Archive: July 2017

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Court Compels Production of Documents Withheld as Nonresponsive, Orders Requesting Party to Bear Costs of Re-Review
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Mirmina v. Genpact LLC, No. 3:16-cv-00614-AWT (D. Conn. July 27, 2018)
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Alvarez v. King County (W.D. Wash., 2017)
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Creative Movement v. Pure Performance, No. 1:16-CV-3285-MHC, 2017 WL 4998649 (N.D. Ga. July 24, 2017)
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Lewis v. McLean (7th Circuit Court of Appeals, 2017)
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“No Harm, No Foul”: Court Denies Motion for Spoliation Sanctions Pursuant to Rule 37(e)
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Mueller v. Swift, No. 1:15-cv-01974-WJM-KLM (July 19, 2017)
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T.D.P. v. City of Oakland (Northern District California, San Francisco Division, 2017)
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Ariel Inv., LLC v. Ariel Capital Advisors LLC, No. 15 C 3717 (N.D. Ill., July 17, 2017)
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The ABA Journal’s Web 100 – Nominate Your Favorites!

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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Mirmina v. Genpact LLC, No. 3:16-cv-00614-AWT (D. Conn. July 27, 2018)

Key Insight: whether counsel assumed responsibility for ensuring a comprehensive search was conducted

Nature of Case: employment discrimination

Keywords: comprehensive search, litigation hold, guidance, reasonable inquiry

View Case Opinion

Alvarez v. King County (W.D. Wash., 2017)

Key Insight: A different office overwrote the recordings, and thus it would be unjust to punish defendant for something they did not do. Moreover, there was no notice, and the recordings were overwritten as a normal course of business.

Nature of Case: Excessive force, 4th/5th amendments

Electronic Data Involved: Recordings of radio calls

Keywords: Notice of duty to preserve, safe harbor, spoliation sanctions, intent to deprive, failure to act

View Case Opinion

Creative Movement v. Pure Performance, No. 1:16-CV-3285-MHC, 2017 WL 4998649 (N.D. Ga. July 24, 2017)

Key Insight: No spoliation because no showing that “either Defendants or their counsel acted” with an “intent to deprive” merely that there was “confusion and ineptitude.”

Nature of Case: breach of licensing agreement

Electronic Data Involved: business laptop and several external drives

Keywords: intent to deprive, spoliation, evaluate the reasonableness of preservation efforts.

View Case Opinion

Lewis v. McLean (7th Circuit Court of Appeals, 2017)

Key Insight: Court was troubled by lack of full video recording, especially how the only preserved parts were favorable to defendants, recommended recruited counsel on remand for additional depositions and to see if additional recordings exist

Nature of Case: Eighth Amendment

Electronic Data Involved: Security camera recording

Keywords: Cruel and unusual punishment, deliberate indifference, eighth amendment

View Case Opinion

“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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Mueller v. Swift, No. 1:15-cv-01974-WJM-KLM (July 19, 2017)

Key Insight: Sanction must be proportional to loss, loss was mitigated by testimony about the contents and other notes

Nature of Case: Tortious interference, assault, battery

Electronic Data Involved: Audio recording

Keywords: Taylor Swift, audio recording, KYGO, radio, meet and greet

View Case Opinion

T.D.P. v. City of Oakland (Northern District California, San Francisco Division, 2017)

Key Insight: Keyword searching alone may not be sufficient and can be aided by strategies like predictive coding

Nature of Case: civil rights, fourth amendment

Electronic Data Involved: text messages, social media posts

Keywords: keyword searching, predictive coding

View Case Opinion

Ariel Inv., LLC v. Ariel Capital Advisors LLC, No. 15 C 3717 (N.D. Ill., July 17, 2017)

Key Insight: Reimbursement of eDiscovery costs

Nature of Case: trademark infringement, unfair competition, cybersquatting

Electronic Data Involved: documents copied and coverted into a readable format

Keywords: Reimbursement, making copies, converted, copied, native, proportionality, taxable

View Case Opinion

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

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