Procaps S.A. v. Patheon, Inc., No. 12-24356-CIV, 2015 WL 1880346 (S.D. Fla. Apr. 24, 2015)

In this opinion, the court addressed Defendant’s motion to take the deposition of the court-appointed, neutral, computer forensic expert who conducted a forensic analysis of Plaintiff’s electronic media and discovered a number of deletions. Plaintiff and Defendant differed regarding the meaning of the expert’s report and filed competing summaries. Accordingly, Defendant sought to conduct a deposition of the expert. The court granted the motion, noting the importance of the deposition in assisting the court to understand the issues before it and ordered a specific deposition protocol, including that the Special Master conduct a portion of the questioning.

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Crews v. Avco Corp., No. 70756-6-I, 2015 WL 1541179 (Wash. Ct. App.  Apr. 6, 2015)

In this case, the trial court held Defendant in contempt and ultimately imposed a “death penalty order” for discovery violations, including the failure to produce relevant information.  Notably, the trial court rejected Defendant’s reliance on its document retention policy as an explanation for why the information was unavailable.  On appeal, the appellate court affirmed the imposition of sanctions but remanded for amendment of the final judgment to reflect any offsets authorized by statute.

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Perez v. Metro Dairy Corp., No. 13 CV 2109(RML), 2015 WL 1535296 (E.D.N.Y. Apr. 6, 2015)

Plaintiffs in this collective action sought spoliation sanctions for Defendants’ failure to produce certain relevant evidence, including payroll records, W-2s, cashier sheets, etc.  Defendants objected to the motion on the grounds that “all of their books, records and computers were seized” pursuant to the court’s order in a different case and that there was no opportunity to make any copies or back ups.  Accordingly, the court reasoned that Defendants had not destroyed their records and found that “[u]nder the specific circumstances of this case … defendants did not have an obligation to copy their books and records before complying with the court order.”  The court also reasoned that even if Defendants did have an obligation to preserve, there was no evidence of Defendants’ requisite culpable state of mind.  Plaintiffs’ motion for sanctions was denied.

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Blue Sky Travel & Tours, LLC v. Al Tayyar, —Fed. Appx.—, 2014 WL 1451636 (4th Cir. Mar. 31, 2015)

In this case, a magistrate judge imposed severe sanctions for Defendants’ failure to preserve “all documents” once litigation began.  Specifically, the magistrate judge held that “once litigation began, [Defendants] had a duty to stop its document retention policies ‘and to preserve all documents because you don’t know what may or may not be relevant.’ (Emphasis added.)”  The sanction was upheld by the district court and resulted in a $10 million award for lost profits damages.  On appeal, however, the Fourth Circuit found that the “standard applied by the magistrate judge constituted an abuse of discretion, because a party is not required to preserve all its documents but rather only documents that the party knew or should have known were, or could be, relevant to the parties’ dispute.”  Accordingly, the circuit court vacated the lower court’s profit-based damages award and remanded the case for a determination regarding: 1) when Defendants should have known that the at-issue evidence  (original invoices) could be relevant; 2) when the at-issue evidence was destroyed; and 3) whether a new trial on lost profits damages was necessary.

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Colosi v. Jones Lang LaSalle Amers. Inc., 781 F.3d 293 (6th Cir. 2015)

In this opinion, the court addressed the recovery of taxable costs related to e-Discovery and concluded that “a plain reading of the statute authorizes courts to tax the reasonable cost of imaging, provided the image file was necessarily obtained for use in the case.”  Accordingly, the circuit court affirmed the lower court’s award related to the cost of imaging Plaintiff’s personal computer. Read More

Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd., No. 1-11-cv-824, 2015 WL 631045 (S.D. Ohio Feb. 12, 2015)

In this case, the court addressed several discovery issues, including the question of when Defendant’s duty to preserve arose.  The Intervenor/Counter Defendant asserted the duty arose in 2002.  Defendant—an Australian Corporation—asserted the duty could no t have arisen before August 2012, when it consented to U.S. jurisdiction and, “even if it had, it was not before [Defendant] was served on December 8, 2011.” Acknowledging that the defendant was not excused from the preservation obligation merely because it is a foreign company, the court nonetheless determined that because Defendant was an Australian company with no presence or significant sales in United States and because Australia was the anticipated jurisdiction of “License-related disputes,” the duty to preserve arose when Defendant was served with the complaint in December, 2011:

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Rio Tinto PLC v. Vale S.A., —F.R.D.—, 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015)

Taking up the topic of technology-assisted review (“TAR”), Magistrate Judge Andrew Peck’s most recent opinion declares that “it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” Despite this, there remain open issues surrounding the use of TAR, including, as Magistrate Judge Peck noted, the question of “how transparent and cooperative the parties need to be with respect to the seed or training set(s).” And, while this opinion did not resolve that question (because the parties in the present case agreed to “a protocol that discloses all non-privileged documents in the control sets”), it does provide some notable commentary on the issue

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