rule 26?s demand for proportionality? noting that the relevance of the at-issue materials was ?largely speculative?

Electronic Data Involved: Customer complaints submitted to FTC re: Defendant’s competitors

MP Nexlevel of California, Inc. v. CVIN LLC, No. 1:14-cv-00288-LJO-EPG, 2016 WL 1408459 (E.D. Cal. April 11, 2016)

Key Insight: Court found that the at-issue discovery was not required under Fed. R. Civ. P. 26(b)(1) and declined to compel production of every document ?referring or relating? to Plaintiff?s ?designated Responsible Managing Employee? for all 11 of Plaintiff?s California projects where the court determined that the relevance was minimal, where both parties ?appeared to agree? that the request would require ?a search for every document to or from [the employee]? and Plaintiff alleged that many documents were not electronically searchable, and where the court recognized that ordering such production could cause a ?chilling effect? that may ?discourage [construction] companies from filing a lawsuit merely to avoid the discovery costs?

Electronic Data Involved: ESI and other records “referring or relating” to specified employee

In re Ex Parte Application of Global Energy Horizons Ltd., No. 14-3180, 2016 WL 1657889 (3d Cir. Apr. 26, 2016)

Key Insight: Third Circuit affirmed denial of Global Energy Horizon?s motion to compel reasoning that the District Court was ?on firm ground? in determining the burden imposed upon the non-party would ?likely have been intrusive and burdensome in violation of Rule 45 despite Global?s offer to pay for reasonable cost? where responding to the subpoena seeking ?all communications between [the non-party?s] 400 to 450 employees? and another entity and any financial documents relating to certain technology would require that each employee be interviewed and their hard drives be copied and reasoning that the District Court was reasonable in deciding not to modify the subpoena where the non-party had already ?spent thousands of dollars and substantial time? responding to prior requests; Circuit Court also affirmed lower court?s finding that non-party was under no duty to preserve emails where the record ?did not lead the court to conclude? that the non-party ?should have known that litigation was imminent? and ?Global never sought a litigation hold on [the non-party?s] electronically stored information?

Electronic Data Involved: ESI

Core Labs. LP v. Spectrum Tracer Servs., LLC, No. CIV-11-1157-M, 2016 WL 879324 (W.D. Okla. Mar. 7, 2016)

Key Insight: Where emails were lost in Defendant?s transition from one service provider to another, despite efforts to preserve, the court found that Plaintiff was prejudiced by the loss and found that a presumptive adverse inference was appropriate but declined to impose sanctions for Defendant?s deletion of ?personal? files prior to production of a hard drive for forensic analysis where the court found such deletion ?reasonable? and also declined to impose sanctions for the wiping of an at-issue computer where the court found no bad faith in light of the alleged ?computer problems? that the wipe was intended to address and Defendant?s claim that ?anything that needed to be kept? was exported first; notably court?s analysis included specific recognition of newly amended Rule 37(e) but also recognized a common law standard requiring only prejudice to impose a spoliation sanction

Electronic Data Involved: Emails, computer files, contents of hard drive

W. Radio Servs. Co. v. Allen, No. 6:14-CV-00747-AA, 2016 WL 684658 (D. Or. Feb. 16, 2016)

Key Insight: Noting that ?this court has held previously, ?the costs associated with the formatting and preparing of the administrative record are proper and necessarily incurred to produce electronic copies? for use in the case? the court allowed costs for ?converting TIFF images into searchable PDF format, electronically Bates-stamping the PDF images, hyperlinking the PDF images to the index, editing the index, and burning the images to DVDs.?

Electronic Data Involved: Taxable costs

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