Archive: December 2016

1
Kissing Camels Surgery Center, LLC v. Centura Health Corp., No. 12-cv-03012-WJM-NYW, 2016 WL 277721 (D. Colo. Jan. 22, 2016)
2
LBI, Inc. v. Sparks, No. KNLCV, 2016 WL 351850 (Conn. Super. Ct. Jan. 4, 2016)
3
Prezio Health, Inc. v. John Schenk & Spectrum Surgical Instruments, Inc., No. 3:13 CV 1463 (WWE), 2016 WL 111406 (D. Conn. Jan. 11, 2016)
4
Exclaim Mktg., LLC v. DIRECTV, Inc., No. 5:11-cv-684-FL, 2016 WL 1258776 (E.D. N.C. Mar. 28, 2016)
5
Hallmark v. Cohen & Slamowitz, LLP, NO. 11-CV-842W(F), 2016 WL 1128494 (W.D.N.Y. Mar. 23, 2016)
6
Madison Oslin, Inc. v. Interstate Res., Inc., No. MJG-12-3041, 2016 WL 1077101 (D. Md. Mar. 18, 2016)
7
Friedman v. Philadelphia Parking Auth., No. 14-6071, 2016 WL 6247470 (E.D. Pa. Mar. 10, 2016)
8
In re Bard IVC Filters Prod. Liab. Litig., —F.R.D.—, 2016 WL 4943393 (D. Ariz. Sept. 16, 2016)
9
Okada v. Whitehead, No. SACV 15-01449-JLS (KESx), 2016 WL 9448484 (C.D. Cal. June 16, 2016)
10
Colonial Bancgroup, Inc. v. Pricewaterhousecoopers LLP., No. 2:11-cv-746-WKW, 2016 WL 9687001 (M.D. Ala. Jan. 22, 2016)

Kissing Camels Surgery Center, LLC v. Centura Health Corp., No. 12-cv-03012-WJM-NYW, 2016 WL 277721 (D. Colo. Jan. 22, 2016)

Key Insight: Where Plaintiffs objected to Defendants? ?duplicative? requests and claimed they had already produced responsive documents but provided Defendants with no guidance as to where such documents could be found within the voluminous production, the court acknowledged that it would ?ordinarily? conclude that Plaintiffs had no obligation to identify responsive documents but, citing the volume of data at issue, the ?asymmetry of information regarding the production between Plaintiffs,? the time the case had been pending, and the fact that additional discovery would be required, the court concluded that Plaintiff should provide additional information and ordered that Defendants would be permitted to identify ten categories of requested documents that Plaintiffs claimed to be duplicative and that Plaintiffs must then identify documents responsive to those requests

Electronic Data Involved: ESI

LBI, Inc. v. Sparks, No. KNLCV, 2016 WL 351850 (Conn. Super. Ct. Jan. 4, 2016)

Key Insight: Court declined to find ESI ?not reasonably accessible? because of the alleged cost of production where the case at issue was worth $4.5 million and thus the alleged costs did not appear ?sufficiently disproportionate,? where the defendant did not allege a lack of resources, and where defendant had a ?significant interest? in performing the discovery work in a manner that controlled costs but made two exceptions as to documents that would need to be culled and separately recoded and restored before they could be searched and as to documents that needed to be converted to a searchable format to determine tier potential relevance; court ordered parties to confer re: production protocol and cost shifting

Electronic Data Involved: ESI

Prezio Health, Inc. v. John Schenk & Spectrum Surgical Instruments, Inc., No. 3:13 CV 1463 (WWE), 2016 WL 111406 (D. Conn. Jan. 11, 2016)

Key Insight: Where individual Defendant informed his family that litigation related emails were to be preserved, but where at least three of eight ordered to be produced were lost, perhaps when Defendant?s wife transferred her emails to a new App, court found Defendant?s effort was ?grossly deficient? noting that defense counsel and Defendant had failed to impress upon the family the significance of the emails; addressing question of an appropriate sanction, Court cited Residential Funding Corp, 306 F.3d 99 (2d Cir. 2002), and ordered a ?permissive adverse inference? and payment of Plaintiff?s attorney?s fees and costs incurred in pursuing the issue

Electronic Data Involved: Emails from account used by multiple family members

Hallmark v. Cohen & Slamowitz, LLP, NO. 11-CV-842W(F), 2016 WL 1128494 (W.D.N.Y. Mar. 23, 2016)

Key Insight: Court denied Defendant?s motion for protective order shifting the costs of producing inaccessible data as part of agreed upon sample set where Defendant failed to adequately establish the justification for cost-shifting by submitting broadly stated affidavit that provided no explanation re: source of affiant?s knowledge of his assertions or any explanation of what the term ?inaccessible? was meant to apply to (e.g., digitized records v. hard copy) and where affiant offered no justification for estimates re: required man hour or hourly rates; court indicated that even if Defendant had established its burden, application of the Zubulake factors re: cost-shifting favored Plaintiff

Nature of Case: FCDPA

 

Madison Oslin, Inc. v. Interstate Res., Inc., No. MJG-12-3041, 2016 WL 1077101 (D. Md. Mar. 18, 2016)

Key Insight: Where Plaintiffs objected to Defendants? recovery of ESI-related costs because the parties agreed that the costs of producing ESI from reasonably accessible sources would be borne by the producing party, the court reasoned that ?it did not follow that the scope of the agreement [could] be expanded to also address the costs recoverable to the prevailing party upon completion of the case,? that ?the parties agreed to require the production of metadata, in addition to simply reformatting the information into a non-editable format,? and that ?[t]he costs for such production are recoverable? and found that the copying costs incurred for the production of ESI were required for use in the case, limited to allowable costs, and reasonable and thus Plaintiff?s motion for a review of the clerk?s order taxing costs was denied

Nature of Case: Taxable costs where parties had agreed that producing parties would bear cost of production from reasonably accessible sources

 

Friedman v. Philadelphia Parking Auth., No. 14-6071, 2016 WL 6247470 (E.D. Pa. Mar. 10, 2016)

Key Insight: Where Defendant failed to preserve relevant evidence for reasons including its failure to timely issue a litigation hold following receipt of a letter threatening litigation and its lack of understanding related to the migration of its data to a new archival system resulting in the loss of ESI (e.g., Defendant was notified of but failed to address an ?over limit folder problem? related to two custodians, failed to confirm that data had successfully migrated before instructing employees to delete information ,etc.) but where Defendant undertook SUBSTANTIAL efforts to address its discovery defects and Plaintiff was unable to identify any specific information that was lost (where much was received from third parties or eventually produced as a result of Defendant?s remedial efforts) or to establish an intent to deprive, the court declined to impose sanctions pursuant to recently amended Rule 37(e); instead, pursuant to Rule 37(a) the court ordered Defendant to reimburse Plaintiff?s reasonable attorney?s fees and expenses necessary to prepare and file their motion for sanctions; regarding Defendant?s lack of a document retention policies and potential loss of data before implementation of its archive after its duty to preserve was triggered, the court indicated that prejudice was ?speculative? but invited a motion from Plaintiff for ?evidentiary rulings? if desired

In re Bard IVC Filters Prod. Liab. Litig., —F.R.D.—, 2016 WL 4943393 (D. Ariz. Sept. 16, 2016)

Key Insight: In this case, the parties disagreed on the discoverability of communications between Defendants? foreign subsidiaries and divisions and foreign regulators regarding the filters at issue in the case. Following analysis of the effects of the December 1, 2015 amendments on the Federal Rules of Civil Procedure and of the specific facts of the case, the court determined that the at-issue communications were ?only marginally relevant? and was persuaded that ?the burden of [the] foreign discovery would be substantial.? Thus, the court concluded that Defendants were not required to search their foreign entities for communications with foreign regulators. In the course of its discussion of the amendments, the court stated: “Amended Rule 26(b)(1) was adopted pursuant to the Rules Enabling Act, 28 U.S.C. ? 2072 et. seq. That statute provides that ‘[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.’ Id., ? 2072(b). Thus, just as a statute could effectively overrule cases applying a former legal standard, the 2015 amendment effectively abrogated cases applying a prior version of Rule 26(b)(1). The test going forward is whether evidence is ‘relevant to any party?s claim or defense,’ not whether it is ‘reasonably calculated to lead to admissible evidence.'”

Okada v. Whitehead, No. SACV 15-01449-JLS (KESx), 2016 WL 9448484 (C.D. Cal. June 16, 2016)

Key Insight: Where Defendant explained that certain emails were not produced because he lost access to the account which subsequently expired and thus the emails were not in his possession custody or control, the court concluded that the duty to preserve was triggered prior to the expiration of the account by the filing of a separate lawsuit involving the same at-issue property in which the parties to this case were codefendants and explained in footnote that it could locate no case law limiting the duty to preserve to an adversary as opposed to all parties to litigation and noted that the duty to preserve ?may carry over to subsequent lawsuits involving the same subject matter?; finding the spoliation was prejudicial but not intentional, the court ordered the jury be informed of the failure to preserve, but not instructed to presume anything about the content of the emails

Nature of Case: Breach of Settlement Agreement

Electronic Data Involved: e-mail

Colonial Bancgroup, Inc. v. Pricewaterhousecoopers LLP., No. 2:11-cv-746-WKW, 2016 WL 9687001 (M.D. Ala. Jan. 22, 2016)

Key Insight: Where plaintiff sought production of specific folders from e-mail inboxes after defendant had already produced e-mails from those custodians as identified by keyword search terms r, the court found the request duplicative and denied plaintiff?s request. Where plaintiff sought to compel additional searches likely to capture information well beyond that to which plaintiff was entitled and resisted a compromise offer of running the searches with restrictive terms designed to weed out irrelevant information, the court granted the request for additional searches but also granted defendant?s request to include limiting terms to restrict the capture of irrelevant data. Where plaintiff requested a sworn affidavit detailing defendant?s litigation hold efforts including the ?specific actions? which hold notice recipients were directed to take and any enforcement efforts, the court agreed with defendant that specific actions and enforcement efforts were subject to attorney-client privilege but directed plaintiff to ?provide this information via ?sworn affidavit? in a manner which, does not invoke the work product doctrine or violate the attorney-client privilege OR to make a specific legal and factual showing [] as to any work product objection or attorney-client privilege claim? and also ordered production of the other requested information, including custodian names and document types subject to the hold.

Nature of Case: Professional Negligence

Electronic Data Involved: e-mail

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