Author - kgates

In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016)

In this opinion, the District Court considered Defendants’ proposal to redact or withhold certain irrelevant information from responsive documents and document families. In approving the proposal, the court cited Chief Justice John Roberts’ recent comments that recently amended Federal Rule of Civil Procedure 26 “crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” Reasoning that such comments “highlight” that “a party is not entitled to receive every piece of relevant information,” the court concluded that “it [was] only logical” that “a party is similarly not entitled to received every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld.”

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Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (Ch)

On February 2, 2016 an English court approved the use of predictive coding for the first time. Thereafter, it issued an opinion explaining the reasons for approval, relying in part upon the well-known Da Silva Moore case, which was the first to approve the use of predictive coding in American litigation.

Following extensive discussion of the issue, including acknowledging the parties’ agreement to utilize predictive coding in this case, the court laid out the factors it considered in favor of approving the use of predictive coding, noting “there were no factors of any weight pointing in the opposite direction”:

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Gardner v. Continental Cas. Co., 3:13 CV 1918 (JBA), 2016 WL 155002 (D. Conn. Jan. 1, 2016)

Plaintiffs sought to compel production of all 38,000 documents hit by agreed-upon search terms.  Following review for relevance and privilege, Defendant produced only 2,214 pages “of which 274 pages consisted of copies of the complaints, with exhibits, filed in this lawsuit.” The court declined to compel the production of all search hits, but acknowledged concerns regarding Defendant’s production based on documents produced by a third party.  Accordingly, the court ordered the parties to confer regarding variations of “sampling and iterative refinement” or “a quick peek protocol” of the documents hit by search terms and also indicated willingness to consider appointment of a Special Master to conduct a review of the documents at the expense of the parties.

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Nuvasive, Inc. v. Madsen Med. Inc., No. 13cv2077 BTM(RBB), 2016 WL 305096 (S.D. Cal. Jan. 26, 2016)

In this case, the court granted Plaintiff’s motion to reconsider a prior order imposing an adverse inference for Plaintiff’s failure to preserve text messages, in light of new standards imposed under recently amended Federal Rule of Civil Procedure 37(e).

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CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (AT) (JCF), 2016 WL 154116 (S.D.N.Y. Jan. 12, 2016)

In this case, which raised “significant issues concerning the reach of newly amended Rule 37(e) of the Federal Rules of Civil Procedure, the standard of proof governing spoliation, and the relief appropriate for the destruction of electronically stored information,” Magistrate Judge James C. Francis IV addressed Plaintiffs’ intentional alteration of relevant emails, as evidenced by the discovery of the original emails “which had been deleted, albeit not without leaving a digital imprint.” Finding that newly amended Rule 37 applied and that remedies were available pursuant to both subsections (e)(1) and (e)(2), the Magistrate Judge noted that “drastic sanctions are not mandatory” and ordered that Plaintiffs were precluded from relying on “their version” of the emails to demonstrate notice to Defendants of the use of the at-issue mark and that Plaintiffs would bear the “costs, including reasonable attorney’s fees, incurred by the defendants in establishing the plaintiffs’ misconduct and in securing relief.”

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Matthew Enter., Inc. v. Chrysler Grp., LLC, No. 13-cv-04236-BLF, 2015 WL 8482256 (N.D. Cal. Dec. 10, 2015)

In this case, the court declined to compel production from Plaintiff’s employees’ personal email accounts because Plaintiff did not have control of the emails for purposes of discovery.  As to the contents of Plaintiff’s “customer communications database” maintained by a third party vendor, however, the court found that Plaintiff did have control of the ESI, as evidenced by the prior production of certain data at Plaintiff’s request.

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United States v. Vaughn, No. 14-23 (JLL), 2015 WL 6948577 (D.N.J. Nov. 10, 2015)

In this criminal case, a pro se defendant sought sanctions, including dismissal of the indictment, for the Government’s failure to preserve text messages relevant to its investigation.  Upon examination of the facts, including the Government’s acknowledged failure to preserve certain text messages and constantly changing explanations surrounding that failure as well as the “different level of diligence” applied to different text messages (care was taken to preserve certain messages, but not others), the court determined sanctions were warranted.  Accordingly, the court ordered that the Government would be precluded from using any text messages in its case-in-chief and reserved judgment until trial regarding the propriety of an adverse inference instruction.

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