eDiscovery Import – Page 59 – Electronic Discovery Law

Simms v. Deggeller Attractions, Inc., 2013 WL 49756 (W.D. Va. Jan. 2, 2013)

Dec 01 2013

Key Insight: In action arising from roller coaster accident, court denied motion to impose sanctions for failure to preserve potentially relevant photographs on roller coaster?s ?integrated photography system,? where there was no evidence presented explaining how long the photos were stored in the system (although Defendant ?appear[ed] to argue? that had been erased as early as two days after the accident) where there was no evidence of willful conduct, and where the prejudice was limited based on the availability of other evidence regarding whether other riders were wearing hats on the ride?an important question in the case

Nature of Case: Personal Injury (roller coaster accident)

Electronic Data Involved: Photographs

Neustar, Inc. v. F5 Networks, Inc., No. C 12-02574 EJD, 2013 WL 1755489 (N.D. Cal. Apr. 24, 2013)

Dec 01 2013

Key Insight: In dispute over search terms and the appropriate date range for discovery, court cited Defendant?s declarations showing that Plaintiffs? proposed terms would result in a far greater volume of ESI to be reviewed and would triple the costs of production and found ?no reason? not to use Defendant?s proposed terms and reasoned that ?no search is ever perfect,? but that Defendant?s terms would ?likely yield sufficient documents?; date range was restricted to time period of the date of the contract to the present rather than Plaintiffs? proposal to begin two years before the agreement was formed

Nature of Case: Breach of licensing agreement

Electronic Data Involved: ESI

Gilley v. Eli Lilly & Co., No. 3:10-CV-251, 2013 WL 1701066 (E.D. Tenn. Apr. 2, 2013)

Dec 01 2013

Key Insight: Where plaintiff failed to preserve digital images which she claimed she took with her cell phone and her daughter?s cell phone and which she claimed to have received from her daughter via email and later forwarded to her attorney (resulting in several electronic copies of the image(s)), the court found that plaintiff had the obligation to preserve the evidence, that she knew or should have known that the images were relevant, that the images and metadata were in fact relevant, and that sanctions were appropriate and thus imposed a permissive adverse inference

Nature of Case: wrongful termination

Electronic Data Involved: Digital images

Warner v. Chilcott Labs. Ireland Ltd. v. Ipax Labs., Inc., Nos. 08-6304 (WJM), 09-2073(WJM), 09-1233(WJM), 2013 WL 1716468 (D.N.J. Apr. 18, 2013)

Dec 01 2013

Key Insight: Where defendant sought ?the cost of file conversion, Bates labeling, and storing electronic documents produced during litigation,? the clerk taxed only the ?cost of TIFF conversion . . . and the costs of making copies of original dvd?s and the original CD?

Nature of Case: Patent infringement

Electronic Data Involved: ESI Taxable costs

Athome Care, Inc. v. The Evangelical Lutheran Good Samaritan Soc?y, No. 1:12-cv-053-BLW, 2013 WL 1819691 (D. Idaho Apr. 30, 2013)

Dec 01 2013

Key Insight: Court addressed Plaintiff?s motion to compel production of metadata and, noting that Defendant ?would have produced the requested metadata but for an inadvertent change to the creation date on certain documents,? indicated that the real question was ?how to resolve that mistake, which essentially requires the court to apply the Rule 26(b)(2)(C) balancing test;? court considered fact that Defendant ?created the problem? although not in bad faith (?accidents happen?) and further found that the burden of production was not ?all that great? and ordered the production of the requested metadata

Nature of Case: Breach of contract/licensing agreement

Electronic Data Involved: metadata

United States ex rel DeKort v. Integrated Coast Guard Sys. LLC, No. 3:06-cv-1792-0 (BF), 2013 WL 1890283 (N.D. Tex. Mar. 27, 2013)

Dec 01 2013

Key Insight: Noting that ?courts have allowed parties to recover the costs of converting paper documents into electronic files where responsive discovery documents were produced in electronic format,? the court found that defendants could recover $68,829.60 and $24,102.39 respectively ?for creating electronic images of documents responsive to Relator?s discovery requests?

Nature of Case: False Claims Act

Electronic Data Involved: Taxable costs for ediscovery

Mazza v. Quicken Loans, Inc., No. 1:12 CV 142, 2013 WL 2296657 (N.D. W. Va. May 24, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought relevant information but failed to sufficiently limit the scope of her requests temporally or geographically, court agreed with defendant that the requests as written were overly broad but found that defendant had not made a sufficient showing that the burden of responding to modified, limited requests would outweigh the benefit or that cost shifting was required and thus ordered defendants to respond to the requests, subject to the courts temporal, geographic, and fact-specific limitations

Nature of Case: Predatory lending

Electronic Data Involved: ESI

Research Found. of State Univ. of N.Y. v. Nektar Therapeutics, No. 1:09-cv-1292 (GLS/CFH0, 2013 WL 2145652 (N.D.N.Y. May 15, 2013)

Dec 01 2013

Key Insight: Court denied defendant?s motion for an adverse inference and monetary sanctions related to its allegations of spoliation where the court ?did not agree? that plaintiff was ?grossly negligent? noting that plaintiff ?had in place ? a comprehensive standard document preservation policy, issued both verbal and written litigation hold notices, preserved backup tapes of emails from before commencement, and confirmed that no custodian had deleted any documents related to this matter? and where, the court determined that ?[w]hile there may have been some shortcomings in [plaintiff?s] document retention protocol, it was, at most, negligent? and that the ?discretionary presumption articulated in Residential Funding Corp [306 F.3d 99] d[id] not apply in any event?; court further declared that the spoliation motion failed ?on the ?inability [of Nektar] to adduce evidence suggesting the existence, let alone destruction , of relevant documents.?

Nature of Case: Breach of contract and related claims

Electronic Data Involved: ESI

Doe v. City of San Diego, No. 12-cv-0689-MMA (DHB), 2013 WL 2338713 (S.D. Cal. May 28, 2013)

Dec 01 2013

Key Insight: Court found plaintiff had standing to challenge city?s subpoena to Verizon Wireless seeking ?any and all records? for Plaintiff?s cellular phone, including texts, instant messages, etc. and found that Verizon was prohibited from disclosing such content by the Federal Stored Communications Act; Verizon was also prohibited from disclosing non-content records where such disclosure to a ?governmental agency? is prohibited; court noted that alternative methods for discovery were available and specifically noted the availability of a Rule 34 request for production

Nature of Case: Claims arising from sexual assault

Electronic Data Involved: Cellular phone records, including content

Momentive Specialty Chems., Inc. v. Alexander, No. 2:13-cv-275, 2013 WL 2151477 (S.D. Ohio May 16, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought to discover whether flash drives containing its sensitive information had been accessed by defendant since he started working for his new employer and also sought production of all relevant information contained on defendant?s laptop, the court indicated that Plaintiff?s expert would be allowed to image and search defendant?s laptop to determine if the flash drives had been accessed and to produce to Plaintiff any ?actual files? from those drives determined to be on defendant?s computer without first allowing defendant to conduct a review for relevance or privilege; as to other relevant documents found on the laptop which were not taken from the at-issue flash drives, the court ordered that any keyword hits be provided to defendant to review before production; to assuage concerns that relevant information would be withheld, court ordered defendant to prepare a log of any documents withheld on relevance grounds to allow the parties to have ?reasoned discussions? regarding those withholdings

Nature of Case: Breach of non-compete agreement, misappropriation of proprietary information

Electronic Data Involved: ESI

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