Archive: July 2017

1
Court Compels Production of Documents Withheld as Nonresponsive, Orders Requesting Party to Bear Costs of Re-Review
2
“No Harm, No Foul”: Court Denies Motion for Spoliation Sanctions Pursuant to Rule 37(e)
3
The ABA Journal’s Web 100 – Nominate Your Favorites!
4
Lack of “Meaningful” Communication with Opposing Counsel, Client Results in “Overly Complex” and Burdensome Agreement; Partial Costs Shifted

Court Compels Production of Documents Withheld as Nonresponsive, Orders Requesting Party to Bear Costs of Re-Review

Nachurs Alpine Sols. Corp. v. Banks, No. 15-CV-4015-LTS, 2017 WL 2918979 (N.D. Iowa July 7, 2017)

In this case, Defendants identified a number of potentially responsive documents by conducting a search with court-approved terms. Upon review of those documents, many were withheld from production as nonresponsive.  When Plaintiff sought to compel production of additional documents it suspected were relevant, the court granted the request, but shifted the burden of reviewing the withheld documents to Plaintiff, including cost.

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“No Harm, No Foul”: Court Denies Motion for Spoliation Sanctions Pursuant to Rule 37(e)

Snider v. Danfoss, LLC, 15 CV 4748, 2017 WL 2973464 (N.D. Ill. July 12, 2017)

In this case, the court addressed Plaintiff’s request for sanctions for Defendant’s failure to preserve emails and, concluding the information did “not appear to be relevant” and that Plaintiff was not prejudiced, denied Plaintiff’s motion for sanctions:

Federal Rule of Civil Procedure 37(e) incorporates the long-standing legal principle embodied in the phrase used on basketball courts everyday across the country: “No harm; no foul.” Under the particular facts of this case, Defendant’s admitted and erroneous destruction of electronically stored information (ESI), which does not appear to be relevant, has not prejudiced Plaintiff. Accordingly, sanctions are not warranted under Rule 37(e).

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The ABA Journal’s Web 100 – Nominate Your Favorites!

Dear Readers,

It is our pleasure to provide you with regular summaries of important and interesting e-Discovery opinions and other e-Discovery resources. We hope you enjoy them.  If you do, please consider nominating us for the ABA Journal’s Web 100 – a celebration of the “best of the legal industry on the web.”  Nominations are due no later than 11:50 p.m. CT on Sunday, July 30, 2017 and can be made by filling out the nomination form, available here.

Thanks for your interest in our blog!

Sincerely,

The K&L Gates Electronic Discovery Law Blog Team

Lack of “Meaningful” Communication with Opposing Counsel, Client Results in “Overly Complex” and Burdensome Agreement; Partial Costs Shifted

Bailey v. Brookdale Univ. Hosp. Med. Ctr., No. C 16-2195(ADS)(AKT), 2017 WL 2616957 (E.D.N.Y. June 16, 2017)

In this single-plaintiff employment litigation, Plaintiff claimed that the cost of production, equaling approximately $2,000-$3,000, was unduly burdensome in light of his personal financial situation, despite the existence of an ESI agreement between the parties, “so-ordered” by the court. Ultimately, the court concluded that although the data was not inaccessible, cost-shifting was appropriate because it appeared that the agreement proposed by the defendants was of a type “typically utilized in a more complex litigation involving multiple parties and corporate entities” and, more notably, because it appeared that Plaintiff’s counsel had not engaged in a “meaningful meet-and-confer session with opposing counsel concerning t[he] Agreement” or thoroughly reviewed the Agreement prior to signing it.  In addition to failing to properly confer with opposing counsel, the court concluded that “Plaintiff’s counsel did not engage in meaningful discussions with his client regarding the terms of the proposed agreement and what costs might be incurred . . . .”  Thus, absent any indication that Defendants would consider an alternative and less expensive form of production, the court ordered 40% of production costs shifted to Defendants and indicated that “fairness dictate[d]” that Plaintiff’s remaining costs “should be borne by Plaintiff’s counsel rather than Plaintiff himself.”

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