December 2016 – Page 5 – Electronic Discovery Law

In re Fluoroquinolone Prods. Liab. Litig., MDL. No. 15-2642 (JRT), 2016 WL 4045414 (D. Minn. July 20, 2016)

Dec 01 2016

Key Insight: Court ruled that defendants may, under the proportionality factors in 26(b)(1), limit their search to databases and central repositories rather than engage in custodial searches for all cases at the Defendant Fact Sheet (DFS) stage of the MDL due to the ?significant burden of the proposed custodial-file searches? and the less-than-certain benefits of such searches.? The Court noted Defendant?s acknowledgement that custodial searches would likely be ?warranted for a narrower group of cases at a later stage? and that plaintiffs were free to seek permission to engage in further discovery if information available in the structured databases was insufficient.

Nature of Case: Products Liability

Electronic Data Involved: ESI

Steward Health Care Sys. LLC v. Blue Cross & Blue Shield of Rhode Island, No. 15-272, 2016 WL 8716426 (E.D. Pa. Nov. 4, 2016)

Dec 01 2016

Key Insight: Third party objected to Subpoena to produce documents alleging undue burden and significant expense and refused to comply without a cost-shifting order. The Court consequently granted the requesting party?s motion to compel and the third party was ordered to produce all responsive documents by the ?most reasonable and practical method it can procure.? Following production, the third party then sought $30,603.55 in expenses. The Court?s two-prong analysis examined the expenses as to whether they were both reasonable and significant. The Court did not award attorneys? fees because the privilege and confidentiality review was a benefit only to the third party. Partial vendor costs were awarded, namely the amount it would have been had the third party used the vendor suggested by the requesting party and some additional miscellaneous costs were awarded. The Court found a total of $4,072 were expenses that resulted from compliance with the Subpoena and did qualify as ?significant expenses.?

Nature of Case: Antitrust and tort

Electronic Data Involved: Gmail

Lab. Skin Care Inc. v. Ltd. Brands Inc., No. 06?601?LPS, 2016 WL 1266564 (D. Del. Mar. 20, 2016)

Dec 01 2016

Key Insight: Defendants sought to recover costs incurred to scan and convert paper documents into electronic format, Bates stamp and print the documents they produced; as well as costs for taking corporate representative depositions. Plaintiffs objected ?on the basis that more than two-thirds of the production costs?are the costs of making electronic copies and extra paper copies of documents for [Defendants?] own use.? The court found Defendants costs were incurred in order to comply with the production of ESI, and that costs for Bates stamping was ?reasonable and necessary? – as Defendants pointed out ?producing 125,517 pages?without a single identifying number would render such production entirely useless.? Also, Defendants provided sufficient supporting evidence for the costs incurred in making copies of the produced documents. The court granted Defendants? request for costs. Plaintiffs argued the Clerk of Court?s finding that Defendants failed to meet the requirements of Local Rule 54.1(b)(3) regarding deposition costs was correct. This court indicated 28 U.S.C. ? 1920 provides the ?outer bounds? of a courts? discretion in awarding costs, citing the Third Circuit ?deposition expenses, including the costs of deposition transcripts, may be awarded as costs to the prevailing party if the court determines, at the end of the litigation, that the copies were of papers necessary for use in the case.? Finding Defendants? deposition and transcripts were ?at least ?reasonably necessary? as part of their efforts to effectively litigate this patent case,? the court granted Defendant?s request.

Nature of Case: Taxable costs

Electronic Data Involved: ESI

Melchior v. Hilite Int?l Inc., No. 3:11-CV-3094-M (BH), 2016 WL 1165911 (N.D. Tex. Feb. 26, 2016)

Dec 01 2016

Key Insight: Defendant objected to portion of Plaintiff?s bill of costs for electronic data processing, document conversion, exhibit stamping and copy charges. The court sustained Defendant?s objection relating to costs for (i) ?hosting fees, user fees and other miscellaneous database charges? (outside the scope of ?copying or scanning materials?); (ii) converting ESI documents to TIFF format (parties agreed to produce as either native or TIFF files – ?[b]ecause any conversion of the electronic files was the choice of each party,? the conversion was not ?necessarily obtained for use in the case?); (ii) exhibit stamps (not taxable under 1920(4)); (iv) building an electronic database (?steps leading up to the process of copying? do not fall under copying); (v) Plaintiff?s conversion of documents produced to him by the Defendant (?not necessarily obtained?); and (vi) costs of printing electronic documents to paper (for Plaintiff?s convenience rather than necessary). Plaintiff?s recoverable amount was reduced accordingly.

Nature of Case: Taxable costs

Electronic Data Involved: ESI

Procom Heating, Inc. v. GHP Group, Inc., No. 1:13-cv-00163-GNS, 2016 WL 8203221 (W.D. Ky. July 8, 2016)

Dec 01 2016

Key Insight: Where Defendant formulated search terms and identified custodians unilaterally before undertaking its search and where plaintiff suspected the results were insufficient based on both the low volume of information produced and the failure to produce certain expected information (based on third parties? productions), the court considered Defendant?s multiple proposals for addressing the issue and determined that starting again, from scratch, was most appropriate; addressing whether the cost was disproportionate, court declined to characterize the costs as ?additional expense,? reasoning that Defendant ?should have resolved these issues before undertaking its unilateral search?

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Ferrara Bros. Bldg. Materials Corp. v. FMC Constr. LLC, 54 Misc.3d 529 (N.Y. Sup. Ct. 2016)

Dec 01 2016

Key Insight: Plaintiff, arguing Defendant?s contract was backdated, moved for sanctions after Defendant discarded computers (2 years after the action commenced) containing native information and system metadata for the contract at issue. The contract?s creation date was at issue in this case and Defendant had not indicated that it preserved the metadata before discarding the computers (which was not a regular or automatic event but rather a ?curiously fortuitous occurrence?). In considering sanctions, the court concluded that Defendant?s submission of an affidavit indicating that the computers were replaced and discarded did not ?rebut the presumption that Casa was negligent, even grossly negligent? and found that a negative inference at trial would be ?sufficient to strike a balance between the need to ameliorate any prejudice related from the destruction of the computer system, and the absence of demonstrable willfulness ??

Nature of Case: Breach of contract

Electronic Data Involved: Metadata

Nelson v Am. Family Mut. Ins. Co., No. 13-cv-607 (SRN/SER), 2016 WL 6917205 (D. Minn. May 13, 2016)

Dec 01 2016

Key Insight: Relying on Plaintiffs? delay in raising its problems with discover and the principle of proportionality, particularly ?the importance of the discovery in resolving the issues and whether the burden of production outweighs the discovery?s likely benefits,? the court denied Plaintiff?s motion to compel additional pre-certification discovery; court?s analysis included rejection of proposed sampling where it was clear that ?sampling would be the beginning rather than the end, of this issue? and because of Plaintiffs? delay in making the suggestions (?But this type of proposal should lead to meaningful conversations during discovery, not at the end of it.?; ?To attempt to begin negotiations about discovery at the end of the discovery period demonstrates at best a lack of diligence and at worst a lack of respect for the Court?s scheduling order.)

Nature of Case: Class action

Electronic Data Involved: Database, email

Moore v. Lowe?s Home Centers, LLC, No. 2:14-cv-01459 RJB, 2016 WL 3458353 (W.D. Wash. June 24, 2016)

Dec 01 2016

Key Insight: No sanctions imposed for Defendant?s deletion of Plaintiff?s email in accordance with Defendant?s email retention policy following her termination where Plaintiff?s emails to HR and management ?did not raise ?potential claims? but rather raise Plaintiff?s concerns about workplace gossip and challenging relationships? and where other ?low-level employees? general awareness that Plaintiff was rumored to pursue litigation? did not result in a duty to preserve

Nature of Case: Employment litigation

Electronic Data Involved: Emails of departed/terminated employee

Delphi Commc?ns. Inc. v. Advanced Computing Techs. Inc., No. A15A1655, 2016 WL 1176998 (Ga. Ct. App. Mar. 28, 2016)

Dec 01 2016

Key Insight: Appellate court upheld trial court?s decision to strike defendants? answer and enter default judgment (as to one claim) as a spoliation sanction for Defendants? failure to preserve an image of their hard drives

Nature of Case: Claims against former employees and thier employer alleging copying of Plaintiff’s software products and solicitation of Plaintiff’s customers without consent

Electronic Data Involved: ESI

Garcia v. City of Farmington, No. Civ. 12-383 JCH/SCY, 2016 WL 7438045 (D. N.M. Jul. 5, 2016)

Dec 01 2016

Key Insight: Plaintiff created audio recordings during her employment with Defendant, transcribing some of them and later deleting recordings she felt to be insignificant. Plaintiff also claimed her computer ?crashed? in 2011 or 2012 and that caused her to lose material (this issue not raised at previous deposition). After the close of trial, Defendant filed a Renewed Motion for Adverse Spoliation Inference and to Strike Testimony. The court found Plaintiff had a duty to preserve because she made the recordings after she filed a grievance and EEOC charge. Plaintiff admitted that the deleted recordings did not ?capture unfair and discriminatory treatment of her,? which the court found to ?cure any prejudice Defendant may have suffered.? The court found that Plaintiff?s actions ?were intentional and more than merely negligent, but she did not act with a sinister intent,? and that Plaintiff did not understand she needed to preserve all the recordings. The court will consider Defendant?s evidence of Plaintiffs spoliation when it weighs the evidence presented at trial, but otherwise denied Defendant?s request to impose sanctions.

Nature of Case: Renewed Motion for Adverse Spoliation Inference and to Strike Testimony, on underlying case of discrimination and retaliation

Electronic Data Involved: Audio recordings

Archive - December 2016