Adequacy of Search/Identification or Collection – Page 12

Ingrid & Isabel, LLC v. Baby Be Mine, LLC, No. 13-cv-01806, 2014 WL 1338480 (N.D. Cal. Apr. 1, 2014)

Dec 01 2014

Key Insight: Court denied issue preclusion sanctions without prejudice, ordering defendants to pay monetary sanctions of $20,444, produce all hard drives and any other electronic storage media subject to court-approved protocol for inspection, and provide plaintiff’s experts with access to defendants’ various e-mail, Amazon, Twitter, Facebook and eBay accounts, in light of serious concern as to whether defendants met their discovery obligations and real danger that evidence may be destroyed

Nature of Case: Breach of settlement agreement resolving trademark infringement and unfair competition claims

Electronic Data Involved: Defendants’ hard drives and various e-mail, Amazon, Twitter, Facebook and eBay accounts

Bailey v. Scoutware, LLC, No. 12-10281, 2014 WL 1118372 (E.D. Mich. Mar. 21, 2014)

Dec 01 2014

Key Insight: Because defendant was able to examine the subject cell phone with its expert, court ruled that plaintiff should also have the ability to examine the phone to determine if additional relevant text or voicemail messages exist or if there is evidence that text or voicemail messages were deleted, and ordered defendant to produce the current and old cell phones to plaintiff’s expert; court deferred ruling on other requested sanctions as premature and found that neither side was entitled to attorneys’ fees in connection with the motion

Nature of Case: Michigan Whistleblower Protection Act and breach of contract

Electronic Data Involved: Text messages and voicemail messages on cell phone of plaintiff’s former co-worker

Didier v. Abbott Labs, No. 13-2046-JWL, 2014 WL 219851 (D. Kan. Jan. 21, 2014)

Dec 01 2014

Key Insight: Finding that steps taken by defendants to locate responsive documents and their continued effort to work with plaintiff and supplement their production appeared sufficient, court declined to impose drastic sanctions requested by plaintiff but did allow plaintiff to re-depose particular witness as to emails that were produced after the witness’s deposition since plaintiff may have been prejudiced by her inability to question the witness regarding the content of those emails

Nature of Case: Employment discrimination

Electronic Data Involved: ESI including text messages

Knickerbocker v. Corinthian Colleges, No C12-1142JLR, 2014 WL 1356205 (W.D. Wash. Apr. 7, 2014)

Dec 01 2014

Key Insight: Court found that Defendant and its counsels? ?lackluster search for documents, failure to implement a litigation hold, deletion of evidence, refusal to cooperation with Plaintiffs in the discovery process (particularly as evidenced by its withholding of information regarding both the backup tapes and its interpretation of the parties? Stipulated Order), reliance on a recklessly false declaration, shifting litigation positions, and inaccurate representations to the court constitute bad faith or conduct tantamount to bad faith? and ordered payment of Plaintiffs? attorneys fees ?incurred due to Corinthian?s bad faith discovery practices? and also ordered fines against Defendant ($25,000) and its counsel ($10,000)

Nature of Case: Employment Litigation (discrimination, hostile work environment)

Electronic Data Involved: ESI, including email, ESI on backup tapes

Koninklijke Philips N.V. v. Hunt Control Sys., No. 11-3684 DMC, 2014 WL 1494517 (D.N.J. Apr. 16, 2014)

Dec 01 2014

Key Insight: Where Defendant sought to take a 30(b)(6) deposition to inquire regarding whether Plaintiff was ?using the appropriate search tools for ESI discovery,? based on Defendant?s expert?s determination that Plaintiff had ?some of most (sic) sophisticated and comprehensive state-of-the-art document search and location tools? and the assertion that ?Philips refuses to use these tools? and where Plaintiff indicated that it had always used ?a custodian-based approach to collecting ESI[ ],? and that it outsourced its collection to Microsoft Online Services and did not have a contract that permitted the type of searching and collecting suggested by the defendant, the court found that Plaintiff had adequately established the reasonableness of its approach and also reasoned that while the deposition itself would not be a burden, it would open the door to potentially burdensome additional discovery that was unlikely to be productive and thus was not warranted

Nature of Case: Appeal of decision of Trademark Trial and Appeal Board

Electronic Data Involved: ESI

Hawley v. Mphasis Corp., No. 12 Civ. 592(DAB)(JLC), 2014 WL 3610946 (S.D.N.Y. July 22, 2014)

Dec 01 2014

Key Insight: Court declined to impose sanctions for spoliation of contents of Plaintiff?s work laptop (by deleting the data and reissuing the computer to another employee) where despite the court?s finding that defendant had been grossly negligent in its failure to preserve, a presumption of relevance was not warranted and plaintiff failed to demonstrate that the lost documents would have supported his claim; regarding the destruction of plaintiff?s supervisor?s laptop (who had resigned), the court ordered an adverse inference where the court found that the failure to preserve was grossly negligent and where defendant?s conduct was sufficiently egregious to warrant a finding that the evidence was unfavorable to it (notably, the court indicated it ?[did] not matter? who had wiped the hard drive because defendant should have taken steps to preserve the data well in advance of the supervisor?s resignation); court ordered an adverse inference for defendant?s failure to produce certain evidence

Nature of Case: Employment discrimination

Electronic Data Involved: Contents of plaintiff’s laptop and supervisor’s laptop

Freedman v. Weatherford Int?l, Ltd., No. 12 Civ. 2121(LAK)(JCF), 2014 WL 3767034 (S.D.N.Y. July 25, 2014)

Dec 01 2014

Key Insight: Court considered plaintiffs? motion to compel production of ?certain reports comparing the results of the defendants document search and production in this case with? the search terms proposed by the plaintiff and with searches and productions related to prior investigations but denied the motion upon defendant?s showing that preparing only a sample report took ?several weeks, over 250 hours of vendor time, and 750 hours of computer processing time? and where plaintiffs offered ?no adequate factual basis for their belief that the current production [was] deficient? in support of what amounted to a request for ?discovery on discovery?; court acknowledged, however, that ?there are circumstances where such collateral discovery is warranted?

Nature of Case: False and misleading statements in violation of securities laws

Electronic Data Involved: ESI

Dewhurst v. Century Aluminum Co., No. 2:09-1546, 2014 WL 555164 (S.D. W. Va. Feb. 12, 2014)

Dec 01 2014

Key Insight: Court denied defendant’s motion for spoliation sanctions based on union’s failure to preserve evidence, noting that union appeared to have been diligent in trying to gather up relevant documents once litigation commenced, there was no way to determine when the missing records were destroyed, and union was autonomous organization and none of the existing plaintiffs shouldered any blame for the union’s negligence

Nature of Case: Class action regarding defendant’s obligation to restore certain retiree healthcare benefits

Electronic Data Involved: E-mail and other ESI

In re Text Messaging Antitrust Litig., 46 F. Supp. 2d 788 (N.D. Ill. 2014)

Dec 01 2014

Key Insight: Court declined to impose sanctions against wireless carrier for employee’s deletion of particular email that referenced collusion, notwithstanding that deletion was intentional and done for the purpose of concealing the contents of the email, because record did not reflect that author of deleted email was in a position to have knowledge of or participate in any collusion between the wireless carriers, and thus plaintiffs could not show that missing email would have been adverse to wireless carrier

Nature of Case: Class action

Electronic Data Involved: Emails

Quantlab Techs. Ltd. (BGI) v. Godlevsky, No. 4:09-cv-4039, 2014 WL 651944 (S.D. Tex. Feb. 19, 2014)

Dec 01 2014

Key Insight: After two-day evidentiary hearing, court analyzed conduct of various individuals and inferred bad faith as to each based on particular facts and concluded generally that lost evidence was moderately relevant and loss was moderately prejudicial; without stronger showing of bad faith or more definitive demonstration of relevance and prejudice, court declined to impose litigation-ending sanctions but would give spoliation instruction to be crafted at the same time as jury instructions

Nature of Case: Copyright infringement, breach of contract, misappropriation of trade secrets, fraud

Electronic Data Involved: Developer work stations, hard drives, flash drives, source code

Tag:Adequacy of Search/Identification or Collection