Archive: December 2017

1
Blasi v. United Debt Servs. LLC, No. 2:14-cv-83, 2017 WL 2255525 (S.D. Ohio May 23, 2017)
2
TetraVue, Inc. v. St. Paul Fire & Marine Ins. Co., No. 14cv2021-W (BLM), 2017 WL 1008788 (S.D. Cal. Mar. 15, 2017)
3
Duffy v. Lawrence Mem?l Hosp., No. 2:14-v-2256-SAC-TJJ, 2017 WL 1277808 (D. Kan. Mar. 31, 2017)
4
Kirk v. Invesco, Ltd., No. H-15-833, 2017 WL 1078763 (S.D. Tex. Mar. 22, 2017)
5
Houston v. Coveny, No. 14-cv-6609, 2017 WL 972124 (W.D.N.Y. Mar. 13, 2017)
6
Am. Auto. Ins. Co. v. Hawaii Nut & Bolt, Inc., No. 15-00245 ACK-KSC, 2017 WL 80248 (D. Hawai?I Jan. 9, 2017)
7
Singh v. Hancock Nat. Res. Grp., Inc., No. 1:15-cv-01435-LJO-JLT, 2017 WL 710571 (E.D. Cal. Feb. 22, 2017)
8
Air Prods. & Chems., Inc v. Wiesemann, No. 14-1425-SLR, 2017 WL 758417 (D. Del. Feb. 2, 2017)
9
Wilson v. Washington, No. C16-5366 BHS, 2017 WL 518615 (W.D. Wash. Feb. 8, 2017)
10
Brown v. Ferguson, No. 4:15CV00831 ERW, 2017 WL 386544 (E.D. Mo. Jan. 27, 2017)

Blasi v. United Debt Servs. LLC, No. 2:14-cv-83, 2017 WL 2255525 (S.D. Ohio May 23, 2017)

Key Insight: For a defendant?s spoliation and failure to participate in litigation, the court struck the defendant?s motion to dismiss for lack of personal jurisdiction and eventually also awarded default judgment and attorneys fees to the plaintiff; addressing whether to also sanction Defendant?s counsel for failing to prevent the spoliation, the court reasoned that ?it seems obvious that the party requesting sanctions has at least an initial burden of proof with respect to not only whether sanctionable conduct has occurred, but also with respect to whether the misbehaving party?s attorney may have been involved? and found Plaintiff?s assertions and evidence of such involvement ?too thin?

Electronic Data Involved: ESI

TetraVue, Inc. v. St. Paul Fire & Marine Ins. Co., No. 14cv2021-W (BLM), 2017 WL 1008788 (S.D. Cal. Mar. 15, 2017)

Key Insight: Defendant moved to compel Plaintiff to produce additional documents, supplement discovery responses, and remove non-responsive documents from their production. Plaintiff had not been able to obtain the entire underlying action file from former counsel, and argued they do not have actual control over the documents. The court found Plaintiffs did have ?possession, custody or control? of the file under Fed. R. Civ. P. 34 (even though counsel had not been cooperative in turning the materials over) and granted Defendant?s motion to compel production of additional non-privileged and responsive documents. Plaintiffs were ordered to obtain the file and provide supplemental responses to Defendant?s RFPs. Defendant asserted Plaintiff?s previous production was a ?data dump? without an index (and contained numerous non-responsive documents), and did not comply with Fed. R. Civ. P. 34. Plaintiffs contended that Defendant did not request a specific format and that they complied with the discovery order and produced their ESI in a proper format (PDF). Plaintiffs also claimed that Defendant?s request to have Plaintiff organize their production based on RFPs would be disproportionate – the production was in date order, allowing Defendant to ?organize, index and search the data at a low cost and with little effort.? The court agreed, finding the production adequate and cited the advisory committee?s notes for Fed. R. Civ. P. 34 (?contemplated that the parties requesting ESI would be able to organize it themselves?). Finally, the court denied Defendant?s motion for supplemented interrogatory responses, finding the Plaintiffs? responses adequate (the burden of finding the answer would be ?substantially the same for either party?).

Electronic Data Involved: ESI

Duffy v. Lawrence Mem?l Hosp., No. 2:14-v-2256-SAC-TJJ, 2017 WL 1277808 (D. Kan. Mar. 31, 2017)

Key Insight: Despite previously ordering production of ESI, court considered motion for protective order by defendant after the ?enormity of the task became apparent? and granted the motion in light of defendant?s presentation of evidence showing that responding to the at-issue requests would take 8,982 hours of work at a cost of $230,000, if accomplished by contract staff; court indicated that it found ?merit? in Defendant?s proposal to provide a random sample of the at-issue information ?from a standpoint of accuracy,? reasoning that ?human error would be a realistic factor? if Defendant were to employ contract workers to conduct a manual review of all of the records under time constraints

Electronic Data Involved: Electronic hospital records

Houston v. Coveny, No. 14-cv-6609, 2017 WL 972124 (W.D.N.Y. Mar. 13, 2017)

Key Insight: Court granted motion for preservation order as to relevant audio and video recordings reasoning that a court ?may grant a preservation order if a party can demonstrate that the evidence is in some danger of being destroyed absent court intervention? and that in light of the Department of Corrections and Community Supervision retention policy such an order was appropriate to ensure preservation through the pendency of the case

Electronic Data Involved: Audio and video recordings

Singh v. Hancock Nat. Res. Grp., Inc., No. 1:15-cv-01435-LJO-JLT, 2017 WL 710571 (E.D. Cal. Feb. 22, 2017)

Key Insight: Court recommended terminating sanctions for Plaintiffs? discovery violations, including failing to produce documents with metadata, as ordered, and failing to provide an explanation; failing to produce other documents as ordered, including a more legible version of a spreadsheet that Plaintiffs created; and falsifying discovery, but declined to recommend additional monetary sanctions

Electronic Data Involved: ESI

Air Prods. & Chems., Inc v. Wiesemann, No. 14-1425-SLR, 2017 WL 758417 (D. Del. Feb. 2, 2017)

Key Insight: Court denied motion for spoliation sanctions where Defendants ?failed to clear the threshold issue of showing that relevant evidence was lost or destroyed? or, in the case of the alleged spoliation of ESI of one former employee, where defendants failed to show that the emails could not be replaced through additional discovery in light of the production of some of the employee?s emails from other computers

Electronic Data Involved: ESI

Wilson v. Washington, No. C16-5366 BHS, 2017 WL 518615 (W.D. Wash. Feb. 8, 2017)

Key Insight: Addressing Plaintiff?s concerns regarding Defendants production, characterized by the court as ?thousands of pages of unorganized documents,? the court reasoned that ?Rule 33(d) does not supplant a party?s duty to adequately label and identify responsive documents under Rule 34,? that courts have recognized that production of documents as kept in the usual course of business ?may require the producing party to include different identifying information according to the type of document or file produced,? and that ?the most recent? court decisions have held that both Rule 34(b)(2)(E)(i) and (ii) apply to the production of ESI and concluded that Defendant?s response fell short of its duties under 34(b)(2)(E) and 33(d)(1) and stated that ?[s]ome form of further organization or specification is required to signify that they have provided ?rationally organized productions??

Electronic Data Involved: Unorganized ESI

Brown v. Ferguson, No. 4:15CV00831 ERW, 2017 WL 386544 (E.D. Mo. Jan. 27, 2017)

Key Insight: Court clarified discoverability of relevant social media content but indicated that disclosure of passwords was not required and not permitted by the Federal Rules of Civil Procedure

Electronic Data Involved: Social Media/social network (Facebook, etc.)

View Case Opinion

Copyright © 2022, K&L Gates LLP. All Rights Reserved.