Tag: Computer Assisted Review

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Knauf Insulation, LLC v. Johns Manville Corp., No. 1:15-cv-00111-WTL-MJD, 2015 WL 7089725 (S.D. Ind. Nov. 13, 2015)
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In re Lithium Ion Batteries Antitrust Litig., No. 13-MD-02420 YGR (DMR), 2015 WL 833681 (N.D. Cal. Feb. 24, 2015)
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Shire LLC v. Amneal Pharms., LLC, No. 2:11-cv-03781 (SRC)(CLW), 2014 WL 1509238 (D.N.J. Jan, 10, 2014)
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Design Basics, LLC v. Carhart Lumber Co., No. 8:13CV125, 2014 WL 6669844 (D. Neb. Nov. 24, 2014)
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Green v. Am. Modern Home Ins. Co., No. 1:14-cv-04074, 2014 WL 6668422 (W.D. Ark. Nov. 24, 2014)
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In re Bridgepoint Educ., Inc., No. 12cv1737 JM (JLB), 2014 WL 3867495 (S.D. Cal. Aug. 6, 2014)
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In re Actos (Pioglitazone) Products Liability Litig., MDL No. 6:11-md-2299
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Sprint Commc?ns Co., L.P. v. Comcast Cable Commc?ns, LLC, Nos. 11-2684-JWL, 11-2685-JWL, 11-2686-JWL, 2014 WL 1794552 (D. Kan. May 6, 2014)
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FDIC v. Bowden, No. CV413-245, 2014 WL 2548137 (S.D. Ga. June 6, 2014)
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FDIC v. Giannoulias, No. 12 C 1665, 2013 WL 5762397 (N.D. Ill. Oct. 23, 2013)

Knauf Insulation, LLC v. Johns Manville Corp., No. 1:15-cv-00111-WTL-MJD, 2015 WL 7089725 (S.D. Ind. Nov. 13, 2015)

Key Insight: Where Defendants identified 38 potential email custodians who may possess relevant ESI but proposed to load the emails of only ten custodians to save money and ?facilitate the predictive coding process? and where Plaintiff indicated that Defendant refused to informally disclose information sufficient to evaluate the importance of each custodian, the court briefly opined re: e-Discovery and the lack of any guarantee that all relevant documents will be found and then, reasoning that it had no evidence with which to weigh the likelihood that the 28 ?tangential custodians? would have relevant information but that in ?a high value? case the burden of $18,000 (the amount Defendant proposed to save) did not outweigh the potential benefit to Plaintiff of receiving the emails, declined Defendants? request to limit custodians; regarding cost-shifting, the court ordered that if the search of the 28 additional custodians returned fewer than 500 responsive documents Plaintiff would bear the cost of loading the materials but that if more than 500 were identified, Defendant would bear the costs

Nature of Case: Patent infringement

Electronic Data Involved: Email

In re Lithium Ion Batteries Antitrust Litig., No. 13-MD-02420 YGR (DMR), 2015 WL 833681 (N.D. Cal. Feb. 24, 2015)

Key Insight: Where parties disagreed regarding incorporation of ?randomized qualitative sampling? to determine the effectiveness of search terms into their Search Term Protocol because Defendant objected to Plaintiffs? access to non-responsive, irrelevant documents, court approved its use, arguing that it was intended to prevent the production of irrelevant information; in recognition of Defendants? concerns, court noted Plaintiff?s agreement that Defendant ?may review the random qualitative sample and remove any irrelevant document(s) from the sample for any reason, provided they replace the document(s) with an equal number of randomly generated document(s)?, ordered that the irrelevant documents and any attorney notes regarding the sample be destroyed within a time specified, and ordered that access to the random sample would be limited as specified

Nature of Case: Antitrust

Electronic Data Involved: ESI (search terms at issue)

Shire LLC v. Amneal Pharms., LLC, No. 2:11-cv-03781 (SRC)(CLW), 2014 WL 1509238 (D.N.J. Jan, 10, 2014)

Key Insight: Weighing five factors to resolve the issue of waiver by inadvertent disclosure, court found that the use of analytical software without attorney review did not constitute reasonable steps to prevent inadvertent disclosure, and also faulted defendants? efforts to rectify the error, noting that defendants did not conduct a remedial investigation until after plaintiff alerted defendants that the production appeared to contain privileged documents; court concluded that, in light of the fact that the inadvertent disclosure was the result of a failure to review, justice would be served by a finding of waiver

Nature of Case: Patent infringement

Electronic Data Involved: Documents protected by attorney-client privilege

Design Basics, LLC v. Carhart Lumber Co., No. 8:13CV125, 2014 WL 6669844 (D. Neb. Nov. 24, 2014)

Key Insight: Where court had previously ruled that, absent an order of the court upon a showing of good cause or stipulation by the parties, a party from whom ESI has been requested shall not be required to search for responsive ESI: (a) from more than 10 key custodians, (b) that was created more than five years before the filing of the lawsuit, (c) from sources that are not reasonably accessible without undue burden or cost, or (d) for more than 160 hours, inclusive of time spent identifying potentially responsive ESI, collecting that ESI, searching that ESI and reviewing that ESI for responsiveness, confidentiality and privilege or work product, and plaintiff subsequently moved to compel additional computer imaging, court balanced Rule 26(b)(2)(B) considerations and, acknowledging that defendant had provided both electronic and paper copies of all blueprints, performed plaintiff?s requested search on the email copied from 11 computers, had invested many hours reviewing thousands of documents for privilege and had offered to produce the non-privileged emails to plaintiff?s counsel for his review and had provided suggested deposition dates for defendant?s president, and noting that plaintiff neither reviewed the email nor deposed anyone notwithstanding that case was more then 18 months old, concluded that requested discovery was not reasonable and proportional to the issues raised in the litigation, denied plaintiff?s motion to compel, granted defendant?s motion for protective order, and ordered parties to complete and file an appended Rule 26(f) Report

Nature of Case: Design misappropriation

Electronic Data Involved: Forensic images of every computer or data storage location used by defendant

In re Bridgepoint Educ., Inc., No. 12cv1737 JM (JLB), 2014 WL 3867495 (S.D. Cal. Aug. 6, 2014)

Key Insight: Plaintiff sought to expand the scope of defendants? review and argued that defendants? alleged cost and burden would be lower than represented because defendants based their representations on manual review, rather than predictive coding. Defendants responded that manual review was still necessary where the predictive coding tool merely indicated a probability that a document was relevant and was not ?foolproof? – thus requiring the review. Relying on Rule 26(b)(2)(C), the court concluded that the additional discovery would be unduly burdensome and declined to grant Plaintiff?s request. The court also addressed Plaintiff?s request to require the defendants to run documents already produced through the predictive coding process. The court declined, reasoning that it had previously approved defendants? method of ?using linear screening with the aid of search terms? but, where defendant was willing to run additional terms, directed the parties to meet to discuss such terms.

Electronic Data Involved: ESI, email

FDIC v. Giannoulias, No. 12 C 1665, 2013 WL 5762397 (N.D. Ill. Oct. 23, 2013)

Key Insight: Where defendants propounded 242 requests for documents, trial court declined to require FDIC to review thousands of documents ?to weed out a presumably small subset of irrelevant materials,? or to organize its Phase II production according to defendants? numerous discovery requests; court granted in part and denied in part the parties? respective motions concerning search terms to be used to identify responsive material, and ruled that FDIC would bear the costs of production as they arose subject to the possibility that the court may later require contribution from the defendants; court further directed FDIC to submit to the court a revised proposed ESI protocol

Nature of Case: Receiver sued former directors and officers of bank to recover approximately $114 million in losses bank suffered on 20 commercial real estate loans

Electronic Data Involved: ESI, including email

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