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United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, 2015 WL 5056726 (D. Nev. Aug. 25, 2015)
In this case, the court addressed Defendants’ claim that emails stored on backup tapes were not reasonably accessible because of undue burden and cost. Reasoning that “[a]t bottom there will be a burden or a cost, but not both,” the court found that Defendants failed to show undue burden because of their stated intention to rely on a third party vendor, thus reducing the burden of in-house production by adding some cost and that, after disallowing consideration of the cost of document review and storage, the estimated $136,000 for restoration was not sufficient to render the emails inaccessible. In so finding, the court reasoned that Defendants must bear some responsibility for the consequences of the decision to use an “archival/backup solution that did not maintain ESI in an indexed or otherwise searchable manner.” The court also found good cause to compel production and that cost shifting was not warranted.
New Orleans Reg’l Physician Hosp. Org., Inc. v. United States, —Fed. Cl.—, 2015 WL 5000512 (Fed. Cl. Aug. 21, 2015)
In this breach of contract case, Plaintiff sought an order requiring Defendant to “redo its searches for responsive documents according to parameters to be agreed upon by the parties” after it began to suspect that Defendant’s search for responsive materials was insufficient. The court found that Defendant “did not put into place a systematic, reliable plan to find and produce all relevant documents in this case” and indicated that the record did not “allow the court to conclude that a thorough and reliable search was conducted.” Accordingly, the court ordered the parties to work together to identify a list of custodians, search protocols and search terms to be utilized by the defendant and required the defendant to maintain a careful record of its search efforts and to produce any responsive documents.
Procaps S.A. v. Patheon Inc., No. 12-24356-CIV-GOODMAN, 2015 WL 4430955 (S.D. Fla. July 20, 2015)
In this case, the court addressed Plaintiff’s designation of 95% of its forensically produced documents as “highly confidential” and, upon Defendant’s motion to compel Plaintiff to re-review and re-designate those documents, ordered that Defendant would be allowed to use all documents, regardless of their initial designation, unless the document was re-designated by the plaintiff in good faith within the short timeframe allowed by the court. The court also ordered Plaintiff’s counsel to pay $25,000 in attorney’s fees.
Wandering Dago, Inc. v. N.Y. State Office of Gen. Servs., No. 1:13-CV-1053 (MAD/RFT), 2015 WL 3453321 (N.D.N.Y. May 29, 2015)
In this case, the court addressed “whether officials in one governmental agency and their Attorney can be sanctioned for the destruction of email(s), belonging to yet another governmental agency, via the New York State’s Email Retention Policy. Essentially, would such an occurrence constitute spoliation of evidence, and, if so, are sanctions warranted?” The court found the answer was “no.”
Formal Opinion No. 2015-193 addresses the question: “What are an attorney’s ethical duties in the handling of discovery of electronically stored information?”
The opinion summarizes the answer as follows:
An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.
To read the full opinion, click here.
Burd v. Ford Motor Co., No. 3:13-cv-20976, 2015 WL 4137915 (S.D. W. Va. July 8, 2015)
In this case, Defendant sought to quash Plaintiffs’ notice of deposition and entry of a protective order precluding Plaintiffs from deposing Defendant’s representative regarding Defendant’s document retention policies and practices and specific methodologies for identifying relevant information in the present case, including Defendant’s admitted reliance on custodian “self-selection.” Citing Plaintiffs’ concerns regarding the sufficiency of Defendant’s discovery efforts and Defendant’s refusal to cooperate and/or to disclose the search terms utilized by its custodians in their search efforts, the court denied Defendant’s requests for protection and ordered the defendant to produce a Rule 30(b)(6) witness to testify regarding “its document retention and destruction polices, and to supply details regarding the document search performed by [Defendant] to date.”
Presenters: Desiree F. Moore, Daniel R. Miller, Ivan L. Ascott, & Bree Kelly
On July 16, 2015, a panel of attorneys from K&L Gates presented a webinar discussion addressing the discoverability and admissibility of social media content. Topics discussed included:
To download the presentation slides or to view and listen to the webinar, click here.
Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, No. 13-cv-1168-EFM-TJJ, 2015 WL 3937410 (D. Kan. June 26, 2015)
In this case the court addressed Defendants’ motion to compel and Plaintiff’s objection to discovery based on proportionality. Concluding that Plaintiff failed to adequately establish the alleged burden of the requested discovery, the court granted the motion to compel.
United States v. Lizarraga-Tirado, —F.3d—, 2015 WL 3772772 (9th Cir. June 18, 2015)
“Are a Google Earth satellite image and a digital ‘tack’ labeled with GPS coordinates hearsay?” In this case, the Ninth Circuit answered “no.”
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