eDiscovery Import – Page 83 – Electronic Discovery Law

Johnson v. Metro. Gov. of Nashville and Davidson Cnty., TN, 2012 WL 4945607 (6th Cir. Oct. 18, 2012)

Dec 01 2012

Key Insight: Reviewing District Court?s denial of spoliation sanctions for abuse of discretion, Circuit Court found that the at-issue information should have been preserved and was intentionally destroyed but upheld the denial of sanctions based on plaintiffs? inability to establish relevance, a necessary element of the test for determining whether sanctions are appropriate

Nature of Case: Employment discrimination

Electronic Data Involved: ESI (Survey results)

Johnson v. Allstate Inc. Co., No. 07-cv-0781-SCW, 2012 WL 4936598 (S.D. Ill. Oct. 16, 2012)

Dec 01 2012

Key Insight: Court addressed question of taxable costs and relied heavily on Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009) and Race Tires Am. Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) and allowed recover as to rendering ESI word searchable, the creation of TIFF images, the creation of hard copies, photocopying, the creation of graphics for use at the hearing, and fees for obtaining transcripts but denied recovery as to the creation of a litigation database, processing of ESI, extraction of metadata, deduplication, electronic data hosting, and ?preparing ESI for production?

Nature of Case: Violations of Consumer Fraud and Deceptive Business Practices Act

Electronic Data Involved: ESI

Coral Group Inc. v. Shell Oil Co., No. 4:05-CV-0633-DGK, 2012 WL 4569468 (W.D. Mo. Sept. 30, 2012)

Dec 01 2012

Key Insight: For intentional spoliation resulting in irreparable prejudice, including a ?discernible pattern? of efforts to deprive Plaintiffs of relevant financial information contained on the computer of Plaintiff?s outside accountant and the failure to preserve other data, the court ordered that plaintiff?s claims were dismissed with prejudice

Nature of Case: Fraud, breach of contract

Electronic Data Involved: ESI

Minter v. Wells Fargo Bank, N.A., —F.R.D.—, 2012 WL 4903315 (D. Md. Oct. 12, 2012)

Dec 01 2012

Key Insight: Addressing production of business records pursuant to Rule 33(d) and, more specifically, who should bear the cost of imaging and segregating the relevant information from the many other pages of information with which the at-issue data was maintained, the court addressed the question of who would bear a heavier burden in locating and extracting the information (or whether the burden was even), determined it would be the plaintiffs (noting, for example defendant?s reliance on particular software not available to plaintiffs) and rejected defendant?s offer to do the work if plaintiffs bore the costs; court found that defendant must bear the cost of imaging and producing the data requested; court also addressed case scheduling in light of the time estimates for accomplishing the production and considered defendant?s resources, including the number of scanners and personnel that were required to complete the task, before ordering a deadline accordingly

Nature of Case: Alleged scheme to generate unlawful fees related to loan applications

Electronic Data Involved: Rule 33(d) business records

United States v. NCR Corp., No. 10-C-910, 2012 WL 4955304 (E.D. Wis. Oct. 17, 2012)

Dec 01 2012

Key Insight: Court denied motion to compel production of additional documents in CERCLA action where government had already produced a ?staggering? amount of discovery and indicated that additional discovery obligations would be burdensome and where the information sought would only be of ?limited relevance? to the issues of the case

Nature of Case: CERCLA

Electronic Data Involved: ESI

Rogers v Allstate Ins. Co., No. 11-cv-7776, 2012 WL 5250513 (E.D. Pa. Oct. 23, 2012)

Dec 01 2012

Key Insight: Where plaintiff recycled the at-issue computer after being notified that Allstate disputed the effective date of her cancellation (which may have been discernible from examination of the computer) but before it was formally requested in discovery (almost two years later), court questioned whether a lay person would have known to keep her computer because of potential litigation when the computer was not the subject of her claim and declined to dismiss her claims but indicated that it would entertain further motions practice on the issue closer to trial

Nature of Case: Breach of contract, bad faith

Electronic Data Involved: Personal Computer

Augstein v. Leslie, No. 11 Civ 7512(HB), 2012 WL 4928914 (S.D.N.Y. Oct. 17, 2012)

Dec 01 2012

Key Insight: Where a major question in the case was what defendant?s hard drive contained at the time it was returned to him and where defendant sent that hard drive to the manufacturer and received a replacement during a time when he was ?on notice? that the information may be relevant to future litigation, the court found that defendant was at least negligent in his handling of the drive and imposed an adverse inference which allowed the assumption that the drive contained the at-issue intellectual property at the time it was returned by the plaintiff to the police

Nature of Case: Action to collect reward offered for return of laptop and its contents

Electronic Data Involved: Hard drive

FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., —F. Supp. 2d—, 2012 WL 4888473 (D.D.C. Oct. 16, 2012)

Dec 01 2012

Key Insight: Where FTC sought to compel defendant to search for and produce responsive ESI on backup tapes, the court resolved the question of what standard must be applied to properly analyze the producing party?s claims of burden (Rule 26(b)(2)(B) ?good cause? to overcome the burden shown by the responding party v. the standard established in FTC v. Texaco Inc., 555 F.2d 862 (DC Cir 1977) ?a showing that compliance with the subpoena ?threatens to unduly disrupt or serious hinder normal operations of a business??) and determined that in light of the narrowed request, the defendant had not established a sufficient burden and thus ordered defendant to conduct a search of the at-issue backup tapes and to produce any non-privileged materials

Nature of Case: Administrative Subpoena

Electronic Data Involved: Backup tapes

Pearson Educ., Inc. v. Doe, No. 12 Civ. 4786(BSJ)(KNF), 2012 WL 4832816 (S.D.N.Y. Oct. 1, 2012)

Dec 01 2012

Key Insight: Court denied motion for expedited discovery to Paypal Inc purportedly intended to determine the identity of an alleged copyright infringer where plaintiff failed to sustain their burden of making a clear and specific showing of good cause and sufficient reason why there motion was necessary, including because plaintiff failed to assert that Doe defendant lived in the relevant judicial district, because plaintiff failed to establish that they exhausted traditional avenues of identification and because the subpoena was overly broad, among other reasons

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information from internet service provider (ISP)

Freeman v. Dal-Tile Corp., No. 5:10-CV-00522-BR, 2012 WL 4577718 (E.D.N.C. Oct. 2, 2012)

Dec 01 2012

Key Insight: Court granted motion to compel defendant to image and search a particular hard drive and to conduct a keyword search of certain email accounts using plaintiff?s proposed key word search terms where the court determined that it was reasonable to expect the accounts to contain relevant information, where plaintiffs terms were appropriately limited in number and scope, and where defendant did not assert that the searches would be unduly burdensome

Nature of Case: Employment discrimination and related claims

Electronic Data Involved: ESI, email, hard drive

Author - eDiscovery Import