Adequacy of Search/Identification or Collection – Page 9

BancPass, Inc. v. Highway Toll Admin., LLC, No. A-14-CV-1062-SS, 2016 WL 4031417 (W.D. Tex. July 26, 2016)

Dec 01 2016

Key Insight: Where, in email, the parties agreed to use certain search terms and one party produced all such hits except those deemed privileged while the other produced only relevant documents, court indicated that if it were to construe the emails as a binding contract, Defendant would be in breach, but found that it was not a contract and reasoned that there was no evidence that relevant documents were withheld nor that additional searches would produce more responsive documents, and thus denied Plaintiff?s motion to compel

Nature of Case: Defamation

Electronic Data Involved: ESI identified by agreed search terms

Browder v. Albuquerque, No. CIV 13-0599 RB/KBM, 2016 WL 3946801 (D.N.M. July 20, 2016)

Dec 01 2016

Key Insight: Where relevant video was lost as a result of mistakes made by representatives of the defendant who were attempting to pull and preserve the video from the recording system for the first time and where CDs with the footage ?vanished,? the court reasoned that the errors were symptoms of a ?larger problem: an inadequate information management and evidence retention policy? (a point it relied on significantly in its discussion of culpability) and also found that the plaintiff was prejudiced and imposed sanctions allowing Plaintiff to present evidence that the video existed and was lost through negligence and indicated that if Defendant attempted to elicit testimony from a deputy regarding what he saw on the video (that was viewed by several of defendant?s representatives before it was lost), the jury would be instructed to make any inference they believed was appropriate; the court also ordered Defendant to pay Plaintiff?s expenses and fees incurred in bringing the motion

Nature of Case: Traffic accident involving a police officer

Electronic Data Involved: Video footage

Vaughan Co. v. Global Bio-Fules Tech. LLC, No. 1:12-CV-1292(DNH/DJS), 2016 WL 6605070 (N.D.N.Y. May 20, 2016)

Dec 01 2016

Key Insight: Court granted motion to compel inspection of Defendant?s personal computer that was utilized for business where Plaintiff established that relevant information was likely stored there, where the information was potentially ?critical? to Plaintiff?s case (regarding whether Defendant had utilized Plaintiff?s confidential information), where there was ?no other avenue? to obtain the requested discovery, where the costs did not appear substantial, where Plaintiff?s counsel made a good faith effort at alternative resolutions before brining the motion, and?notably?where Defendant had previously agreed to the inspection (but later objected); court also granted access to Defendant?s email accounts, including disclosure of his passwords; as to both repositories, court ordered the parties? to agree on a search protocol/search terms that included allowing Defendant to review the results of the search prior to production

Nature of Case: Defendant’s alleged use of Plaintiff’s confidential files to underbid Plaintiff on various projects

Electronic Data Involved: ESI, email

Yeti Coolers, LLC v. RTIC Coolers, LLC, No. A-15-CV-597-RP, 2016 WL 6916944 (W.D. Tex. Nov. 11, 2016)

Dec 01 2016

Key Insight: Where Defendant resisted searching certain emails arguing undue burden and that it was unlikely that responsive emails would be found but where no evidence of burden was submitted, where not even a cursory search of the emails was undertaken and where there were examples of the sorts of email sought produced from other employees, the court ordered Defendant to conduct the requested search; similarly, where Defendant offered no evidence of the alleged burden to review and produce the at-issue call recordings, where Plaintiff offered to bear the full cost of transcribing the messages, and where the court determined that the likelihood that the calls would be privileged was low, the court ordered Defendant to produce the raw audiofiles of its customer service calls and voicemail; notably, at the outset of its analysis the court noted that at least 10 attorneys had appeared for each party and that it was ?apparent that the issues at stake are significant,? including posing an ?existential risk? to Defendant and therefore concluded that ?any proportionality argument has a high bar to clear to be successful?

Nature of Case: Trademark infringement

Electronic Data Involved: Customer service emails, call recordings

Procom Heating, Inc. v. GHP Group, Inc., No. 1:13-cv-00163-GNS, 2016 WL 8203221 (W.D. Ky. July 8, 2016)

Dec 01 2016

Key Insight: Where Defendant formulated search terms and identified custodians unilaterally before undertaking its search and where plaintiff suspected the results were insufficient based on both the low volume of information produced and the failure to produce certain expected information (based on third parties? productions), the court considered Defendant?s multiple proposals for addressing the issue and determined that starting again, from scratch, was most appropriate; addressing whether the cost was disproportionate, court declined to characterize the costs as ?additional expense,? reasoning that Defendant ?should have resolved these issues before undertaking its unilateral search?

Nature of Case: Patent infringement

Electronic Data Involved: ESI

McQueen v. Aramark Corp. – 201611 (D. Utah, 2016)

Nov 29 2016

Key Insight: Sanctions imposed after defendant’s failure to preserve relevant ESI after receiving a preservation letter from plaintiff.

Nature of Case: Wrongful death.

Electronic Data Involved: ESI work orders and related paper records.

Keywords: Defendant acted with gross negligence, but without intent to deprive the plaintiff of the information’s use in the litigation.

View Case Opinion

Venturedyne v. Carbonyx (ND Ind., 2016)

Nov 15 2016

Key Insight: Specific metrics needed to object to the burden of a key-word search. Defendant objected to document requests on relevancy grounds.

Nature of Case: Contract breach.

Electronic Data Involved: Key-word search of ESI.

Keywords: Cooperation and the negotiation of keywords. Transparency in all aspects of preservation and production of ESI.

View Case Opinion

Johnson v. Serenity Transportation, Inc. (ND Cal, 2016)

Oct 28 2016

Key Insight: Discovery is not disproportionate just because you say so. Insufficient privilege log.

Nature of Case: Class action involving alleged improper classification of independent contractor status.

Electronic Data Involved: Production of emails in response to Plaintiffs’ requests.

Keywords: Produce all documents responsive to Plaintiff’s search terms. Duplicative and not proportional.

View Case Opinion

Oracle America, Inc. v. Google, Inc. (ND Cal, 2016)

Sep 27 2016

Key Insight: Oracle’s lawyers did not read the ESI produced to them, and instead accused Google of withholding critical evidence (that had been produced).

Nature of Case: Copyright infringement.

Electronic Data Involved: ESI produced by Google.

Keywords: This case shows the critical importance of electronic document review. Discovery-concealment misconduct.

View Case Opinion

Blodgett v. Siemens Industry, Inc. (E.D. N.Y., 2016)

Aug 09 2016

Key Insight: allowing additional discover re topics discussed during deposition

Nature of Case: improper termination

Electronic Data Involved: documents and emails

Keywords:

Identified Local Court Rule(s): 37.1, 37.3

View Case Opinion

Tag:Adequacy of Search/Identification or Collection