Cost Shifting – Page 18 – Electronic Discovery Law

Phillip M. Adams & Assoc., LLC v. Fujitsu, Ltd., 2010 WL 1064429 (D. Utah Mar. 18, 2010)

Dec 01 2010

Key Insight: Where defendant subpoenaed third parties seeking production of communications between defendant and those third parties from years prior, and where defendant could not produce those communications itself, court found the information relevant and denied third parties? motion to quash but, noting that defendant?s insufficient document retention policies resulted in the need to subpoena the information, court ordered defendant to bear the costs of production

Nature of Case: Patent infringement

Electronic Data Involved: Emails, ESI

Universal Del., Inc. v. Comdata Corp., 2010 WL 1381225 (E.D. Pa. Mar. 31, 2010)

Dec 01 2010

Key Insight: Where third-party (and former defendant) signed stipulation to preserve and produce ESI as if still a party to the litigation and later sought reimbursement for the review and production of data in a particular database, court ordered a database be created comprised of the four custodians at issue, that plaintiff pay $4085 to the vendor as a ?start-up fee? (pursuant to their agreement to do so), and that plaintiff and third-party split the remaining costs of creating the database, but ordered third-party to bear the costs of its own review prior to production

Nature of Case: Antitrist litigation

Electronic Data Involved: Database

MLM Props., LLC v. Country Cas. Ins. Co., 2010 WL 1948609 (D. Or. May 7, 2010)

Dec 01 2010

Key Insight: Where the court ordered plaintiffs to pay defendant?s expenses and fees related to a motion for sanctions arising from plaintiff?s delayed production of documents previously characterized as unrecoverable due to a damaged backup tape, court denied motion for additional sanctions where plaintiffs argued no prejudice resulted from the delay and where the court found no evidence to justify sanctions beyond those already imposed

Nature of Case: Breach of insurance contract and intentional inter-ference with economic relationships

Electronic Data Involved: ESI

URS Corp. v. Isham, 2010 WL 2428841 (D.S.C. June 11, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion for preservation and inspection of defendant?s relevant hardware but found plaintiff?s proposed protocol overly burdensome and thus ordered adherence to defendant?s proposed protocol which called for more targeted searches using terms proposed by plaintiff and provided a more reasonable time frame for the production of documents and privilege logs; parties to split the cost

Nature of Case: Claims arising from employees’ departure from plaintiff’s company to join defendant’s

Electronic Data Involved: Hard drives

Schreiber v. Schreiber, 2010 WL 2735672 (N.Y. Sup. Ct. June 25, 2010)

Dec 01 2010

Key Insight: In divorce proceedings, court denied wife?s motion for access to husband?s office hard drive where wife was not entitled to ?unrestricted turnover? of the drive and failed to propose a discover/issue resolution protocol to allow for the protection of privileged and private material but allowed for possible renewal of the motion, which must contain a proper discovery protocol, and provided specific instruction for the proper content of the same

Nature of Case: Matrimonial action/divorce

Electronic Data Involved: Husband’s office hard drive

Makrakis v. Demelis, 2010 WL 3004337 (Mass. Sup. Ct. July 13, 2010)

Dec 01 2010

Key Insight: Court found plaintiffs? request for production of emails stored on backup tapes would impose an unreasonable burden and expense where defendant provided evidence of the high cost of restoring the tapes and where plaintiff failed to adequately narrow the request or explain why other sources of discovery were insufficient, but, recognizing that the tapes could contain relevant information, ordered that plaintiff be allowed, at their own expense, ?to obtain a sampling? of the emails stored on the backup tapes and that if the circumstances warranted it, that plaintiff be allowed to move for further discovery

Nature of Case: Claims for injuries resulting from improper administration of medication

Electronic Data Involved: Emails stored on backup tapes

D’Onofrio v. SFX Sports Group, Inc., 2010 WL 3324964 (D.D.C. Aug. 24, 2010)

Dec 01 2010

Key Insight: Where defendants? failed to preserve relevant evidence but later undertook a ?diligent and expensive attempt to retrieve what was lost? resulting in the discovery of hundreds of thousands of documents, the court declined to impose default judgment absent clear and convincing evidence of bad faith and found that the imposition of attorneys? fees would result in ?disproportional punishment? in light of defendants? search expenditures; court declined to impose adverse inference or issue preclusion where the quantity and nature of evidence still missing was in dispute such that prejudice could not be established and ordered an evidentiary hearing; court found letter sent to parent company of defendant (plaintiff?s employer) was sufficient to trigger preservation obligation where the letter made specific mention of its applicability to all subsidiaries, was unambiguous about the intent to sue, and indicated its applicability to SFX in its reference line

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, laptop

Biax Corp. v. Nvidia Corp., 2010 WL 3777540 (D. Colo. Sept. 21, 2010)

Dec 01 2010

Key Insight: In an opinion addressing numerous discovery issues, the court granted in part plaintiff?s motion to compel and ordered the parties to submit a status report, preferably jointly, proposing a discreet number of proposed custodians and search terms, and to submit a joint-cost sharing agreement ?for the hefty cost of searching electronic files as represented by [defendant] with an accompanying affidavit in support of the anticipated costs?; court reasoned in footnote that ?justice require[ed]? cost sharing in light of the expense of searching electronic files and in light of the amount of documentation already produced by the defendant

Nature of Case: Patent infringement

Electronic Data Involved: ESI

State of California ex rel Fowler v. Caremark RX, LLC, 2010 WL 3991298 (Cal. Ct. App. Oct. 13, 2010):

Dec 01 2010

Key Insight: Where defendants resisted production of electronically stored information and sought to shift the costs of such production to plaintiff by presenting affidavits and expert testimony regarding the expected cost of production which, in large part, was the result of defendants? lack of a data retrieval system for archived information and its failure to suspend archiving documents despite the commencement of related litigation in 2004, and where it was revealed that the expert testimony presented lacked sufficient foundation, the court held that defendants had acted in bad faith and could no longer be trusted and awarded plaintiffs? fees and costs in the amount of $42,978.43; affirmed on appeal

Nature of Case: Violation of False Claims Act

Electronic Data Involved: Archived ESI

DeGeer v. Gillis, 2010 WL 5096563 (N.D. Ill. Dec. 8, 2010)

Dec 01 2010

Key Insight: Court ordered third-party to conduct additional searching for ESI and for counsel to meet and confer in person to determine the proper scope of the search, search terms, etc. and ordered that the costs of future discovery be split, except with respect to the third party?s search of its former CEO?s data, where that CEO had a practice of deleting email on a daily basis to avoid discovery

Nature of Case: Breach of fiduciary duty, tortious interference with business expectancy, breach of contract

Electronic Data Involved: ESI, backup tapes

Tag:Cost Shifting