Case Summaries – Page 110 – Electronic Discovery Law

S.E.C. v. CKB168 Holdings, Ltd., No. 13-CV-5584 (RRM), 2015 WL 4872553 (E.D.N.Y. Jan. 7, 2015)

Dec 01 2015

Key Insight: Rejecting defendants? explanation that their failure to preserve was the result of a vendor?s refusal to continue assistance for the reason of non-payment, the court found that defendants? had a duty to preserve the information stored on the corporate server that began ?well before the vendor stopped providing services? and reasoned that it was defendants? obligation to ?take ?all necessary steps to guarantee that relevant data was both preserved and produced,?? and also found that defendants were ?at a minimum grossly negligent? for failing to preserve relevant evidence where there was no evidence of efforts to preserve a readable copy of the corporate server nor evidence that they sought modification of the freeze on their assets in able to make payments to the vendor; magistrate judge recommended sanction of an adverse inference

Nature of Case: Securities and Exchange Commission investigation (SEC)

Electronic Data Involved: Contents of corporate server / “back office data”

Moore v. Wayne Smith Trucking, Inc., No. 14-1919, 2015 WL 6438913 (E.D. La. Oct. 21, 2015)

Dec 01 2015

Key Insight: Court concluded that Facebook materials are discoverable but would not require Defendant to produce his username and password and instead ordered Defendant to provide his attorney with postings from the relevant time period to be reviewed by the attorney?and not the defendant?to identify responsive information

Nature of Case: Personal injury

Electronic Data Involved: Social network contents (e.g., Facebook, MySpace)

Webb v. Ethicon Endo-Surgery, Inc., No. 13-1947(JRT/JJK), 2015 WL 317215 (D. Minn. Jan. 26, 2015)

Dec 01 2015

Key Insight: Court overruled parties’ objections to Magistrate Judge’s order addressing scope of discovery where underlying court properly considered and applied the principle of proportionality; addressing defendant’s alleged costs of production, court reasoned in part that ?The fact that a corporation has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.?

Nature of Case: Products liability

Electronic Data Involved: ESI

Robertson v. People Magazine, No. 14 Civ. 6759 (PAC), 2015 WL 9077111 (S.D. N.Y. Dec. 16, 2015)

Dec 01 2015

Key Insight: Court addressed motion to compel and held that requests were burdensome, disproportionate to the needs of the case, and irrelevant to Plaintiff?s claims reasoning that Plaintiff?s requests for ?nearly unlimited access to People?s editorial files? would ?extend far beyond the scope of Plaintiff?s claims and would significantly burden Defendants?

Nature of Case: Employment litigation

Electronic Data Involved: ESI

O?Connor v. Newport Hosp., 2015 WL 1225683 (R.I., Mar. 17, 2015)

Dec 01 2015

Key Insight: Court vacated judgment in a medical malpractice case and remanded the case for a new trial where the trial justice admitted 3 exhibits without proper authentication, and exacerbated the error by allowing a biased, incorrect jury instruction which highlighted the information contained in the erroneously admitted exhibits, contributing to their prejudicial effect. Exhibits in question – whose purpose was to impeach plaintiff?s sole medical expert witness – were 2 printed versions of web pages, and a purported printout of an email, all of which were admitted over plaintiff?s objections after plaintiff?s expert witness was asked questions about their contents. With the record indicating no attempt to verify authenticity, no comments or findings from the justice with respect to authentication of any of the documents, nor indication on the record that defendant?s counsel made any representations to the trial justice regarding when or by whom the purported web page print outs were accessed and printed, the court concluded ?While we have not set a ?high hurdle to clear? with respect to authentication ? we hold that the trial justice abused his discretion by admitting exhibits A-C based solely on the brief testimony of one witness who was clearly unfamiliar with all three documents.?

Nature of Case: Medical malpractice

Electronic Data Involved: Email; Web page

In re Blue Cross Blue Shield Antitrust Litig., No. 2:13-CV-20000-RDP, 2015 WL 10891632 (N.D. Ala. Nov. 4, 2015)

Dec 01 2015

Key Insight: Court held that ?litigation/preservation holds and memoranda (at least in this case) issued by a corporate party to its employees for purpose of giving instruction and direction concerning documents and records to be preserved by those employees, even where that instruction arises from legal advice from counsel, are not shielded by the attorney-client privilege? and ordered production of certain litigation holds, including sections identifying the documents to be preserved, characterizing the litigation holds as ?managerial? and without the protection of attorney-client or work product privileges

Nature of Case: Antitrust

Electronic Data Involved: Litigation holds (i.e., legal holds, record holds)

Balance Point Divorce Funding LLC v. Srantom, No. 13-cv-1049 (PKC), 2015 WL 997718 (S.D.N.Y. Mar. 6, 2015)

Dec 01 2015

Key Insight: Court approved taxation of costs related to TIFF conversion and ?uploading responsive documents through the use of a File Transfer Protocol,? but declined to allow costs related to ?Processing Initial Dataset,? ?Culling and Posting Resulting Data Subset,? ?Optical Character Recognition (OCR) Processing,? ?ID/Conversion of Non-searchable Docs to Searchable,? ?Project Management,? ?Hosting Active-Data,? and ?document unitization?

Electronic Data Involved: Taxable e-Discovery costs

Mobile Telecomm. Techs., LLC v. Samsung Telecomm. Am., LLC, No. 2:13-cv-259-RSP, 2015 WL 5719123 (E.D. Tex. Sept. 28, 2015)

Dec 01 2015

Key Insight: Court denied recovery of OCR costs where Defendant failed to show that the step was necessary for making copies, where no party had identified 5th Circuit authority allowing recovery of OCR costs, and where the holding was consistent with the Court?s standing order, which specifically instructed that e-Discovery costs were not allowed, including ?cost for document collection, document processing, and document hosting.?

Electronic Data Involved: Taxable costs

Bagely v. Yale University, —F. supp. 3d—, No. 3:13-CV-1890 CSH, 2015 WL 1897425 (D. Conn. Apr. 27, 2015)

Dec 01 2015

Key Insight: Court denied motion for protective order seeking permission to be excused from the obligation to conduct further discovery where, although defendant claimed that prior production efforts had resulted in a less than 8% responsiveness rate, the court reasoned that Rule 26(b)(2)(B) ?measures the phrase ?not reasonably accessible? by whether it exposes the responding party to ?undue cost.? Not some cost: undue cost . . .? and where the court reasoned that Plaintiff had, in any event, shown good cause for further discovery; court?s discussion provides good analysis of issues related to 26(b)(2)(B)

Nature of Case: Wrongful termination

Electronic Data Involved: ESI from agreed upon custodians

City of Sterling Heights Gen. Emps.? Ret. Sys. V. Prudential Fin., Inc., No. 12-05275(MCA)(LDW), 2015 WL 5055241 (D.N.J. Aug. 21, 2015)

Dec 01 2015

Key Insight: Citing its broad discretion to manage discovery and the limitations posed by Rule 26(b)(2)(C), court granted in part and denied in part Plaintiffs? motion to compel Defendant to identify additional custodians and utilize additional search terms and ordered that Plaintiffs would be allowed to choose up to 10 additional custodians and that Defendant must apply the four disputed search terms proposed by Plaintiffs

Nature of Case: Securities Class Action

Electronic Data Involved: ESI

Catagory:Case Summaries