eDiscovery Import – Page 92 – Electronic Discovery Law

Brigham Young Univ. v. Pfizer, Inc., No. 2:06-cv-890 TS, 2012 WL 1302288 (D. Utah Apr. 16, 2012)

Dec 01 2012

Key Insight: Denying plaintiffs? motion for sanctions the court distinguished the cases of Lee v. Max Int., LLC, 638 F.3d 1318 (10th Cir. 2011) and Phillip M. Adams & Assoc., LLC v. Dell, Inc., 621 F. Supp. 2d 1173 (D. Utah 2009), found the defendant had not acted in bad faith, and rejected plaintiffs assertions that the duty to preserve arose from obligations to maintain information pursuant to corporate policy or an obligation to the government; noting that most relevant documents were from the 1990?s, the court also acknowledged that even where a preservation obligation exists, the passage of time can result in the inadvertent destruction or misplacement of evidence and the fading of human memories

Electronic Data Involved: Unspecified in opinion

Ameripride Servs. Inc. v. Valley Indus. Serv., Inc., No. CIV S-00?113 LKK/FM, 2012 WL 1641749 (E.D. Cal. May 9, 2012)

Dec 01 2012

Key Insight: Court granted recovery of costs related to ?internal scanning, importing and electronic review of documents? where plaintiff asserted that the documents were scanned and produced at defendant?s request, and in the electronic format demanded and where plaintiff asserted that ?importing, coding, and OCR ? were necessary to produce the documents? as demanded

Electronic Data Involved: ESI

Excel Gold Products, Inc. v. MacNeill Eng?g Co., Inc., No. 11 C 1928, 2012 WL 1570772 (May 3, 2012)

Dec 01 2012

Key Insight: Despite finding that plaintiff had not produced sufficient information regarding its review procedures to establish that reasonable steps were taken to prevent inadvertent disclosure of privileged information, the court found that concerns of ?overriding fairness? precluded waiver where plaintiff had attempted to enter into a clawback agreement and where defense counsel?s rejection of such an agreement (because there was a protective order) could ?readily? have been interpreted to mean that inadvertently produced materials would be returned without dispute; plaintiff was ordered to conduct privilege review of documents produced, to the extent not already done

Electronic Data Involved: Inadvertently produced ESI

U.S. ex rel Yannacopoulos v. Gen. Dynamics, No. 03 C 3012, 2012 WL 1748120 (N.D. Ill. May 15, 2012)

Dec 01 2012

Key Insight: Court awarded electronic copying costs incurred in response to plaintiffs? production request

Electronic Data Involved: Exemplification costs

Ramadhan v. Onondaga Cnty., No. 5:10-CV-103, 2012 WL 1900198 (N.D.N.Y. May 24, 2012)

Dec 01 2012

Key Insight: Addressing plaintiff?s motion for sanctions court laid out relevant law of spoliation and found that defendants had a duty to preserve relevant evidence but declined to impose sanctions where plaintiff failed to establish that allegedly spoliated emails were relevant; where plaintiff failed to establish that additional SERT video existed or was relevant to his claims; and where plaintiff failed to establish prejudice from unproduced booking video, particularly where he presented conflicting assertions regarding its relevance (where he at once moved to preclude presentation of evidence related to the underlying offense or arrest and sought sanctions for the booking video?s spoliation)

Electronic Data Involved: Emails, video

Adair v. EQT Prod. Co., No. 1:10cv00037, 2012 WL 1965880 (W.D. Va. May 31, 2012)

Dec 01 2012

Key Insight: Considering the burden of production and the court?s ability to relieve it, the court held that consideration of the cost of review alone, related to otherwise accessible data, can be considered in deciding whether discovery imposes an undue burden or cost and may form the basis for a court?s decision to shift costs; court noted in this case, though, that a protective order and clawback agreement combined with a proposal to preclude production of any documents to or from in-house or outside counsel precluded defendant’s need to conduct a expensive privilege review and ordered production in accordance with the court?s order; affirmed with minor modifications 2012 WL 2526982

Electronic Data Involved: Esi

Fisher v. Fisher, No. WDQ-11-11038, 2012 WL 2050785 (D. Md. June 5, 2012)

Dec 01 2012

Key Insight: After carefully laying out the law surrounding document requests/productions, court evaluated plaintiff?s motion to compel and, invoking principles of proportionality, granted in part and denied in part the motion

Electronic Data Involved: ESI

FTC v. Johnson, No. 2:10-cv-02203-RLH-GWF, 2012 WL 2138108 (D. Nev. June 12, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced documents as kept in the usual course of business and labeled some documents to correspond to certain requests and where plaintiff included ?a searchable concordance and an index that identifies the document?s source, description, and date range? the court found that the production complied with Rule 34 and denied defendant?s motion to compel plaintiff to ?respond to the requests for production of documents with organized and related responses?

Electronic Data Involved: ESI

Vietnam Veterans of Am. v. Central Intelligence Agency, No. 09-cv-0037 CW (JSC), 2012 WL 2375490 (N.D. Cal. June 22, 2012)

Dec 01 2012

Key Insight: In dispute over 24 40-year old magnetic tapes, 6 of which defendants had attempted to restore with only partial success (contents of 2 of the 6 tapes were recovered), the court found the information on the tapes to be not reasonably accessible in light of the significant but only partially successful recovery efforts but, recognizing the potential relevance of the contents, ordered that plaintiff would be allowed to attempt recovery (using outside vendors with sufficient security clearance) at their own expense and that if recovery was successful, the court would consider a cost-shifting motion

Electronic Data Involved: 40-year old magnetic tapes

Margolis v. Dial Corp., No. 12-CV-0288-JLS (WVG), 2012 WL 2588704 (S.D. Cal. July 3, 2012)

Dec 01 2012

Key Insight: Court denied Plaintiffs? request for a preservation order as to voicemail and instant messages where defendants had already sent litigation hold notices requiring preservation such that Plaintiffs? request was moot; Court further declined to enter preservation order as to backup tapes where defendants established that their preservation would impose a significant burden and that the contents were likely duplicative and where the court found that the backup tapes did not fall within the exception identified in Zubulake v UBS Warburg, 220 FRD 212 (S.D.N.Y. 2003).

Electronic Data Involved: Voicemail, instant messages, backup tapes

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