Case Summaries – Page 84 – Electronic Discovery Law

Carlson v. Jarousek, No. 2-15-1248, 20167243557 (Ill. App. Ct. Dec. 21, 2016)

Dec 01 2016

Key Insight: In personal injury case, the trial court abused its discretion by ordering forensic imaging of ALL of Plaintiff?s devices, including his work computer which was owned by his employer, where, among other things, the appellate court determined that such a request ran ?counter to the traditional protocol of discovery, in which one party requests specific information and the other party searches its own files (and computers) to identify and produce responsive information?; where the computer was not directly involved in the cause of action; where there was no evidence of prior discovery violations; and where ?careful consideration of relevance and proportionality reveal[ed] that forensic imaging was not justified in this case? including because there were ?ample? alternative avenues for discovery (e.g, requests for admission, depositions) and because much of the information sought fell within the categories of ESI identified in Illinois to be presumptively not discoverable; the court also addressed Plaintiff?s privacy concerns

Nature of Case: Personal injury (appeal)

Electronic Data Involved: Forensic imaging of computers (including work computer)

Moore v. Lowe?s Home Centers, LLC, No. 2:14-cv-01459 RJB, 2016 WL 3458353 (W.D. Wash. June 24, 2016)

Dec 01 2016

Key Insight: No sanctions imposed for Defendant?s deletion of Plaintiff?s email in accordance with Defendant?s email retention policy following her termination where Plaintiff?s emails to HR and management ?did not raise ?potential claims? but rather raise Plaintiff?s concerns about workplace gossip and challenging relationships? and where other ?low-level employees? general awareness that Plaintiff was rumored to pursue litigation? did not result in a duty to preserve

Nature of Case: Employment litigation

Electronic Data Involved: Emails of departed/terminated employee

Steward Health Care Sys. LLC v. Blue Cross & Blue Shield of Rhode Island, No. 15-272, 2016 WL 8716426 (E.D. Pa. Nov. 4, 2016)

Dec 01 2016

Key Insight: Third party objected to Subpoena to produce documents alleging undue burden and significant expense and refused to comply without a cost-shifting order. The Court consequently granted the requesting party?s motion to compel and the third party was ordered to produce all responsive documents by the ?most reasonable and practical method it can procure.? Following production, the third party then sought $30,603.55 in expenses. The Court?s two-prong analysis examined the expenses as to whether they were both reasonable and significant. The Court did not award attorneys? fees because the privilege and confidentiality review was a benefit only to the third party. Partial vendor costs were awarded, namely the amount it would have been had the third party used the vendor suggested by the requesting party and some additional miscellaneous costs were awarded. The Court found a total of $4,072 were expenses that resulted from compliance with the Subpoena and did qualify as ?significant expenses.?

Nature of Case: Antitrust and tort

Electronic Data Involved: Gmail

W. Radio Servs. Co. v. Allen, No. 6:14-CV-00747-AA, 2016 WL 684658 (D. Or. Feb. 16, 2016)

Dec 01 2016

Key Insight: Noting that ?this court has held previously, ?the costs associated with the formatting and preparing of the administrative record are proper and necessarily incurred to produce electronic copies? for use in the case? the court allowed costs for ?converting TIFF images into searchable PDF format, electronically Bates-stamping the PDF images, hyperlinking the PDF images to the index, editing the index, and burning the images to DVDs.?

Electronic Data Involved: Taxable costs

Ferring B.V. v. Fera Pharm. LLC, CV 1304640(SJF)(AKT), 2016 WL 5396620 (E.D.N.Y. Sept. 27, 2016)

Dec 01 2016

Key Insight: Where Defendant responded to court?s inquiries regarding its search efforts and marked its search terms and a ?non-exhaustive list of topic areas of documents produced to Plaintiff? as attorney work product, court reasoned that ?this is precisely the type information which is generally shared by counsel in complex civil litigation cases so that they may reach an agreement regarding the scope of production of ESI? and that ?[t]he norm in these cases is that counsel for both sides review and agree in advance on the parameters of the search, on any search terms to be used, and on the specific custodians whose files are to be searched? and ordered Defendant to file unredacted copies on ECF, but indicated that they would be under seal to protect information covered by the Stipulation and Order of Confidentiality

Electronic Data Involved: Search terms

Prometheus Labs. Inc. v. Roxane Labs. Inc., Nos. 11-230 (KM), 11-1241 (KM), 2016 WL 1559144 (D.N.J. Apr. 18, 2016)

Dec 01 2016

Key Insight: Citing Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012), the court declined to tax costs for all ESI costs where relevant invoices ?did not clearly show any services performed to create a readable format,? where OCR charges are not taxable, where there were no entries in the relevant invoices for ?scanning hard copy documents or converting native files to TIFF format? (both taxable costs) and where it was not clear from the invoices that the services were conducted for Plaintiff?s benefit, rather than Defendant?s; court rejected argument that OCR should be taxed because of the parties? agreement

Electronic Data Involved: Taxable costs

Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2015 WL 5027899 (E.D.N.Y. Aug. 25, 2015); Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2016 WL 128154 (E.D.N.Y. Jan. 12, 2016)

Dec 01 2016

Key Insight: Addressing motion for sanctions for the loss of emails in third party custody (GoDaddy), Iron Mountain back ups, and miscellaneous computer files, the Magistrate Judge concluded: 1)that Exeter had a duty preserve reasoning that since 2009 it had been involved in other litigation involving the disclosure of its books, records and financial documents, and that Exeter therefore knew or should have known that the documents ?could be relevant to future litigation? and also found that even if the filing of the 2009 lawsuit (involving different parties) did not trigger the preservation obligation, receipt of a 2009 subpoena should have and that in any event, the duty to preserve arose no later than Exeter?s 2011 bankruptcy filing; 2)that Exeter?s loss of ESI was ?intentional and done in bad faith? absent evidence of any effort to ensure preservation or to contact the third-party providers to inform them of the duty; and 3) that as a result of the intentional loss, a presumption of relevance was warranted and therefore recommended a sanction of an permissive adverse inference at trial; upon Exeter?s objection, District Court adopted the sanctions recommendation entirely and indicated that ?[W]hen there has been intentional destruction of evidence by an officer of a closely held corporation, other officers of the closely held entity may be subject to sanctions, even if they did not have direct control of the evidence at issue.?

Nature of Case: Plaintiff claims that Defendants defrauded Exeter?s creditors by transferring funds from Exeter to themselves, certain trusts, and other entities.

Electronic Data Involved: Email in third-party custody, Iron Mountain backups, miscelaneous ESI

Broadspring, Inc. v. Congoo, LLC, No. 13-cv-1866(RJS), 2016 WL 817449 (S.D.N.Y. Feb. 24, 2016)

Dec 01 2016

Key Insight: Allowing taxable costs for the conversion of native files to TIFF

Nature of Case: Defamation

Electronic Data Involved: Taxable costs

T-Mobile USA, Inc. v. Huawei Device USA, Inc., No. C14-01351 RAJ, 2016 WL 1597102 (W.D. Wash. Apr. 20, 2016)

Dec 01 2016

Key Insight: Motion for protective order granted where requested information was not relevant to claims or defenses plead and thus was outside of the scope of discovery

Nature of Case: Misappropriation of Trade Secrets

Electronic Data Involved: ESI, database

Botey v. Green, No. 3:12-CV-01520, 2016 WL 1337665 (M.D. Pa. April 4, 2016)

Dec 01 2016

Key Insight: In this case, the court granted in part Plaintiff?s motion for sanctions where ESI was automatically destroyed despite a duty to preserve as the result of Defendant?s employees? failure to forward Plaintiff?s notice of litigation and request for preservation to corporate headquarters. Declining to impose an adverse inference, the court ordered that Defendants would not be allowed to rely on the destroyed records or other evidence designed to show their contents.

Nature of Case: Claims arising from traffic accident

Electronic Data Involved: ESI

Catagory:Case Summaries