Key Insight: Court held that costs related to the creation of an electronic database solely for the benefit of Plaintiff?s counsel were not taxable as fees for exemplification
Nature of Case: Securities fraud
Electronic Data Involved: Taxable costs
Key Insight: For Defendants? discovery failures, including gross negligence in the identification and collection of potentially relevant documents (as a result of an individual defendant?s attempts to identify and collect responsive documents himself) and a ?cavalier attitude towards his discovery obligations? (as evidenced by the ?repeated failure? to conduct a proper document collection? and ?lack of candor regarding their document productions,? e.g., failure to indicate that certain produced emails were not ?the actual transmittal communications? that originally accompanied invoices), the court declined to impose severe sanctions absent evidence of bad faith – although the request was denied without prejudice – and ordered Defendants to pay reasonable expenses and fees incurred by Plaintiff that were attributable to Defendants? discovery misconduct, which Plaintiff represented could exceed $100,000
Nature of Case: Breach of contract, breach of warranty, unfair competition, fraud
Electronic Data Involved: ESI, including QUickbooks
Key Insight: Court sustained objections to taxation of costs related to processing email accounts and other files into searchable format where the services were performed by the ?litigation support department? of defendant?s outside counsel and went ?far beyond the mere reproduction or exemplification of documents? and instead comprised the ?kind of work conventionally performed by attorneys and paralegals, the costs of which are not recoverable?
Nature of Case: Discrimination and retaliation
Key Insight: Where non-party represented that responding to subpoena would be burdensome in light of need to comb through vast amounts of ESI which had not been organized in anticipation of litigation, court determined such representations constituted ?blanket assertions? but failed to meet the high burden of showing, with particularity, the source and extent of the burden claimed and declined to quash the subpoena for that reason
Electronic Data Involved: Research materials from university professor
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
Key Insight: Where Defendant produced forty gigabytes of material on a single memory stick organized into folders by search term, with no other organization by custodian or otherwise, court noted that ?[o]rganizing a production to reflect how the information is kept ?in the usual course of business? sometimes requires the producing party to include different identifying information according to the type of document or file produced,? and that ?[e]mails specifically are produced in the usual course of business when responsive emails are arranged ?by custodian, in chronological order and with attachments, if any?? and found that the production was not in an appropriate format in this case; court ordered Defendant to bear the costs to convert the ESI into a readily usable format (estimated to be $8,463.00)
Electronic Data Involved: ESI
Key Insight: Where defendants hired an inexperienced vendor/consultant to identify potentially responsive ESI using search terms provided by plaintiffs and produced 3.5 million documents (which included privileged information) without further review save the attempted removal of documents containing the ?hickorylaw.com? extension (which proved unsuccessful), the court acknowledged a five-factor test to analyze the question of waiver, indicated the question of whether reasonable precautions were taken was controlling, and found that privilege had been waived where defendants’ efforts to guard against waiver were insufficient, particularly in light of the high volume of ESI which should have prompted more diligent efforts; court considered whether waiver was appropriate where defendants sought assistance from an outside consultant but found that counsel?s supervision of that consultant was insufficient: ?But, the court also concludes that efforts by a consultant demand a degree of oversight that is absent here.?
Electronic Data Involved: ESI
Key Insight: Where plaintiff produced ESI as documents compiled onto just a few PDF files that lacked metadata or searchable text by printing the ESI and then scanning it for production and resisted reproduction on the grounds of undue burden based on the estimated $10,000 cost of doing so, the court found that the ESI was not produced as ordinarily kept or in a reasonably usable format and further declined to find the information was not reasonably accessible or, if it was, that good cause had been shown to compel reproduction
Nature of Case: Breach of fiduciary duties, tortious interference with business relationships, fraud, breach of contract, conversion, and replevin
Electronic Data Involved: ESI
Key Insight: Court denied plaintiff?s motion to compel inspection of third party?s electronic records where the subpoenas seeking access was overly broad, where the existence of additional responsive information was speculative, where the information sought was cumulative of information obtained elsewhere, and where conducting the requested search would result in a significant burden to a non-party
Nature of Case: Action to recover damages from former employer’s insurers
Electronic Data Involved: ESI
Key Insight: Where relevant documents were discovered upon forensic examination and evidence indicated they had been modified, but not what the modifications were, the court reasoned that the documents had not been destroyed (because they were discovered on the hard drive) and that Plaintiffs did not dispute defendant?s argument that the modifications could have been the result of merely saving the documents?without making other alterations?and thus declined to grant plaintiffs motion for spoliation sanctions
Nature of Case: Emploment Litigation
Electronic Data Involved: ESI
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