Case Summaries – Page 116 – Electronic Discovery Law

Cason-Merenda v. VHS of Michigan, Inc., 118 F. Supp. 3d 965 (E.D. Mich. 2015)

Dec 01 2015

Key Insight: Court declined to compel Plaintiffs? production of all discovery produced by any party in the case for Defendant?s use where Defendant failed without adequate explanation to maintain all such documents throughout the pendency of litigation due, perhaps, to changes in ownership and legal representation and where Plaintiffs? compilation of such information was work product, but ordered Plaintiff to produce from its database any specifically identified documents at Defendant?s cost

Electronic Data Involved: Contents of Plaintiffs’ discovery database (i.e., the collection of discovery produced by any party during the litigation)

Unichappel Music, Inc. v. Modrock Prods., LLC, No. 14-2382-DDP (PLA), 2015 WL 12697738 (C.D. Cal. Aug. 28, 2015)

Dec 01 2015

Key Insight: Where responding party asserted that an at-issue request would require production of ?voluminous? irrelevant documents, that identification of the requested documents would require searching through thousands of clients files estimated to take ?one or more persons weeks to accomplish? or would cost between $8740 – $18350 if a vendor was retained to assist – not including attorney review, and that the information was available through alternative means, including depositions, the court concluded that the documents were ?at least minimally relevant? but that the burden of FULL production outweighed the benefit to the requesting party and ordered the responding party to utilize search terms or to hire a vendor to produce a more limited set of documents as prescribed by the court; court declined to shift the costs of the search , reasoning (in footnote) that ?[t]he mere fact that responding to a discovery request will require the objecting party ?to expend considerable time, effort and expense consulting, reviewing and analyzing ?huge volumes of documents and information? is an insufficient basis to object? to a relevant discovery request.?

Electronic Data Involved: ESI

Davenport v. Charter Comm?cns., LLC, No. 2015 WL 1286372 (E.D. Mo. Mar. 20, 2015)

Dec 01 2015

Key Insight: Court denied Plaintiffs? motion to compel re-production of time records in .xls format where Defendant first produced the records in a searchable PDF format, generally found by courts to be ?reasonably usable,? and where the parties? discovery plan contemplated the possible reproduction of certain information upon a showing of good cause in situations where the data or metadata was not adequately captured, but where the court found that Plaintiffs desire to manipulate the documents with greater ease did not constitute good cause; court stated: ?Such difficulties would have been a good reason for Plaintiffs to specify a particular format in their request for production, but are not sufficient ?good cause? to force Defendant to reformat and produce data which it has already provided.?

Nature of Case: FLSA Collective Action

Electronic Data Involved: Electronic Time Clock Records

Smith v. Williams, No. 06-14-00040-CV, 2015 WL 3526089 (Tx. Ct. App. May 29, 2015)

Dec 01 2015

Key Insight: Trial court erred by giving a spoliation instruction for Defendant?s failure to produce certain information where an explanation was given for the nonexistence of some records and where there was no evidence that the missing records were lost with the requisite intent to conceal or destroy relevant evidence and the error was harmful; judgment was reversed and case remanded

Nature of Case: Personal injury resulting from automobile/tractor-trailer collision

Electronic Data Involved: Miscellaneous records

Charvat v. Valente, No. 12 CV 5746, 2015 WL 4037776 (N.D. Ill. July 1, 2015)

Dec 01 2015

Key Insight: Court declined to impose sanctions for loss of former employees? ESI where ESI was deleted pursuant to ?established document retention policy? absent any evidence of bad faith

Nature of Case: Prohibited Telemarketing

Electronic Data Involved: ESI

Am. Fed. Of Musicians of the U.S. and Canada v. Skodam Films, LLC, NO. 3:15-mc-122-M-BN, 2015 WL 7771078 (N.D. Tex. Dec. 3, 2015)

Dec 01 2015

Key Insight: Court concluded non-party?s objections to the at-issue subpoena were subject to Rule 34 requirements for objections and, addressing the non-party?s claims of overbreadth and burden, modified the subpoena upon finding that the document requests were ?facially overbroad and pose[d] an undue burden? because they called for the production of ?apparently every document? related to the making of the at-issue movie

Nature of Case: Breach of contract

Electronic Data Involved: Third party discovery, including ESI

Younes v. 7-Eleven, Inc., —F. Supp. 3d—, 2015 WL 8543639 (D.N.J. Dec. 11, 2015)

Dec 01 2015

Key Insight: Finding defendant and counsel in violation of Rule 26(g) for failing to adequately search for discovery (and for their misrepresentations about those efforts), court instructed that ?Rule 26(g) should not be treated like the proverbial stepchild? and that ?Lawyers should not act like ?potted plants? and accept implausible representations from clients . . . .? and also found that sanctions were warranted pursuant to Rule 37(b)(2) for defendant?s violation of the court?s order to produce; accordingly the court imposed sanctions and admonished defendant and counsel for their violation of Rule 26(g) and awarded Plaintiff their fees and costs incurred to obtain the discovery

Nature of Case: Claims arising from alleged plan to terminate franchise agreements

Electronic Data Involved: ESI, hard copy

Good v. Am. Water Works Co., Inc., No. 2:14-1374, 2015 WL 1757978 (S.D. W. Va. Apr. 17, 2015)

Dec 01 2015

Key Insight: Where defendant objected to Plaintiffs? requests for production on grounds of relevance, but nevertheless produced the information in the format in which it was ordinarily maintained (Microsoft SQL Server format) and also provided Plaintiffs with the means to access the data in a ?parallel environment? and then later in an excel format for a limited period of time, indicating that the earlier periods of time were not reasonably accessible, and where Plaintiffs ultimately ?did not disagree? that the information was not as useful as they had thought, the court found the rest of the requested information (from the earlier time periods) was not reasonably accessible and that the burden of production outweighed its likely benefit and denied the motion to compel unless good cause could be shown

Electronic Data Involved: Archived ?SCADA? data from a Microsoft SQL Server format

Moulton v. Bane, No. 14-cv-265-JD, 2015 WL 7776892 (S.D.N.H. Dec. 2, 2015)

Dec 01 2015

Key Insight: Where Defendant unintentionally lost text messages when his service provider failed to transfer those text messages to his new phone?despite his request to transfer ?everything??and where the texts were later recovered by a forensic analysist, court declined to impose ?punitive sanctions? and ordered Defendant to pay the cost of retrieving the messages

Electronic Data Involved: Text messages (WhatsApp)

Andra Grp. LP v. JDA Software Grp., Inc, No. 3:15-mc-11-K-BN, 2015 WL 12731762 (N.D. Tex. April 13, 2015)

Dec 01 2015

Key Insight: Magistrate Judge concluded that absent evidence of a special relationship or circumstance that imposed a duty to preserve evidence, a third party did not have an obligation to preserve evidence before it was served with a subpoena, even though it was aware of potential litigation against a party with whom it had a close working relationship. Where the non-party was ordered to search for and produce all responsive information but limited its search to its ShareFile and failed to adequately investigate whether responsive information existed on its computers and other devices, the Magistrate judge reasoned that compliance required more than ?simply asking current employees if they have responsive documents? and concluded that third party?s mere survey of current employees (omitting an employee with a difficult personality) as to whether they had responsive emails without an attempt to search or forensically image any devices in its custody failed to satisfy the Discovery Order?s request to make ?all reasonable efforts to search? for potentially relevant documents, violating Rule 45(g).

Electronic Data Involved: ESI

Catagory:Case Summaries