Tag:Adequacy of Search/Identification or Collection

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Mastr Adjustable Rate Mortgages Trust v. UBS Real Estate Secs. Inc., No. 12 Civ. 7322(HB)(JCF), 2013 WL 5651290 (S.D.N.Y. Oct.15, 2013)
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Sung v. Mission Valley Renewable Energy, LLC, No. CV-11-5163-RMP, 2013 WL 4523561 (E.D. Wash. Aug. 27, 2013)
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Newill v. Campbell Transportation Co., No. 2:12-cv-1344, 2013 WL 6002349 (W.D. Pa. Nov. 12, 2013)
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Clay v. Consol Penn. Coal Co., No. 5:12CV92, 2013 WL 4854746 (N.D. W. Va. Sep. 11, 2013)
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Master Hand Contractors, Inc. v. Convent of the Sacred Heart of Chicago, No. 1-12-3788, 2013 WL 5940641 (Ill. App. Ct. Nov. 4, 2013)
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James v. UMG Recordings, Inc., No. 11-cv-01613-SI (MEJ), 2013 WL 5978322 (N.D. Cal. Nov. 8, 2013)
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Peerless Indus., Inc. v. Crimson AV LLC, No. 11 C 1768, 2013 WL 1195829 (N.D. Ill. Mar. 22, 2013)
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Mastr Adjustable Rate Mortgages Trust v. UBS Real Estate Secs. Inc., No. 12 Civ. 7322(HB)(JCF), 2013 WL 5745855 (S.D.N.Y. Oct. 23, 2013)
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Home Instead, Inc. v. Florance, No. 8:12CV264, 2013 WL 5979629 (D. Neb. Nov. 8, 2013)
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Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 SRN/SER, 2013 WL 6094600 (D. Minn. Nov. 20, 2013)

Mastr Adjustable Rate Mortgages Trust v. UBS Real Estate Secs. Inc., No. 12 Civ. 7322(HB)(JCF), 2013 WL 5651290 (S.D.N.Y. Oct.15, 2013)

Key Insight: Where review of sample of unproduced documents revealed possibility that more responsive documents had been missed than had been produced, court ordered producing party to re-review at-issue custodians? files and to confer with requesting party regarding expansion of search terms; court rejected producing party?s arguments that its initial review was ??on par with and likely more accurate than typical document reviews,? citing cases and studies finding that human reviewers are disconcertingly error-prone? reasoning in part that producing party ?can, and has, utilized review technologies that can, if used properly, be expected to identify more than a mere half of the potentially responsive documents.?

Nature of Case: Breach of contract, declaratory judgment

Electronic Data Involved: ESI

Sung v. Mission Valley Renewable Energy, LLC, No. CV-11-5163-RMP, 2013 WL 4523561 (E.D. Wash. Aug. 27, 2013)

Key Insight: Where defendants received plaintiff?s production of approximately 3,600 electronic documents less than two weeks before trial was to begin, and defendants were only able to obtain the documents after they arranged for an independent electronic discovery review in response to plaintiff?s prior discovery abuses, court found that the circumstances of case were extraordinary, that plaintiff acted willfully and in bad faith in violating FRCP 26, 37 and the court?s scheduling order, and that analysis of the five relevant factors warranted dismissal of plaintiff?s claims against each defendant with prejudice

Nature of Case: Washington State Securities Act claims, breach of fiduciary duty, negligence, and related claims

Electronic Data Involved: 3,600 electronic documents which, if printed out, would total more than 10,000 pages

Newill v. Campbell Transportation Co., No. 2:12-cv-1344, 2013 WL 6002349 (W.D. Pa. Nov. 12, 2013)

Key Insight: Court found defendant failed to conduct a reasonable investigation for responsive materials prior to serving its Initial Disclosures and responding to Plaintiff?s first requests for production where defendant failed to discover relevant photographs of the accident site taken by a former employee despite knowing that it was ?standard procedure? for such photographs to be taken; responding to Defendant?s claim that it needn?t extend its investigation to former employees, the court noted that ?[a]nalyzing the practical ability of corporations to obtain work-related documents from former employees, courts insist that corporations, at the very least, ask their former employees to cooperate before asserting that they have no control over documents in the former employees’ possession.? Export?Import Bank, 233 F.R.D. at 341 (citations omitted) (emphasis added).

Nature of Case: Jones Act negligence case

Electronic Data Involved: Digital photographs

Clay v. Consol Penn. Coal Co., No. 5:12CV92, 2013 WL 4854746 (N.D. W. Va. Sep. 11, 2013)

Key Insight: Where defendants were dilatory in participating in discovery and did not begin searching for ESI until plaintiff was on the brink of filing his second motion to compel, district court affirmed magistrate judge?s recommendation that plaintiff?s motion for default judgment be denied because there was no showing of bad faith on the part of defendants and prejudice to plaintiff could be alleviated through imposition of less drastic sanctions, such as allowing plaintiff to re-depose certain witnesses at defense expense, allowing plaintiff to exceed the deposition limit, and awarding plaintiff reasonable expenses (including attorneys’ fees) of the motion

Nature of Case: Race discrimination

Electronic Data Involved: ESI

Master Hand Contractors, Inc. v. Convent of the Sacred Heart of Chicago, No. 1-12-3788, 2013 WL 5940641 (Ill. App. Ct. Nov. 4, 2013)

Key Insight: Trial court did not err in dismissing mechanics lien case with prejudice as sanction for plaintiff’s failure to comply with its discovery obligations for approximately 18 months and its violations of seven orders of the court, including three expressly final deadlines to produce electronic discovery materials, as the trial court applied progressive discipline to coerce compliance and gave plaintiff ample opportunities to escape possible discovery sanctions; appellate court criticized plaintiff?s approach to the ESI request, ?under which the company owner — who called himself a ?computer idiot? in open court — self-selected emails relating to the Sacred Heart project instead of using a search tool to find them, and printed them out one at a time, all without supervision of counsel.?

Nature of Case: School building construction litigation

Electronic Data Involved: ESI, including email

James v. UMG Recordings, Inc., No. 11-cv-01613-SI (MEJ), 2013 WL 5978322 (N.D. Cal. Nov. 8, 2013)

Key Insight: Where plaintiffs could surely foresee the need to manipulate royalty data but did not specify production in electronic form, and defendant had already twice produced the documents and argued that production of electronically formatted royalty statements would require creation of new documents not currently in existence, court denied plaintiffs’ motion to compel production of the data in electronic format, stating that plaintiffs’ proffered justification that Excel format would be more convenient “falls far short of the mark”; court further denied plaintiffs’ request for receipts data, finding that the burden of reprogramming royalty database and creating new software to extract information far outweighed usefulness of ordering production given that plaintiffs stated they could discern the data by extrapolation

Nature of Case: Consolidated putative class action for breach of contract and other claims filed by recording artists and producers who alleged that defendant underpaid royalties on digital downloads of plaintiffs’ recordings

Electronic Data Involved: Royalty statements in Excel format, receipts from download transactions with vendors

Mastr Adjustable Rate Mortgages Trust v. UBS Real Estate Secs. Inc., No. 12 Civ. 7322(HB)(JCF), 2013 WL 5745855 (S.D.N.Y. Oct. 23, 2013)

Key Insight: Although court found that U.S. Bank was grossly negligent in failing to institute a litigation hold until eight months after its duty to preserve arose, court denied spoliation sanctions as there was no evidence of bad faith but positive evidence of good faith, and U.S. Bank presented persuasive evidence that no relevant documents were destroyed; court further ruled that litigation hold that U.S. Bank finally did impose was reasonable, as custodians were guided by both business people and counsel as to what to retain and counsel monitored compliance, gathering and reviewing relevant emails in the legal hold folders, substantive emails and attachments were printed out and retained separately and not subject to autodeletion policy

Nature of Case: Breach of contract, declaratory judgment

Electronic Data Involved: ESI

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 SRN/SER, 2013 WL 6094600 (D. Minn. Nov. 20, 2013)

Key Insight: District court affirmed in part magistrate judge?s order (at 2013 WL 5687559) denying plaintiff?s request for forensic examination of laptop computers used by plaintiff during her employment, as defendant produced 56,625 pages of documents from most recently used laptop, and burden and expense of forensic examination of previous laptop outweighed its likely benefit, given that plaintiff did not assert even a belief that relevant information existed on that computer that was not produced from other sources; court reversed in part magistrate judge?s order denying access to text and voice messages, finding that plaintiff demonstrated that ?the scale tips in her favor? in regard to two mobile phones provided by defendant to plaintiff and another witness for work-related purposes, and ordering parties to meet and confer upon protocol to be used in conducting search for responsive text messages and voice messages contained on the two devices

Nature of Case: Employment discrimination

Electronic Data Involved: Work laptops, and text messages and voice messages on certain mobile devices

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