Case Summaries – Page 86 – Electronic Discovery Law

In re Fluoroquinolone Prods. Liab. Litig., MDL. No. 15-2642 (JRT), 2016 WL 4045414 (D. Minn. July 20, 2016)

Dec 01 2016

Key Insight: Court ruled that defendants may, under the proportionality factors in 26(b)(1), limit their search to databases and central repositories rather than engage in custodial searches for all cases at the Defendant Fact Sheet (DFS) stage of the MDL due to the ?significant burden of the proposed custodial-file searches? and the less-than-certain benefits of such searches.? The Court noted Defendant?s acknowledgement that custodial searches would likely be ?warranted for a narrower group of cases at a later stage? and that plaintiffs were free to seek permission to engage in further discovery if information available in the structured databases was insufficient.

Nature of Case: Products Liability

Electronic Data Involved: ESI

FTC v. Directv, Inc., No. 15-cv-01129-HSG (MEJ), 2016 WL 3351945 (N.D. Cal. June 9, 2016)

Dec 01 2016

Key Insight: Following the parties? court-ordered meet and confer to achieve proportionality in Defendant?s requests for production of complaints from FTC customers regarding Defendant?s competitors, Defendant reduced the number of competitors about which it sought information from 10 to 3, but court also approved Plaintiff?s proposal to produce only a random sampling, even from the reduced list of competitors, where the proposal ?more closely comport[ed] with Rule 26?s demand for proportionality? noting that the relevance of the at-issue materials was ?largely speculative?

Electronic Data Involved: Customer complaints submitted to FTC re: Defendant’s competitors

Archer Daniels Midland Co. v. Chemoil Corp., 15-2199, 2016 WL 9051173 (C.D. Ill. Oct. 19, 2016)

Dec 01 2016

Key Insight: Court denied Defendant?s motion to compel production of emails from Plaintiff?s former employee where Plaintiff?s initial production included some communications from the at-issue employee, where Plaintiff had already conducted a second search that did not yield additional documents, where the emails of the former employee had been moved off of active servers thus requiring the initiation of disaster recovery protocols to conduct an additional search, and where the emails of other parties to the potentially relevant communications remained on the active servers and had also been searched; court also noted that Defendant had deposed the former employee for 6 hours

Electronic Data Involved: Email of former employee

Intercontinental Great Brands, LLC v. Kellog N.A. Co., No. 13 C 321, 2016 WL 316865 (N.D. Ill. Jan. 26, 2016)

Dec 01 2016

Key Insight: Court declined to allow costs for OCR, ?concordance hosting,? ??volume mastering,? ?unitization,? ?document imaging,? ?CD duplication,? and ?media formatting,?? but did allow costs associated with TIFF and PDF conversion

Nature of Case: Patent

Electronic Data Involved: Taxable Costs related to e-Discovery

Thomas v. Butkiewicus, No. 3:13-CV-747 (JCH), 2016 WL 1718368 (D. Conn. Apr. 29, 2016)

Dec 01 2016

Key Insight: Addressing question of spoliation related to surveillance video of prison assaults, court concluded that ?traditional? spoliation analysis (as opposed to analysis pursuant to newly amended FRCP 37(e))

Nature of Case: Claims arising from assault in prison

Electronic Data Involved: Surveillance video

Navajo Nation v. Urban Outfitters, No. 12cv0195, 2015 WL 11089521(D.N.M. June 10, 2016)

Dec 01 2016

Key Insight: Court compelled limited production from backup tapes and declined to shift costs despite Defendant?s production of archived emails where Defendant failed to turn off its auto-purge and the purged emails would not, therefore, be located in the archive and where Defendant failed to specify the alleged burden and expense and Plaintiff agreed to limit their request; Defendant was required to search its SharePoint site where it utilized the site to communicate with employees, where many documents referred to the SharePoint, and where Defendant did not claim that the information was not reasonably accessible

Nature of Case: Trademark

Electronic Data Involved: Backup tapes, SharePoint

Moll v Telesector Res. Grp., Inc., No. 04-CV-0805S(Sr), 2016 WL 6095792 (W.D.N.Y. Oct. 19, 2016)

Dec 01 2016

Key Insight: Addressing Plaintiffs? objection to a request for, essentially, all of Plaintiff?s Facebook content, the court cited Giacchetto v. Patchogue-Medford Union Free School Dist., No. 293 F.R.D. 112 (E.D.N.Y. 2013) for the proposition that ?routine status updates and/or communications on social networking websites are not, as a general matter, relevant to [plaintiff?s] claim for emotional distress damages, nor are such communications likely to lead to the discovery of admissible evidence regarding the same,? but further reasoned that ?post specifically referencing? Plaintiff?s emotional distress or at-issue treatment were discoverable and should be produced

Nature of Case: Motion to compel in case alleging discrimination, harassment, hostile environment, retaliation and unequal pay in violation of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law and the Equal Pay Act

Electronic Data Involved: Social media/social network (Facebook)

Javeler Marine Servs. LLC v. Cross, 175 F.Supp.3d 756 (S.D. Tex. 2016)

Dec 01 2016

Key Insight: Addressing taxable costs, court concluded ?generally? that ?creating forensic images of Defendants? devices and conversion of the relevant imaged copies to TIFF format are within the rubric of ?making copies of any materials? under ? 1920(4) in this case, but are taxable costs only upon a showing they were ?necessarily obtained for use in the case.?? Court also held that the statute ?does not authorize taxation of expenses attributable to keyword searches.? Ultimately, the court concluded that in the present case the ?factual record? was ?insufficient? to determine the recoverable amount and ordered the submission of a revised, and more detailed, bill of costs.

Nature of Case: Claims based on alleged misappropriation of confidential information

Electronic Data Involved: Taxable Costs

Colonial Bancgroup, Inc. v. Pricewaterhousecoopers LLP., No. 2:11-cv-746-WKW, 2016 WL 9687001 (M.D. Ala. Jan. 22, 2016)

Dec 01 2016

Key Insight: Where plaintiff sought production of specific folders from e-mail inboxes after defendant had already produced e-mails from those custodians as identified by keyword search terms r, the court found the request duplicative and denied plaintiff?s request. Where plaintiff sought to compel additional searches likely to capture information well beyond that to which plaintiff was entitled and resisted a compromise offer of running the searches with restrictive terms designed to weed out irrelevant information, the court granted the request for additional searches but also granted defendant?s request to include limiting terms to restrict the capture of irrelevant data. Where plaintiff requested a sworn affidavit detailing defendant?s litigation hold efforts including the ?specific actions? which hold notice recipients were directed to take and any enforcement efforts, the court agreed with defendant that specific actions and enforcement efforts were subject to attorney-client privilege but directed plaintiff to ?provide this information via ?sworn affidavit? in a manner which, does not invoke the work product doctrine or violate the attorney-client privilege OR to make a specific legal and factual showing [] as to any work product objection or attorney-client privilege claim? and also ordered production of the other requested information, including custodian names and document types subject to the hold.

Nature of Case: Professional Negligence

Electronic Data Involved: e-mail

Whitesell Corp. v. Electrolux Home Prods., Inc., NO. CV 103-50, 2016 WL 1317673 (S.D. Ga. Mar. 31, 2016)

Dec 01 2016

Key Insight: Where promised emails were not produced but Defendant ultimately produced all documents relevant to the alleged spoliation, including ?preservation communications to document custodians, a list of custodians who were searched, the search terms used to conduct the search, and project documents and materials relating to such searches,? and also submitted a representative for an extensive Rule 30(b)(6) deposition, the court found Plaintiff?s request to compel production of ?every privileged document described as concerning data collection?[wa]s overly broad, unduly burdensome and ha[d] not been shown to relate to the issue at the forefront of this entire exercise?the missing Leon emails? despite acknowledging that ?otherwise privileged documents may be discoverable upon a preliminary showing of spoliation.?

Electronic Data Involved: Information related to preservation efforts, etc. where Plainitff alleged spoliation by Defendant and sought to compel production of privileged information

Catagory:Case Summaries