Cost Shifting – Page 9 – Electronic Discovery Law

FDIC v. Baldini, No. 1:12-7050, 2014 WL 1302479 (S.D. W. Va. Mar. 28, 2014)

Dec 01 2014

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

JPMorgan Chase Bank, N.A., v. East-West Logistics, LLC, No. 1-12-1111, 2014 WL 1292905 (Ill. App. Ct. Mar. 31, 2014)

Dec 01 2014

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

Cochran v. Caldera Med., Inc., No. 12-5109, 2014 WL 1608664 (E.D. Pa. Apr. 22, 2014)

Dec 01 2014

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

FDIC v. Bowden, No. CV413-245, 2014 WL 2548137 (S.D. Ga. June 6, 2014)

Dec 01 2014

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

Oleksy v. Gen. Elec. Co., No. 6 C 1245, 2014 WL 3820352 (N.D. Ill. Aug. 1, 2014)

Dec 01 2014

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

Castillon v. Corrections Corp. of Am., No. 1:12-cv-005590EJL, 2014 WL 517505 (D. Idaho Feb. 7, 2014)

Dec 01 2014

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

Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 12-2350-SAC, 2014 WL 806122 (D. Kan. Feb. 28, 2014)

Dec 01 2014

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

Ingrid & Isabel, LLC v. Baby Be Mine, LLC, No. 13-cv-01806, 2014 WL 1338480 (N.D. Cal. Apr. 1, 2014)

Dec 01 2014

Key Insight: Court denied issue preclusion sanctions without prejudice, ordering defendants to pay monetary sanctions of $20,444, produce all hard drives and any other electronic storage media subject to court-approved protocol for inspection, and provide plaintiff’s experts with access to defendants’ various e-mail, Amazon, Twitter, Facebook and eBay accounts, in light of serious concern as to whether defendants met their discovery obligations and real danger that evidence may be destroyed

Nature of Case: Breach of settlement agreement resolving trademark infringement and unfair competition claims

Electronic Data Involved: Defendants’ hard drives and various e-mail, Amazon, Twitter, Facebook and eBay accounts

Bell Inc. v. GE Lighting, LLC, 6-14-CV-00012, 2014 WL 1630754 (W.D. Va. Apr. 23, 2014)

Dec 01 2014

Key Insight: Court ordered partial cost-shifting of third party?s costs in responding to subpoena upon evaluating several factors, including the third party?s (poor) financial condition, but declined to shift all costs where the third party declined the requesting parties? offer to review the documents – through outside counsel – subject to a clawback agreement (resulting in higher costs) and where the court found the third party was an interested party and that the litigation was not of public importance; court noted in its discussion that ?Courts in this district have found that it is untenable for a party to insist on individually reviewing all documents for privilege and responsiveness, rather than producing documents under a protective order with a claw back provision.?

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Illiana Surgery and Med. Care Ctr. LLC v. Hartford Fire Ins. Co., NO. 2:07 cv 3, 2014 WL 1094455 (N.D. Ind. Mar. 19, 2014)

Dec 01 2014

Key Insight: Following evaluation of the relevant eight part test, court declined to shift the costs of producing emails stored on Defendant?s backup system pursuant to Rule 26(b)(2)(B) (inaccessible data) but placed limitations on the discovery allowed and ordered Defendant to restore eight weeks of backup tapes at its own expense and to search them for the requested emails and invited Plaintiff to renew its motion if, after Defendant?s search was complete, it could show that ?further exploration? was necessary

Nature of Case: Insurance Litigation

Electronic Data Involved: Emails stored on backup tapes

Tag:Cost Shifting