Key Insight: Court granted parties’ Joint Motion for Entry of Agreed Order Establishing Protocol for Production of Electronically Stored Information, which addressed search terms, production format, and various other e-discovery matters
Nature of Case: Insurance coverage
Electronic Data Involved: ESI
Key Insight: Where e-discovery consultant jointly retained by parties reported that three previously undisclosed flash drives had been connected to former employee’s personal computers during the relevant time period, court agreed with plaintiff that consultant should be allowed to image and review the three flash drives but ruled that costs of such review would be borne by plaintiff given the likely limited usefulness of the search
Nature of Case: Misappropriation of confidential information
Electronic Data Involved: Flash drives and other electronic devices used by former employee
Key Insight: Non-party JPMorgan Chase Bank moved for an order compelling Plaintiffs to reimburse Chase over $450,000 in costs for producing over 334,000 pages of documents. Chase sought reimbursement under FRCP 45(d)(2)(b)(ii); Plaintiffs argued Chase could not recover costs unless the production resulted from a court order. The Court found that a court order is not required to shift costs and that costs may be shifted under Rule 45(d)(2)(B)(ii) if the requesting party is on notice that the non-party will seek reimbursement of costs. The Court ultimately denied Chase?s motion, stating ?it would be unfair?to reimburse Chase for costs?where Chase failed to inform plaintiffs it would later seek reimbursement??
Nature of Case: RESPA class action
Electronic Data Involved: ESI
Key Insight: Court denied plaintiff’s motion for protective order, rejecting plaintiff’s proposed protocol that would require defendants to supply search terms (which plaintiff would then apply to the ESI) and require defendants to pay ESI copying costs; court ordered plaintiff to fashion initial set of search terms and work with defendants to reach agreement on search terms to be used, and set out protocol to be followed by the parties for the production
Nature of Case: Breach of fiduciary duties, negligence
Electronic Data Involved: ESI
Key Insight: Trial court did not abuse its discretion when it ordered defendant to pay $3,026 of plaintiff’s requested $18,771 electronic discovery costs, as court had discretion under court rule to issue a protective order as justice required, had ordered the parties to confer on the scope of production and reserved the allocation of costs, and had properly balanced defendant’s need for the discovery material against the expense of the production incurred by plaintiff
Nature of Case: Action to collect amounts due under credit agreement and enforce guaranty
Electronic Data Involved: Electronically stored documents
Key Insight: In case where defendant represented that it was currently defending approximately 1,709 claims nationwide involving its various products, and that it had limited financial resources, court denied defendant’s request that plaintiffs share in the cost of producing documents and ESI as defendant did not demonstrate that ESI sought by plaintiffs was inaccessible; court further noted that, given the importance of the discovery requests to plaintiffs’ ability to prove their claims, and the seriousness of the injuries alleged by plaintiffs, the burden or expense of the discovery requests was outweighed by the likely benefit to plaintiffs
Nature of Case: Product liability re implantable surgical meshes
Electronic Data Involved: ESI, text messages, voicemail messages
Key Insight: Where FDIC spent $614,000 to digitally scan about 2.01 terabytes of data or 153.6 million pages of documents after taking over failing bank, and before any written document requests were served, court evaluated parties? competing proposals for conducting e-discovery, discussed the governing standards for manner of document production, formatting issues, and cost-shifting for digital format conversion expenses, and ultimately approved protocol offered by FDIC; court further instructed that, in the event of any further ESI-protocol disagreement or objection to the court?s decision, the parties must first confer and attempt to craft a joint ESI protocol or consent order in light of the principles highlighted in the court?s ruling
Nature of Case: Bank receiver brought bank mismanagement case against 16 of bank’s former directors and officers
Electronic Data Involved: Records of failed bank
Key Insight: Where, at time complaint was filed, defendant should have reasonably foreseen that files created by its accused process would be material to the parties’ claims, yet defendant continued to overwrite its files per its standard practice instead of saving the files either manually or automatically, court denied plaintiff’s request for adverse inference instruction but ordered defendant to reconstitute or recreate three complete sequences of old computer code at its own cost
Nature of Case: Patent infringement
Electronic Data Involved: Computer code
Key Insight: Where defendant produced data from timekeeping system in searchable .PDF format and provided attestation from the vice president of technology and chief information officer that that .PDF was the ?only, built-in, reasonably accessible data format? and that producing in the requested format would require Defendant to undertake the ?lengthy and daunting? task of writing a script and where Plaintiffs did not specify the format of production in their request, the court declined to compel re-production of the at-issue data, but noted that if Plaintiffs were willing to pay for the expense of writing a script, ?they may approach Defendant with such a request.?
Nature of Case: Prisoners’ civil rights
Electronic Data Involved: Data from timekeeping system
Key Insight: Court denied in most respects plaintiff’s motion for protective order, finding that plaintiff’s undue burden and expense arguments were unsupported and conclusory; court further denied plaintiff’s alternative proposal to shift some of the uncalculated ESI costs onto defendants as plaintiff failed to show that the disputed ESI production was inaccessible because of undue burden or cost, and because other relevant factors did not weigh in plaintiff’s favor; court further denied plaintiff?s request for a discovery conference or appointment of an ESI master, and ordered the parties to meet and confer regarding the proper method to search custodian hard drives, and suggested the parties consider a clawback provision specifically for ESI harvested after running the parties? respective search terms
Nature of Case: Insurance coverage dispute
Electronic Data Involved: ESI in databases and stored on custodian hard drives
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