Cost Shifting – Electronic Discovery Law

Gunter v. Alutiiq Advanced Security Solutions, LLC (D. Md. 2021)

Dec 28 2021

Key Insight: Defendant alleged that Plaintiff altered the wording of text messages and fabricated a series of text messages. Plaintiff also failed to produce relevant text message and falsely testified that such messages did not exists which was proved by a later forensic review. The Court had serious doubts regarding the text messages at issue. Plaintiff has no explanation for why his cellphone contains some text messages but not others. For these reasons, the Court ruled the text messages could not be used as evidence and the cost of the forensic review of the cell phone would be shifted to Plaintiff. However, the case would not be dismissed as there was not the “clear evidence necessary to conclude that Plaintiff fabricated the text messages.”

Nature of Case: Employment Discrimination

Electronic Data Involved: Text Messages

Case Summary

Allen v. PPE Casino Resorts Maryland, LLC (D. Md. 2021)

Jun 14 2021

Key Insight: Plaintiffs sought a protective order to prevent defendant from obtaining ESI from five different social media platforms they were active on. The court found that while a plaintiff’s social media postings could be relevant to a claim for “garden variety” emotional distress damages, some caution was necessary, such that a “deeper dive” into social media postings may be justified only in cases involving “severe and specific emotional distress” allegations. Since plaintiff alleged “garden variety” emotional distress stemming from defendant’s allegedly wrongful conduct, the discovery must be narrowed as follows: “specific references to serious, non-transient emotional distress in connection with the incidents described in their Complaint,” i.e., diagnosable conditions, visits to professionals for treatment of distress, treatment regimens and conversations regarding same; time frame limited from date contained in complaint of onset of difficulties to the date of filing of complaint; production limited to information found in a typical download of data from plaintiffs’ own accounts and plaintiffs “need not engage in extraordinary efforts in obtaining responsive information.”

Nature of Case: Employment discrimination

Electronic Data Involved: Social media posts

Case Summary

Hastings v. Ford Motor Co. (S.D. Cal. 2021)

Apr 02 2021

Key Insight: In litigation over product defect claim(s), Plaintiff filed a Motion to Compel Defendants to produce additional records pursuant to its discovery requests. The Motion centered around search terms that Plaintiff sought to compel Defendants to utilize in searching for responsive records. Reviewing specific Requests for Production, the Court found that they were overbroad and lacked relevance. Plaintiff’s Motion was denied, and Plaintiff was ordered to show why it (and counsel) should not have to reimburse Defendants’ for attorney’s fees and expenses in responding to the Motion.

Nature of Case: Contract Product Liability

Electronic Data Involved: Search Terms

Case Summary

Copenhaver v. Cavanga Group S.p.A Omeca Division (D. Mont. 2021)

Mar 12 2021

Key Insight: If a motion to compel is granted, the party whose conduct necessitated the motion is required to pay reasonable expenses in making the motion, including attorney fees. However, payment cannot be ordered if “the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action.”

Nature of Case: Products Liability

Electronic Data Involved: Email, Electronic Documents Generally

Case Summary

Cary v. Ne. Ill. Reg’l Commuter R.R. Corp. (N.D. Ill. Feb. 22, 2021)

Feb 22 2021

Key Insight: Court granted, in large part, plaintiff’s motion to compel ESI, requiring defendant to disclose data sources that may contain relevant ESI and refused to impose an “arbitrary limit of five or seven custodians” requested by defendants given the number of people identified as having potentially relevant information in their initial disclosures. The court urged the parties to agree upon search terms to less the burden of ESI searches and revisit an agreed time period in light of the court’s memorandum and order, rather than take “absolute line-in-the-sand positions” (citing Standing Order Relating to the Discovery of Electronically Stored Information at Principle 1.02 (Cooperation)). The court denied plaintiff’s request to produce the entire contents of her work email, finding the blanket request overbroad on its face.

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Case Summary

Lawson v. Spirit Aerosystems, Inc. (D. Kan. June 18, 2020)

Jun 18 2020

Key Insight: Cost shifting of the TAR costs to Plaintiff was warranted based on an analysis of the proportionality factors. Plaintiff was warned to narrow his discovery multiple times, continued to demand overbroad criteria for TAR, was aware of the potential costs of TAR, and was aware the discovery he sought led to largely non-responsive documents. Moreover, Defendant produced responsive documents by conducting its own search and production of documents outside of the TAR process.

Nature of Case: Breach of Contract, Non-Compete

Electronic Data Involved: Electronic Documents Generally

Case Summary

Lawson v. Spirit Aerosystems (Kansas, 2020)

Jun 18 2020

Key Insight: When plaintiff was allowed to dictate defendant’s electronic discovery process, cost shifting to plaintiff is appropriate when electronic discovery performed was not proportionate to the case

Nature of Case: Employment non-compete agreement

Electronic Data Involved: Electronic records

Keywords: Cost shifting, technology assisted review, TAR, aerospace

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Digital Mentor, Inc. v. Ovivo USA, LLC (Western District of Washington, 2020)

Feb 04 2020

Key Insight: Failure to produce; Sanctions; Proportionality

Nature of Case: Trademark & Copyright infringement

Electronic Data Involved: Hard copy; correspondence; email

Keywords: “Functional employee”; Consultant; Third-party communications; Privilege; Spoliation; Unfair prejudice; Attorney’s fees and costs; Proportionality; Access/Resources;

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NY Machinery v. The Korean Cleaners Monthly (D. N.J. 2020)

Jan 06 2020

Key Insight: This dispute was over which party was obligated to translate (or pay for the cost of translating) documents that were produced by Defendants (in response to document requests) into English. Plaintiffs filed a Motion to Compel Defendants to translate the documents and/or pay for the cost of translation, The Court denied it, finding that Defendants were neither obligated to translate the documents nor responsible for the cost(s) of translation. However, the court noted in a footnote that a party that produces documents in response to an interrogatory may be required to provide translations.

Nature of Case: Unfair Competition, Defamation

Electronic Data Involved: Documents

Case Summary

Stone Brewing Co., LLC v. MillerCoors LLC (Southern District of California, 2019)

Sep 17 2019

Key Insight: Requests for Production; marketing materials; Unreasonably cumulative or duplicative

Nature of Case: Trademark Infringement

Electronic Data Involved: Hard copy; Historical records; on-site inspection; Marketing materials (documents, recordings, video, displays, etc.)

Keywords: Discovery violations; adequacy of discovery responses; Vague/overbroad/burdensome/ not calculated to lead to discovery of documents relevant to claims or defenses; proportionality; access; costs/Attorney’s fees; resources; “Senior user”; Cherrypicking; Evidentiary preclusion; Court order; Representative samples

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Tag:Cost Shifting