eDiscovery Import – Page 31 – Electronic Discovery Law

S.E.C. v. Blackburn, No. 15-2451-CJB-SS, 2015 WL 10911438 (E.D. La. Oct. 26, 2015)

Dec 01 2015

Key Insight: No waiver of privilege resulting from inadvertent production (as a result of legal assistant?s accidental attachment of the wrong email folder when preparing initial disclosures) where steps to prevent disclosure were reasonable, including custodian?s specific identification of privileged material and trial attorney?s review of all non-privileged docs to be produced and where trial attorney immediately addressed inadvertent disclosure upon her discovery of it and return to her office

Electronic Data Involved: Email

Wal-Mart Stores, Inc. v. Cuker Interactive, LLC, NOo. 5:14-CV-5262, 2015 WL 11120890 (W.D. Ark. April 9, 2015)

Dec 01 2015

Key Insight: Where parties agreed to produce in native format but Defendant then loaded its information into a hosted database and indicated that Plaintiff could view the docs, including some metadata, but could only receive production of specified documents in a static image format, at a cost for each such ?exportation,? and where Defendant argued such production complied with Rule 26(f) and that the data was in a reasonably usable form, the court held the parties to their agreement, reasoning that ?[s]imply put, native format means native format? and also rejected Defendant?s security concerns, agreeing with Plaintiff that production on an external hard drive was acceptable; court?s order stated that parties would ?produce discovery from electronic or computer-based media directly to each other in native format, on external hard drives whenever possible.?

Electronic Data Involved: ESI

Unichappel Music, Inc. v. Modrock Prods., LLC, No. 14-2382-DDP (PLA), 2015 WL 12697738 (C.D. Cal. Aug. 28, 2015)

Dec 01 2015

Key Insight: Where responding party asserted that an at-issue request would require production of ?voluminous? irrelevant documents, that identification of the requested documents would require searching through thousands of clients files estimated to take ?one or more persons weeks to accomplish? or would cost between $8740 – $18350 if a vendor was retained to assist – not including attorney review, and that the information was available through alternative means, including depositions, the court concluded that the documents were ?at least minimally relevant? but that the burden of FULL production outweighed the benefit to the requesting party and ordered the responding party to utilize search terms or to hire a vendor to produce a more limited set of documents as prescribed by the court; court declined to shift the costs of the search , reasoning (in footnote) that ?[t]he mere fact that responding to a discovery request will require the objecting party ?to expend considerable time, effort and expense consulting, reviewing and analyzing ?huge volumes of documents and information? is an insufficient basis to object? to a relevant discovery request.?

Electronic Data Involved: ESI

Health Mgmt. Assocs., Inc. v. Salyer, No. 14-14337-CIV-ROSENBERG/LYNCH, 2015 WL 12778793 (S.D. Fla. Aug. 19, 2015)

Dec 01 2015

Key Insight: Court granted motion to compel forensic examination of Defendant?s ?personal computer devices and his personal email account? where Defendant claimed that his mobile phone was damaged, that a thumb drive was lost, and that his laptop stopped working, and where Defendant failed to search his email and gave inaccurate ?representations? about it; court admonished Plaintiff ?to give special care? to Defendant?s privacy and ordered that Defendant was allowed to be present for the search, and that the search criteria be prepared in advance and chosen to limit the scope to matters ?directly relevant to its claims for relief?

Electronic Data Involved: Forensic examination of computer, devices, email

Andra Grp. LP v. JDA Software Grp., Inc, No. 3:15-mc-11-K-BN, 2015 WL 12731762 (N.D. Tex. April 13, 2015)

Dec 01 2015

Key Insight: Magistrate Judge concluded that absent evidence of a special relationship or circumstance that imposed a duty to preserve evidence, a third party did not have an obligation to preserve evidence before it was served with a subpoena, even though it was aware of potential litigation against a party with whom it had a close working relationship. Where the non-party was ordered to search for and produce all responsive information but limited its search to its ShareFile and failed to adequately investigate whether responsive information existed on its computers and other devices, the Magistrate judge reasoned that compliance required more than ?simply asking current employees if they have responsive documents? and concluded that third party?s mere survey of current employees (omitting an employee with a difficult personality) as to whether they had responsive emails without an attempt to search or forensically image any devices in its custody failed to satisfy the Discovery Order?s request to make ?all reasonable efforts to search? for potentially relevant documents, violating Rule 45(g).

Electronic Data Involved: ESI

In re Actos (Pioglitazone) Products Liability Litig., MDL No. 6:11-md-2299

Dec 01 2014

Key Insight: Parties reached agreement regarding the use of predictive coding for the production of electronically stored information (order dated july 27, 2012)

Nature of Case: Products Liability

Electronic Data Involved: ESI

Domanus v. Lewicki, —F.3d—, 2014 WL 408723 (7th Cir. Feb. 4, 2014)

Dec 01 2014

Key Insight: Circuit court found no abuse of discretion for District Court?s imposition of default judgment (or its prior finding of contempt) – which was a more drastic sanction than was originally imposed by the magistrate judge – where Defendants? discovery behaviors, including failing to produce documents as ordered, avoiding depositions, and failing to preserve potentially relevant ESI (and providing conflicting stores about what happened to the hard drive, including that it had been taken apart and given to a defendant?s children to play with) justified the harsh sanction imposed

Nature of Case: Fraud

Electronic Data Involved: ESI on hard drive (emails), bank records

Jones v. Union Pac. R.R. Co., No. 12 C 771, 2014 WL 37843 (N.D. Ill. Jan. 6, 2014)

Dec 01 2014

Key Insight: Videotape of collision filmed from train was admissible, despite inability of defendant to produce the hard drive from which it originally was copied, where both eyewitness testimony which corroborated the footage and chain of custody evidence established its authenticity; no spoliation sanctions for reuse of hard drive where such reuse was a ?routine practice? for defendant and because plaintiff could not establish prejudice resulting from the loss of the hard drive (the video was available)

Nature of Case: Personal injury (train/car collision)

Electronic Data Involved: Original hard drive containing video footage

In re Actos (Pioglitazone) Prods. Liab. Litig., MDL No. 6:11-md-2299, 2014 WL 355995 (W.D. La. Jan. 30, 2014)

Dec 01 2014

Key Insight: Despite defendants? claims that litigation regarding claims of bladder cancer were not reasonably foreseeable until 2011, and thus the preservation obligation did not attach as to evidence related to those claims, the court found that the duty to preserve began in 2002, when defendants disseminated a broad and general litigation hold requiring the preservation of documents and ESI which ?discuss, mention, or relate to Actos? and that documents destroyed after that (including the files of 46 employees) were spoliated; court ordered that the jury would hear about the destruction and be instructed by the court on how to proceed (instruction would be crafted after hearing all the evidence)

Nature of Case: Products Liability

Electronic Data Involved: ESI (46 “custodial files”)

Castillon v. Corrections Corp. of Am., No. 1:12-cv-005590EJL, 2014 WL 517505 (D. Idaho Feb. 7, 2014)

Dec 01 2014

Key Insight: Where defendant produced data from timekeeping system in searchable .PDF format and provided attestation from the vice president of technology and chief information officer that that .PDF was the ?only, built-in, reasonably accessible data format? and that producing in the requested format would require Defendant to undertake the ?lengthy and daunting? task of writing a script and where Plaintiffs did not specify the format of production in their request, the court declined to compel re-production of the at-issue data, but noted that if Plaintiffs were willing to pay for the expense of writing a script, ?they may approach Defendant with such a request.?

Nature of Case: Prisoners’ civil rights

Electronic Data Involved: Data from timekeeping system

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