eDiscovery Import – Page 69 – Electronic Discovery Law

Peerless Indus., Inc. v. Crimson AV LLC, No. 11 C 1768, 2013 WL 1195829 (N.D. Ill. Mar. 22, 2013)

Dec 01 2013

Key Insight: District court evaluated and overruled each of defendants’ objections to various discovery rulings of magistrate judge, applying a “clearly erroneous” standard of review; among other things, district court found that magistrate judge did not err in ruling that defendants’ production of ESI was insufficient in that it lacked all of the required metadata, e.g., author information, information about whether the file was stored, and revision histories for computer-aided designs

Nature of Case: Claimis for patent infringement and design patent infringement arising out of defendants’ manufacture and sale of certain TV mounts

Electronic Data Involved: ESI

Cotton v. Costco Wholesale Corp., No. 12-2731-JW, 2013 WL 3819974 (D. Kan. July 24, 2013)

Dec 01 2013

Key Insight: Addressing Plaintiff?s motion to compel, court declined to compel Defendant to search the email accounts of four Costco employees and to produce any messages containing any of sixty-four search terms where many of the terms were not ?racially charged? and some were duplicative and where, save two of the terms, Plaintiff had not alleged that the terms were ever used by any of Costco?s employees; court denied motion to compel production of text messages sent from certain of Costco?s employees? personal cell phones where the court reasoned that Costco had not issued the phones to the employees for a work purpose and did not have ?possession, custody or control? of the text messages

Nature of Case: Employment discrimination based on race

Electronic Data Involved: Emails, text messages on employees’ personal cell phones

You Fit, Inc. v. Pleasanton Fitness LLC, No. 8:12-CV-1917-T-27EAJ, 2013 WL 521784 (M.D. Fla. Feb. 11, 2013)

Dec 01 2013

Key Insight: Addressing request for preliminary injunction in trademark infringement action, court considered Yelp posting stating a customer?s confusion and found that consideration of the comment was appropriate in the context of an injunctive proceeding and also indicated in footnote that ?the comments are not hearsay because they are not being used to prove the truth of the matter asserted in the comment. See Fed.R.Evid. 801(c)(2). Rather, Plaintiffs invoke the comments to demonstrate the consumer?s confusion, a then-existing mental state of the declarant who posted the comments See Fed.R.Evid. 803(3).?

Nature of Case: Copyright infringement

Electronic Data Involved: Social media content (e.g., Yelp review)

Lifetouch Nat?l School Studios, Inc. v. Moss-Williams, No. C10-05297, 2013 WL 11235928 (N.D. Cal. Oct. 15, 2013)

Dec 01 2013

Key Insight: Where a former employee (defendant) admitted prior possession of a thumb drive containing Plaintiff?s data (her prior employer) and that she had connected the thumb drive to her new employer?s computers (who is also a defendant) but where she claimed that she had not transferred any of Plaintiff?s information, that she could not recall the computer she connected to, and that she destroyed the drive before her duty to preserve arose, court reasoned that there was a ?sufficient nexus between the defendant?s computers and the alleged misappropriation of trade secrets to warrant forensic imaging of the computers? (over 60 in number) but, applying the cost-shifting analysis from Zubulake v. UBS Warburg LLC 217 FRD 309 (SDNY 2003), found that in light of the ?broad scope of the request, the cost of production, the resource disparity of the parties? and defendant?s repeated assertion that the information did not exist, cost shifting was appropriate; court indicated it ?may reconsider? cost allocation if the expert determined that information from the thumb drive was transferred to defendant?s computer

Nature of Case: Trade secrets

Electronic Data Involved: ESI of former employer

First Fin. Bank N. A. v Bauknecht, No. 12-CV-1509, 2013 WL 3833039 (C.D. Ill. July 23, 2013)

Dec 01 2013

Key Insight: Magistrate Judge granted a motion to compel a search of all of defendant?s email accounts , not limited to the 4 specific individuals listed in the Rule 26(a) disclosures, reasoning that the 26(a) disclosure ?only meant? that the individuals identified may be used to support defendant?s claims or defense and that defendant did not indicate that the specified employees were the only ones to have responsive documents. The court denied Plaintiff?s request to compel Defendant to conduct separate searches of its email, one by ?recipient/sender? and one ?by subject matter? using specified search terms and reasoned that the latter search was broader, but indicated that Plaintiff could pay for the second search. Having declined to limit the accounts to be searched, the court acknowledged the likelihood that accounts unlikely to have relevant information would be included, and shifted 25% of the cost to the requesting party (Plaintiff).

Nature of Case: Breach of Employment Contract

Electronic Data Involved: ESI

Dunbar v. Google, Inc., No. C 12-330, 2013 WL 1346597 (N.D. Cal. Apr. 2, 2013)

Dec 01 2013

Key Insight: Absent evidence that the failure to preserve prior versions of relevant documents was the result of a ?culpable state of mind,? the court declined to impose spoliation sanctions

Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013)

Dec 01 2013

Key Insight: Upon receipt of ?dueling letters? concerning the inadvertent production of privileged information (which had been redacted but could be viewed in the metadata), the court noted that such an event emphasized ?the need for counsel for a producing party to keep a watchful eye over their e-discovery vendors,? but found that privilege was not waived because a Rule 502(d) order had been entered. Indeed, the court identified the ?one decretal paragraph? that stated that ?Defendants’ production of any documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by Defendants of any privilege applicable to those documents, including the attorney-client privilege ….? and concluded that, ?[a]ccordingly, [Defendant] ha[d] the right to claw back the minutes, no matter what the circumstances giving rise to their production were.? (Emphasis added.)

Hallmark Cards, Inc. v. Murley, —F.3d—, 2013 WL 149817 (8th Cir. Jan 15, 2013)

Dec 01 2013

Key Insight: Circuit court pronounced prospective rule that a district court must issue explicit findings of bad faith and prejudice prior to delivering an adverse inference instruction but found district court?s failure to do so in the present case was harmless error and that the Defendant was not entitled to a new trial

Nature of Case: Breach of contract

In re Waste Management of Texas, —S.W.3d—, 2013 WL 203603 (Tex. App. Jan. 18, 2013)

Dec 01 2013

Key Insight: Court denied petition for mandamus relief from order compelling re-production of ESI in native format with metadata where Waste Management failed to establish that the order would result in undue burden, among other things; in its analysis of undue burden, the court concluded that a request for production in a ?reasonable manner? was a sufficient to satisfy the requirement that a party ?specify the form? in which ESI should be produced (rule 196.4) and that the estimated expense of $5,500.00 to accomplish reproduction did not pose an undue burden and reasoned, in part, that the order was not unduly burdensome because of Waste Management?s ?conscious decision? to remove metadata from the original production; opinion also addressed Waste Management?s claim that the matters to be disclosed included trade secrets, its claim that the order was overbroad, issues related to the preservation of claims for appeal, and the question of whether Waste Management?s arguments related to cost allocation could adequately be addressed on appeal

Nature of Case: Petition for writ of mandamus

D.G. ex rel Strickland v. Yarbrough, No. 08-CV-074-GKF-FHM, 2013 WL 1343151 (N.D. Okla. Mar. 31, 2013)

Dec 01 2013

Key Insight: Addressing magistrate judge?s recommendations on plaintiffs? Motion for Award of Class Counsel Fees and Expenses, the district court accepted the magistrate judge?s recommendation that plaintiffs be awarded out of pocket expenses related to data storage and hosting (of electronic discovery), with some reductions; district could did not accept recommendation that plaintiffs recover for attorneys fees related to ?temporary attorneys? who conducted review of emails where there was no description provided of the work performed and where the district court took issue with plaintiffs characterization of the time as an ?expense? ?[r]ather than properly documenting and describing the time expended by the[ ] temporary attorneys?

Nature of Case: Class action, recovery of attorneys fees pursuant to 42 USC ? 1988

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