eDiscovery Import – Page 72 – Electronic Discovery Law

Trip Mate, Inc. v. Stonebridge Cas. Ins. Co., Nos. 10-0793-CV-W-ODS, 11-1097-CV-W-ODS, 2013 WL 3336631 (W.D. Mo. July 2, 2013)

Dec 01 2013

Key Insight: Acknowledging that the Eight Circuit has not yet addressed how section 1920(4) relates to electronically stored information, the court noted the persuasive reasoning in Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) which held that ?scanning documents and converting computer data into readable format constitute copying within the meaning of section 1920(4)? and found the amounts sought by Plaintiff to be reasonable

Electronic Data Involved: Taxable electronic discovery costs

Cefalu v. Holder, No. 12-0303 THE (JSC), 2013 WL 4102160 (N.D. Cal. Aug. 12, 2013)

Dec 01 2013

Key Insight: Where Defendant sought to compel production of plaintiff’s personal computers’ hard drives for inspection or to compel Plaintiff?s counsel to perform an independent search of the computer and other electronic devices to ensure that all responsive documents had been produced and where Defendant cited a prior search by Plaintiff?s counsel that yielded additional responsive documents and Plaintiff?s counsel?s admission that she had never examined the contents of Plaintiff?s personal computers, the court acknowledged that the rules do not create a right of direct access to a party?s electronic information systems, but, also acknowledged that the history of Plaintiff?s document productions suggested that he may not ?fully understand his search obligations,? and thus the court ordered Plaintiff?s counsel to ensure that all responsive documents on the computers and other devices were located and produced but declined to allow Defendant to conduct its own examination absent a demonstration of good cause

Electronic Data Involved: Contents of personal computer

Lee v Stonebridge, No. 11-cv-43 RS (JSC), 2013 WL 3889209 (N.D. Cal. July 30, 2013)

Dec 01 2013

Key Insight: Court denied Defendant?s motion to conduct a forensic inspection of Plaintiff?s iphone where there was no dispute that the at-issue phone was not the phone that received the at-issue text message and where Plaintiff?s expert indicated that the relevant iphone had been backed up on plaintiff?s personal computer; court denied motion to conduct a forensic inspection of Plaintiff?s personal computer where Defendant failed to demonstrate that the information sought was not reasonably accessible through other sources (e.g., the co-defendant that allegedly sent the at-issue text message), where plaintiff had offered to search for whatever information defendant sought, where plaintiff had already provided considerable data, and where Defendant?s request was essentially a fishing expedition; court reasoned that ?absent a showing of misconduct? raising questions regarding the completeness of Plaintiff?s expert?s search, no inspection by Defendant was warranted and ordered the parties to cooperate to create a protocol for plaintiff?s expert to use

Electronic Data Involved: iphone, contents of personal computer, text-message

Johnson v. PPI Tech. Servs., L.P., No. 11-2773, 2013 WL 4508128 (E.D. La. Aug. 22, 2013)

Dec 01 2013

Key Insight: Court sustained objections to requests for social media content reasoning that although such content was potentially discoverable, Defendant had not made a sufficient showing that the material sought was ?reasonably calculated to lead to the discovery of admissible evidence,? and went on to reason that: ?Simply placing their mental and physical conditions at issue is not sufficient to allow PPI to rummage through Johnson’s or Croke’s social media sites. Almost every plaintiff places his or her mental or physical condition at issue, and this Court is reticent to create a bright-line rule that such conditions allow defendants unfettered access to a plaintiff’s social networking sites that he or she has limited from public view.?

Electronic Data Involved: Social Network content (e.g. Facebook, MySpace, etc.)

Fairview Ritz Corp. v. Borough of Fairview, No. 09-875 (JLL), 2013 WL 5435060 (D.N.J. Sept. 27, 2013)

Dec 01 2013

Key Insight: Upon motion for reconsideration based on Plaintiff?s location and production of a document previously found to have been spoliated, court found that an adverse inference and monetary sanctions predicated on the finding of spoliation were no longer appropriate but ordered Plaintiff?s counsel to show cause why monetary sanctions should not be imposed for the delay and Defendants? protracted efforts to procure the document?s production

Electronic Data Involved: Single document (ESI)

Novick v. AXA Network LLC, No. 07 Civ. 7767(AKH)(KNF), 2013 WL 5338427 (S.D.N.Y. Sept. 24, 2013)

Dec 01 2013

Key Insight: Conducting its cost-shifting analysis ?under the Zubulake standard,? court reasoned that defendants ?failed to show that cost-shifting is appropriate because they did not establish that the production at issue was unduly burdensome or expensive, that is, that the data were kept in an inaccessible format.?

Electronic Data Involved: Emails

Novick v. AXA Network, LLC, No. 07 Civ. 7767(AKH)(KNF), 2013 WL 5597547 (S.D.N.Y. Oct. 3, 2013)

Dec 01 2013

Key Insight: Plaintiff sought production of audio recordings which Defendants initially indicated were available. Upon being ordered to produce certain information regarding those recordings, Defendants indicated they were unable to locate them. Following Plaintiff?s motion for sanctions, the recordings were discovered in a closet, but Defendants argued it would be unduly burdensome to restore and listen to the recordings and that production should not be required. Upon Plaintiff?s motion for sanctions, the court found that Defendants had willfully violated the court?s orders and prejudiced the Plaintiff. Thus, the court ordered Defendants to produce the recordings at their expense and to bear the costs of additional depositions to be taken by the Plaintiff. The court also ordered Defendants and counsel to bear Plaintiff?s reasonable attorneys fees in equal proportion.

Electronic Data Involved: Audio recordings of phone calls

Ancora Techs., Inc. v. Apple, Inc., No. 11-CV-06357 YGR, 2013 WL 4532927 (N.D. Cal. Aug. 26, 2013)

Dec 01 2013

Key Insight: Addressing taxable costs, court allowed recovery of costs related to conversion of documents to TIFF file format which the parties agreed would be the format of production but declined to allow costs for hosting electronic documents

Electronic Data Involved: ESI/ taxable costs

Kwan Software Eng?g, Inc. v. Foray Techs., LLC, No. C 12-03762 SI, 2013 WL 5487421 (N.D. Cal. Oct. 1, 2013)

Dec 01 2013

Key Insight: Where parties agreed to production of ESI in searchable form with metadata but Defendant produced TIFF images without metadata, court ordered re-production of ESI in accordance with parties’ agreement and amended the pretrial schedule

Electronic Data Involved: ESI and metadata

RPM Pizza LLC v. Argonaut Great Cent. Ins. Co., No. 10-684-BAJ-SCR, 2013 WL 6054551 (M.D. La. Nov. 15, 2013)

Dec 01 2013

Key Insight: Court ordered defendant to provide ESI in the format requested, reasoning that defendant waived its objection by not timely asserting it, and also rejected the argument that the plaintiff had not shown why it was necessary for defendant to produce in the requested form where, pursuant to Fed. R. Civ. P. 24(b)(2)(E), a requesting party is not required to make such a justification

Electronic Data Involved: ESI

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