Archive: August 2018

1
Oprex Surgery (Baytown), L.P. v. Sonic Automotive Employee Welfare Benefit Plan (5th Cir., 2018)
2
Small v. Univ. Med. Ctr., No. 2:13-cv-0298-APG-PAL (D. Nev. Aug. 9, 2018)
3
LaFerrera v. Camping World RV Sales of Birmingham (Eastern District of Texas, 2018)
4
Beck v. Access E Forms, LP. (Eastern District of Texas, 2018)
5
City of Rockford, et al. v. Mallinckrodt ARD Inc., et al. (Northern District of Illinois, 2018)
6
Sines v. Kessler, No, 3:18-mc-80080-JCS (N.D. Cal. Aug. 6, 2018)
7
Murphy v. Piper, No. 16-2623 (DWF/BRT) (D. Minn. Aug. 6, 2018)
8
In re: Application of Biomet Orthopaedics Switzerland GMBH Under 28 U.S.C. 1782 For An Order to Take Discovery for Use In A Foreign Proceeding, No, 17-3787 (3rd Cir. Aug. 6, 2018).
9
Halleen v. Belk, Inc., No. 4:16-CV-55 (E.D. Tex. Aug. 6, 2018)
10
San Diego Unified Port Dist. v. Monsanto Co., No. 15-cv-0578 (S.D. Cal. Aug. 2, 2018)

Oprex Surgery (Baytown), L.P. v. Sonic Automotive Employee Welfare Benefit Plan (5th Cir., 2018)

Key Insight: How far does court’s discretion on discovery sanctions extend when it comes to dismissing a suit with prejudice?

Nature of Case: Employee medical benefits litigation

Keywords: Discovery sanctions, dismissal, Failure to comply, dismissal with prejudice

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Small v. Univ. Med. Ctr., No. 2:13-cv-0298-APG-PAL (D. Nev. Aug. 9, 2018)

Key Insight: Defendant’s failure to preserve and produce ESI responsive to plantiffs’ discovery requests.

Nature of Case: unpaid wages and overtime claims collective action

Electronic Data Involved: deleted electronic records, undecipherable codes, mobile device data, text messages

Keywords: adverse inference instruction, unintelligible, mockery of the orderly administration of justice

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LaFerrera v. Camping World RV Sales of Birmingham (Eastern District of Texas, 2018)

Key Insight: Spoliation claims should be brought up during discovery as a motion to compel, not summary judgment, spoliation also requires an intent to deprive

Nature of Case: Product defect

Electronic Data Involved: Electronic car records

Keywords: spoliation, summary judgment, camping world, motor home

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Beck v. Access E Forms, LP. (Eastern District of Texas, 2018)

Key Insight: A 16 minute speculative phone call to an attorney is not enough to create a duty to preserve, direct evidence of bad faith is also necessary

Nature of Case: Employee overtime wages

Electronic Data Involved: Deleted e-mails

Keywords: Spoliation, FLSA, overtime

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City of Rockford, et al. v. Mallinckrodt ARD Inc., et al. (Northern District of Illinois, 2018)

Key Insight: Sampling the null set is appropriate and proportional

Nature of Case: Antitrust

Electronic Data Involved: Electronically stored documents generally

Keywords: prescription medication, Acthar, clowns, TAR,

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Sines v. Kessler, No, 3:18-mc-80080-JCS (N.D. Cal. Aug. 6, 2018)

Key Insight: Discoverability of the identity and communications of users of anonymous messaging services.

Nature of Case: Suit against supporters of “Unite the Right” rally

Electronic Data Involved: anonymous communications, anonymous user account info, Discord records

Keywords: anonymous communications, stored communications act, first amendment rights, Discord, third party subpoenas

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Murphy v. Piper, No. 16-2623 (DWF/BRT) (D. Minn. Aug. 6, 2018)

Key Insight: Production of nearly 170 thousand documents containing almost 2.6 million pages (app. 72% of total production) weeks before depositions to start was not sanctionable as Plaintiff had fought to keep broad discovery requests.

Nature of Case: Inadequate and Substandard Care in State Facilities

Electronic Data Involved: Email and Documents

Keywords: Proportionality; Document “Dump”

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In re: Application of Biomet Orthopaedics Switzerland GMBH Under 28 U.S.C. 1782 For An Order to Take Discovery for Use In A Foreign Proceeding, No, 17-3787 (3rd Cir. Aug. 6, 2018).

Key Insight: Trial Court had denied request for documents. Third Circuit remanded for further review based off four-factor discretionary test after finding that it met the basic statutory requirements to be considered.

Nature of Case: Trade Secret

Electronic Data Involved: Documents in US, desired for foreign matter

Keywords: foreign proceeding.

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Halleen v. Belk, Inc., No. 4:16-CV-55 (E.D. Tex. Aug. 6, 2018)

Key Insight: Compelling Defendant to produce ESI prior to parties reaching an impasse

Nature of Case: Fair Labor Standards Act (FLSA) collective action

Electronic Data Involved: all ESI germane to identified corporate custodians and 30(b)(6) corporate representatives, share drive content

Keywords: impasse, corporate custodian, 30(b)(6) witness, inability to cooperate, randomized, share drive

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San Diego Unified Port Dist. v. Monsanto Co., No. 15-cv-0578 (S.D. Cal. Aug. 2, 2018)

Key Insight: temporal limitations on document discovery

Nature of Case: abatement and remediation of pollution

Electronic Data Involved: electronic records

Keywords: temporal scope, temporal limitations, relevant time period, work-product protection, 30(b)(6) notices

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