Tag: CASE SUMMARIES

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No Sanctions For Failure to Preserve Where Deleted Call Recordings “would not have been supportive of Plaintiff’s claim”
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Special Master Analyzes Privilege Search Terms, Addresses Objection that they were Overbroad
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Opinion Highlights Questions Surrounding Proper Predictive Coding Protocols
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Court Orders Adverse Inference for Failure to Prevent Automatic Deletion
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Case Update: For Spoliation, Court Orders $250,000,000 “to be applied as a credit against Rambus’s [$349 million] judgment against SK hynix”
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For Good Cause Shown, Plaintiffs No Longer Required to Utilize Predictive Coding
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Fourth Circuit Addresses Taxable Costs Related to ESI
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Citing Proportionality, Court Declines to Require Defendant to Redo Discovery Utilizing Only Predictive Coding
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Volume, Expense Insufficient to Show ESI is Inaccessible, “Rather, the cost or burden must be associated with some technological feature that inhibits accessibility.”
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Court Imposes Adverse Inference for Failure to Preserve Facebook

No Sanctions For Failure to Preserve Where Deleted Call Recordings “would not have been supportive of Plaintiff’s claim”

Cottle-Banks v. Cox Commc’ns, Inc., No. 10cv2133-GPC (WVG), 2013 WL 2244333 (S.D. Cal. May 21, 2013)

In this putative class action, Plaintiff sought sanctions for Defendant’s failure to preserve potentially relevant customer call recordings.  Although the court found that Defendant was negligent in its failure to preserve (and thus had the requisite “culpable state of mind”), no sanctions were ordered because the court concluded that the call recordings would not have supported Plaintiff’s case.

In September 2010, Plaintiff filed her initial complaint alleging Defendant’s violation of the federal Cable Act by charging rental fees for cable converter boxes and/or remote controls that class members “did not affirmatively request by name.”  In July 2011, Plaintiff filed an amended complaint, after her initial complaint was dismissed.

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Special Master Analyzes Privilege Search Terms, Addresses Objection that they were Overbroad

Dornoch Holdings Int’l, LLC v. Conagra Foods Lamb Weston, Inc., No. 1:10-cv-00135 TJH, 2013 WL 2384235 (D. Idaho May 1, 2013)

In this case, a Special Master was directed to obtain ESI (more than one million documents) from a bankruptcy trustee, to review it for privilege, and to prepare a privilege log. The documents were screened utilizing keyword search terms.  Upon production of the resulting privilege log, Defendants objected that the terms used were overly broad and that the log contained non-privileged documents.  The Special Master therefore conducted an analysis of the terms used and made recommendations to address the objection.

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Opinion Highlights Questions Surrounding Proper Predictive Coding Protocols

Gordon v. Kaleida Health, No. 08-CV-378S(F), 2013 WL 2250579 (W.D.N.Y. May 21, 2013)

In this case, the court considered Plaintiffs’ motion “to compel Defendants to meet and confer with respect to establishing an agreed protocol for implementing the use of predictive coding software” and for an order that if the parties could not agree on an ESI protocol, that each side would submit their proposal for the court’s determination as to which should be adopted.  Although Defendants initially objected to meeting and conferring with Plaintiffs and their experts based on Plaintiffs’ expert’s prior work for Defendants in the same case, the issue was ultimately resolved when Defendants indicated they were prepared to meet and confer (perhaps motivated by the court’s denial of their motion to disqualify Plaintiffs’ experts).  Despite the relatively simple resolution of Plaintiffs’ motion to compel, the parties’ arguments raised interesting questions related to the level of cooperation required when one side has chosen to utilize predictive coding.

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Court Orders Adverse Inference for Failure to Prevent Automatic Deletion

Pillay v. Millard Refrigerated Servs., Inc., No. 09 C 5725, 2013 WL 2251727 (N.D. Ill. May 22, 2013)

In this case, the court granted Plaintiff’s motion for an adverse inference instruction where Defendant failed to prevent the automatic deletion of relevant data despite notice of impending litigation and receipt of a specific preservation notice, sent directly to Defendant’s general counsel.

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Case Update: For Spoliation, Court Orders $250,000,000 “to be applied as a credit against Rambus’s [$349 million] judgment against SK hynix”

SK Hynix, Inc. v. Rambus, Inc., No. C-00-20905 RMW, 2013 WL 1915865 (N.D. Cal. May 8, 2013)

In this ongoing patent infringement action, a major question has been whether Rambus’s destruction of documents constituted spoliation and, if so, what sanctions should be imposed. Different courts considering the same facts (but involving different plaintiffs) came to different conclusions.  Upon its initial consideration of the question, the district court in the Northern District of California determined that “Rambus had not spoliated documents” and that there was “no factual basis for an unclean hands defense” as asserted by SK hynix.  (See summary here.)  A jury subsequently returned verdicts in favor of Rambus and the court therefore “entered final judgment of infringement with respect to ten Rambus patent claims” and awarded judgment of “$349,035,842 after a remittitur plus prejudgment interest, and required SK hynix to pay specified royalties to Rambus on an ongoing basis.”  A district court in the District of Delaware (in a case involving Plaintiff Micron Technology, Inc.) disagreed, however, and found that sanctions were warranted for Rambus’s spoliation of documents.  (See summary here.)  The court therefore declared the patents in suit unenforceable against the plaintiff in that case.

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For Good Cause Shown, Plaintiffs No Longer Required to Utilize Predictive Coding

EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL, 2013 WL 1960621 (Del. Ch. May 6, 2013)

Previously, the court ordered the parties to “retain a single discovery vendor to be used by both sides” and to “conduct document review with the assistance of predictive coding.”  (See summary, here.)  On May 6, the court entered a new order, stating that Defendants could retain their chosen vendor and utilize computer assisted review but that the parties would not be required to retain a single vendor to be used by both sides and that “Plaintiffs may conduct document review using traditional review methods.”

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Fourth Circuit Addresses Taxable Costs Related to ESI

Country Vintner of North Carolina, LLC v. E & J Gallo Winery, Inc., —F. 3d.—, 2013 WL 1789728 (4th Cir. Apr. 29, 2013)

In this case, the Fourth Circuit clarified “what expenses related to electronically stored information (“ESI”) are taxable under the federal taxation-of-costs statute as ‘[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case’” and affirmed the district court’s order “taxing only the costs of converting electronic files to non-editable formats, and transferring files onto CDs.”

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Citing Proportionality, Court Declines to Require Defendant to Redo Discovery Utilizing Only Predictive Coding

In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013)

In this product liability case, Plaintiffs’ Steering Committee objected to Biomet’s reliance on keyword searching to initially reduce the volume of information it then subjected to predictive coding and sought to require Biomet to start again and to utilize only predictive coding, with plaintiffs’ input.  The court concluded that Biomet’s efforts complied with its discovery obligations under the civil rules.

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Volume, Expense Insufficient to Show ESI is Inaccessible, “Rather, the cost or burden must be associated with some technological feature that inhibits accessibility.”

W Holding Co., Inc. v. Chartis Ins. Co. of Puerto Rico, No. CIV. 11-2271 GAG, 2013 WL 1352426 (D.P.R. Apr. 3, 2013)

In this case the court addressed competing proposed protocols for the discovery of electronically stored information and declined to approve a provision that would require cost-shifting, among others.  Notably, the court rejected the argument that the at-issue ESI was inaccessible (thus justifying cost-shifting) because the responding party did not show “that access to [the data] is hindered by any unique technological hurdles.”

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Court Imposes Adverse Inference for Failure to Preserve Facebook

Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013)

In this personal injury action, the court imposed spoliation sanctions for Plaintiff’s failure to preserve his Facebook account.

Plaintiff alleged that as the result of a work-related accident he sustained numerous injuries that rendered him permanently disabled.  Defendants sought production of information related to Plaintiff’s social media accounts and online business activities such as eBay.  In response, Plaintiff provided signed authorizations for the release of information from certain sites, but did not include authorization for the release of records from Facebook.

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