Tag:Adequacy of Search/Identification or Collection

1
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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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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Atlas Resources, Inc. v. Liberty Mut. Ins. Co., No. CIV 09-1113 WJ/KBM, 2011 WL 10563364 (D.N.M. Sept. 8, 2011)
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Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007)
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Wingnut Films, Ltd. v. Katja Motion Pictures Corp., 2007 WL 2758571 (C.D. Cal. Sept. 18, 2007)

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

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

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

Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007)

Key Insight: Court concluded that defendants’ duty to preserve was triggered by filing of complaint, and not by earlier demand letters that were equivocal and “less than adamant”; court further denied most of the sanctions requested but imposed $5,000 monetary sanction for defendants? failure to preserve hard drives of departed employees and failure to confirm the accuracy and completeness of production; court further rejected plaintiff’s argument that Zubulake V created a new obligation for litigants to conduct “system-wide keyword searches”

Nature of Case: Trademark infringement

Electronic Data Involved: Email

Wingnut Films, Ltd. v. Katja Motion Pictures Corp., 2007 WL 2758571 (C.D. Cal. Sept. 18, 2007)

Key Insight: Where defendant did not conduct a reasonably diligent search for numerous categories of documents that court ordered be produced, did not conduct a reasonably diligent search for ESI, and did not suspend its document destruction policy or otherwise take adequate steps to preserve documents, among other forms of relief court ordered defendant to retain at its own expense an outside vendor, to be jointly selected by the parties, to collect responsive ESI; court further indicated it would impose $125,000 in sanctions representing reasonable amount of attorneys’ fees expended by plaintiff as result of defendant’s discovery misconduct

Nature of Case: Licensing and distribution claims, breach of fiduciary duty, unfair competition, fraud

Electronic Data Involved: Email and other electronic documents

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