Tag: Adequacy of Search/Identification or Collection

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Robinson v. City of Arkansas, Kansas, No. 10-1431-JAR-GLR, 2012 WL 603576 (D. Kan. Feb. 24, 2012)
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Thermotek, Inc. v. Orthoflex, Inc., No. 3:11-cv-870-D (BF), 2015 WL 4138722 (N.D. Tex. July 7, 2012)
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Sloan Valve Co. v. Zurn Indus., Inc., No. 10-cv-204, 2012 WL 1886353 (N.D. Ill. May 23, 2012)
4
FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., —F. Supp. 2d—, 2012 WL 4888473 (D.D.C. Oct. 16, 2012)
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In re Porsche Cars N. Am., Inc., No. 2:11-md-2233, 2012 WL 4361430 (S.D. Ohio Sept. 25, 2012)
6
Coquina Invs. v. Rothstein, No. 10-60786-Civ., 2012 WL 3202273 (S.D. Fla. Aug. 3, 2012)
7
Lechase Constr. Servs. LLC v. Info. Advantage, Inc., NO. 2011/7765, 2012 WL 12294457 (N.Y. Sup. Ct. Oct. 4, 2012)
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Davis v. Rouse, No. WDQ-08-cv-3106, 2012 WL 3059569 (D. Md. July 25, 2012)
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Lake Village Healthcare Ctr., LLC v. Hatchett, 407 S.W. 3d 521 (Ark. 2012)
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Atlas Resources, Inc. v. Liberty Mut. Ins. Co., No. CIV 09-1113 WJ/KBM, 2011 WL 10563364 (D.N.M. Sept. 8, 2011)

Robinson v. City of Arkansas, Kansas, No. 10-1431-JAR-GLR, 2012 WL 603576 (D. Kan. Feb. 24, 2012)

Key Insight: Addressing the sufficiency of defendant?s search for responsive ESI, among other discovery disputes, court found that defendant failed to conduct a reasonable search and ordered additional searching as specified by the court and that defendant produce mirror images of the computers and external drives of a former supervisor for defendant that was particularly relevant to the litigation (the court called the failure to search his computers ?inexcusable and inexplicable?); court granted protective order precluding defendant?s expert from requirement to produce hardware (computers, etc.) already subject to production by defendant pursuant to court?s order where such duplication was unnecessary and would unnecessarily increase costs

Nature of Case: civil rights and employment law

Electronic Data Involved: ESI

Thermotek, Inc. v. Orthoflex, Inc., No. 3:11-cv-870-D (BF), 2015 WL 4138722 (N.D. Tex. July 7, 2012)

Key Insight: For Defendants? discovery failures, including gross negligence in the identification and collection of potentially relevant documents (as a result of an individual defendant?s attempts to identify and collect responsive documents himself) and a ?cavalier attitude towards his discovery obligations? (as evidenced by the ?repeated failure? to conduct a proper document collection? and ?lack of candor regarding their document productions,? e.g., failure to indicate that certain produced emails were not ?the actual transmittal communications? that originally accompanied invoices), the court declined to impose severe sanctions absent evidence of bad faith – although the request was denied without prejudice – and ordered Defendants to pay reasonable expenses and fees incurred by Plaintiff that were attributable to Defendants? discovery misconduct, which Plaintiff represented could exceed $100,000

Nature of Case: Breach of contract, breach of warranty, unfair competition, fraud

Electronic Data Involved: ESI, including QUickbooks

Sloan Valve Co. v. Zurn Indus., Inc., No. 10-cv-204, 2012 WL 1886353 (N.D. Ill. May 23, 2012)

Key Insight: Finding defendants? search efforts inadequate, court ordered discovery re-opened and that defendant conduct specific additional discovery, including additional searches on specific repositories, and provide specific information regarding how its search efforts were conducted and by whom; the court also provided a good discussion of preservation obligations, but ultimately concluded that additional information was necessary to make a determination regarding the reasonableness of defendants efforts; ultimately, court declined to impose drastic sanctions, but ordered additional discovery and that defendants pay monetary sanctions (attorneys? fees and cost)

Nature of Case: Patent infringement

Electronic Data Involved: ESI

FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., —F. Supp. 2d—, 2012 WL 4888473 (D.D.C. Oct. 16, 2012)

Key Insight: Where FTC sought to compel defendant to search for and produce responsive ESI on backup tapes, the court resolved the question of what standard must be applied to properly analyze the producing party?s claims of burden (Rule 26(b)(2)(B) ?good cause? to overcome the burden shown by the responding party v. the standard established in FTC v. Texaco Inc., 555 F.2d 862 (DC Cir 1977) ?a showing that compliance with the subpoena ?threatens to unduly disrupt or serious hinder normal operations of a business??) and determined that in light of the narrowed request, the defendant had not established a sufficient burden and thus ordered defendant to conduct a search of the at-issue backup tapes and to produce any non-privileged materials

Nature of Case: Administrative Subpoena

Electronic Data Involved: Backup tapes

In re Porsche Cars N. Am., Inc., No. 2:11-md-2233, 2012 WL 4361430 (S.D. Ohio Sept. 25, 2012)

Key Insight: Court addressed a number of discovery issues related to Plaintiffs? motion to compel production and, among other things: 1) ordered production of the parameters of Defendants? searches where evidence indicated the possibility that Defendants made unilateral decisions to limit their search/production, where the parties disputed the meaning of certain search terms, and where the dearth of emails produced ?weighed in favor? of disclosing the search efforts; and 2) ordered defense counsel to certify that they had completed a reasonable inquiry and provided examples of the sort of information that should be included in such a certification

Nature of Case: Product Liability

Electronic Data Involved: ESI; search parameters; certification of reasonable inquiry

Coquina Invs. v. Rothstein, No. 10-60786-Civ., 2012 WL 3202273 (S.D. Fla. Aug. 3, 2012)

Key Insight: Court found that counsel for Defendant ?acted negligently in failing to comply with its discovery obligations in this case? and that Defendant ?acted willfully in failing to comply with its discovery obligations and assist its outside counsel to properly litigate this case? and ordered that certain adverse facts were established for purposes of this action and that counsel and Defendant pay Plaintiff?s reasonable attorney?s fees and costs associated with its fourth and fifth motion for sanctions; discovery violations identified included: late (including after trial) production of relevant documents, counsel?s failure to produce relevant evidence ?in a manner that preserved the documents qualities? (i.e., with highly relevant formatting changes (e.g. no color) and without metadata), both Defendant and counsel?s failure to ?conduct an adequate search,? and the conspicuous absence of Defendant?s in-house counsel in assisting or supervising the litigation; court also noted that ?[i]n many ways, this is a case of too many cooks spoiling the broth? where the defense included two firms, hundreds of lawyers, and a consultant that only one firm was aware of, for example

Nature of Case: Fraud

Electronic Data Involved: ESI

Lechase Constr. Servs. LLC v. Info. Advantage, Inc., NO. 2011/7765, 2012 WL 12294457 (N.Y. Sup. Ct. Oct. 4, 2012)

Key Insight: Court granted Plaintiff?s request for an order approving the use of key words to locate responsive documents and instructed that if Plaintiff and/or its counsel was capable of searching both email and attachments, they may proceed with ?self-collection? but that if they could not, a vendor would be required to run the searches; court encouraged cooperation in determining keywords to be utilized

Electronic Data Involved: ESI

Davis v. Rouse, No. WDQ-08-cv-3106, 2012 WL 3059569 (D. Md. July 25, 2012)

Key Insight: Where defendant produced more than 61,000 pages of emails but, when faced with Plaintiff?s motion for spoliation sanctions, could not explain how the search for ESI had been conducted (by a vendor) and subsequently produced only 11,411 pages of emails after being ordered to re-run the search, the court imposed sanctions of reasonable attorneys? fees and costs incurred by Plaintiff?s counsel to review the initial large production of emails containing many non-responsive documents and found counsel for plaintiff was also entitled to recover ?some proportional and reasonable? attorneys? fees and costs for litigating the underlying motion for sanctions which brought the overproduction to light

Nature of Case: Allegations of assault pursuant to 42 USC 1983

Electronic Data Involved: Emails

Lake Village Healthcare Ctr., LLC v. Hatchett, 407 S.W. 3d 521 (Ark. 2012)

Key Insight: Trial court did not err when it struck part of defendants’ answers as sanction for discovery violations where trial court’s order specifically detailed the opportunities afforded defendants to either comply with the email request or furnish a basis upon which the court could determine they were trying to comply with the request, and trial court found that defendants failed to produce the emails in response to the discovery request, failed to produce the emails when ordered by the court, failed to timely notify the court of compliance problems, failed to furnish sufficient information of their good faith efforts, and failed to furnish information regarding when compliance could be expected

Nature of Case: Wrongful death, negligence, breach of fiduciary and confidential duty, medical malpractice

Electronic Data Involved: Email

Atlas Resources, Inc. v. Liberty Mut. Ins. Co., No. CIV 09-1113 WJ/KBM, 2011 WL 10563364 (D.N.M. Sept. 8, 2011)

Key Insight: For Defendant?s and counsel?s discovery violations, including delayed production of relevant information, wrongful certification that discovery was complete, producing a 500-page document 35 times, and failing to conduct adequate searches of responsive information, court evaluated the Enrenhaus factors and imposed monetary sanctions to be paid by both Defendant and its counsel; court?s analysis was particularly critical of counsel who the court concluded had ?abdicated its responsibility to exercise oversight of the discovery process? and who the court found to be subject to sanctions pursuant to both Rule 37 and 26

Nature of Case: Claims arising from contract for providing worker?s compensation insurance and claims administration

Electronic Data Involved: ESI

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