Adequacy of Search/Identification or Collection – Page 13

Riley v. City of Prescott, No. CV-11-08123-PCT-JAT, 2014 WL 641632 (D. Ariz. Feb. 19, 2014)

Dec 01 2014

Key Insight: Court applied five-part test to deny plaintiff’s motion for claim-dispositive sanctions but would allow reasonable attorneys’ fees and adverse inference instruction where city failed to suspend its 45-day retention policy for city employee email and defendant mayor apparently destroyed or failed to preserve relevant email in his private Gmail account, as numerous emails on which the mayor or his assistant were senders or recipients were discovered from third party sources, e.g., Google, Inc., but none were included in defendants’ production

Nature of Case: Wrongful termination

Electronic Data Involved: Email

Pac. Packaging Prods., Inc. v. Barenboim, No. MICV200904320, 2014 WL 2766735 (Mass. Super. Ct. Jan 31, 2014)

Dec 01 2014

Key Insight: After ten days of hearings on Plaintiff?s Emergency Motion for Judgment on All Claims Based upon Defendants? Fraud Upon the Court, court found that defendants violated preservation order and deliberately ignored preliminary injunction requiring defendants to turn over all written or digital materials taken from or generated by plaintiff, or derived in whole or in part from documents generated by plaintiff, that contain customer lists, pricing information or similar information, and not to retain copies of such materials, and that defendants spoliated evidence and committed a fraud upon the court; appropriate sanction was the entry of default against defendants, dismissal of the defendants? counterclaims, and an order requiring defendants to compensate plaintiff for attorneys? fees and costs incurred in litigating the motion; parties to submit memoranda describing their views regarding the extent of the default established and the future course of the litigation

Nature of Case: Distributer sued former employees who formed competing company

Electronic Data Involved: Computers, laptops, hard drives and other electronic storage devices

Metro. Life Ins. Co. v. Ogandzhanova, No. CV-12-00372-PHX-GMS, 2014 WL 2616523 (D. Ariz. June 12, 2014)

Dec 01 2014

Key Insight: Where defendant had testified regarding frequent use of computers but the two computers she produced after being ordered by the court to do so showed very little activity, court found that defendant had willfully failed to comply with court’s order to identify and provide the computers she used during the relevant time period; court further found that defendant failed to produce relevant documents within her control and applied five-factor test to impose sanctions in the form of a permissive adverse inference instruction and payment of plaintiff?s attorneys’ fees and expenses incurred in bringing the motion

Nature of Case: Disability insurance dispute

Electronic Data Involved: Hard drives, ESI

U.S. v. Capitol Supply, Inc., No. 13-mc-0373 (BAH), 2014 WL 1046006 (D.D.C. Mar. 19, 2014)

Dec 01 2014

Key Insight: Where government had requested production in specific electronic formats (Database, Access or Excel) but company produced materials in PDF format that lacked requested detail and was not searchable across multiple documents, court found production insufficient and noted that the fact that company’s databases lacked certain functionality did not relieve company from responding to subpoenas with responsive information in usable, searchable format and directed company to produce responsive information “in a format that is reasonably usable, which includes searchable, just as its databases are presumably designed to respond to search queries”

Nature of Case: Investigation by Office of the Inspector General re whether company violated the False Claims Act; government petitioned for summary enforcement of OIG supboenas to Capitol Supply, Inc.

Electronic Data Involved: Sales data, country-of-origin information

Capital Ventures Int?l v. J.P. Morgan Mortgage Acquisition Corp., No. 12-10085-RWZ, 2014 WL 1431124 (D. Mass. Apr. 14, 2014)

Dec 01 2014

Key Insight: Plaintiff’s request for all RMBS-related documents that defendants previously produced in other lawsuits or to “any congressional body, regulatory agency, law enforcement agency or person” was overbroad and of speculative relevance; court granted motion to compel but adopted defendants’ proposal to run agreed-upon search terms over their productions to the SEC and NY attorney general, deeming such method sufficient to capture materials relevant to pending action; court also extended relevant time period for electronic searches

Nature of Case: Claims under the Massachussetts Uniform Securities Act relating to residential mortgage-backed security (“RMBS”) offerings

Electronic Data Involved: ESI

McNabb v. City of Overland Park, No. 12-CV-2331 CM/TJJ, 2014 WL 1493124 (D. Kan. Apr. 16, 2014)

Dec 01 2014

Key Insight: Court denied motion to compel defendant to produce additional 10,189 responsive emails where plaintiff did not identify any specific discovery request for which she sought to compel production, or any specific objection thereto that she claimed to be invalid, and defendant had already produced five categories of emails totaling over 36,000 documents; court advised that plaintiff must present something more than mere speculation that search of 14 custodians’ email files using 35 proposed search terms was likely to reveal additional responsive emails, and further noted that, on its face, search term list was overly broad and likely to capture many emails having nothing to do with issues in case

Nature of Case: Sexual discrimination, harassment, hostile work environment and retaliation claims

Electronic Data Involved: Email

Shaw Group Inc. v. Zurich Am. Ins. Co., No. 12-257-JJB-RLB, 2014 WL 1891543 (M.D. La. May 12, 2014)

Dec 01 2014

Key Insight: Finding that defendant had failed to obey previous discovery orders by not timely searching for and producing ESI in response to plaintiff’s requests for production and that defendant?s representations regarding compliance were not completely correct, court once again ordered defendant to produce complete responses, without objections or redactions, ordered defendant to pay plaintiff?s expenses incurred in filing second motion, and ordered parties to endeavor to agree on search terms to be used to obtain responsive ESI; in the event parties could not agree to search terms, custodians and date ranges, then defendant must use those proposed by plaintiff

Nature of Case: Insurance dispute

Electronic Data Involved: ESI

Sprint Commc?ns Co., L.P. v. Comcast Cable Commc?ns, LLC, Nos. 11-2684-JWL, 11-2685-JWL, 11-2686-JWL, 2014 WL 1794552 (D. Kan. May 6, 2014)

Dec 01 2014

Key Insight: Evaluating parties’ competing discovery protocols, court noted that defendants had not asked Sprint to collect documents from 60+ custodians, but, rather, faced with Sprint?s failure to identify potential custodians in violation of the agreed discovery order, defendants started suggesting people and asked Sprint either to search those individuals? files or explain why production from particular custodians on list was not necessary; court disapproved of Sprint?s continued failure to work with defendants to reach a reasonable solution, rejected as ?clearly unreasonable? Sprint?s proposal to collect responsive documents from only 12 new custodians, and ordered Sprint to sit down with defendants in a good faith attempt to resolve the issue; court further ordered Sprint to include in its document searches a ?human review? of hard copy documents

Nature of Case: Consolidated cases involving patent infringement claims

Electronic Data Involved: ESI; documents produced in prior litigations; metadata

FDIC v. Bowden, No. CV413-245, 2014 WL 2548137 (S.D. Ga. June 6, 2014)

Dec 01 2014

Key Insight: Where FDIC spent $614,000 to digitally scan about 2.01 terabytes of data or 153.6 million pages of documents after taking over failing bank, and before any written document requests were served, court evaluated parties? competing proposals for conducting e-discovery, discussed the governing standards for manner of document production, formatting issues, and cost-shifting for digital format conversion expenses, and ultimately approved protocol offered by FDIC; court further instructed that, in the event of any further ESI-protocol disagreement or objection to the court?s decision, the parties must first confer and attempt to craft a joint ESI protocol or consent order in light of the principles highlighted in the court?s ruling

Nature of Case: Bank receiver brought bank mismanagement case against 16 of bank’s former directors and officers

Electronic Data Involved: Records of failed bank

Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 12-2350-SAC, 2014 WL 806122 (D. Kan. Feb. 28, 2014)

Dec 01 2014

Key Insight: Court denied in most respects plaintiff’s motion for protective order, finding that plaintiff’s undue burden and expense arguments were unsupported and conclusory; court further denied plaintiff’s alternative proposal to shift some of the uncalculated ESI costs onto defendants as plaintiff failed to show that the disputed ESI production was inaccessible because of undue burden or cost, and because other relevant factors did not weigh in plaintiff’s favor; court further denied plaintiff?s request for a discovery conference or appointment of an ESI master, and ordered the parties to meet and confer regarding the proper method to search custodian hard drives, and suggested the parties consider a clawback provision specifically for ESI harvested after running the parties? respective search terms

Nature of Case: Insurance coverage dispute

Electronic Data Involved: ESI in databases and stored on custodian hard drives

Tag:Adequacy of Search/Identification or Collection