Early Conference/Discovery Plan – Page 5

In re Autohop Litig., No. 12-CV-4155 (LTS)(KNF), 2014 WL 5591047 (S.D.N.Y. Nov. 4, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted in part and denied in part defendant’s motion to compel, agreeing with plaintiff that particular document request was overly broad, unduly burdensome, and incomprehensively vague, and concluding that enormous burden and expense that would incurred by plaintiff to access and process the requested data outweighed any benefit defendant might gain; court further noted that the request violated agreement reflected in parties’ Joint Electronic Discovery Submission that they would not be required to search for “other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business”

Nature of Case: Declaratory action with counterclaims for copyright violations, breach of contract and fraud

Electronic Data Involved: Internal communications, viewership tracking data

Small v. Univ. Med. Ctr. of S. Nev., No. 2:13-cv-00298-APG-PAL, 2014 WL 4079507 (D. Nev. Aug. 18, 2014)

Dec 01 2014

Key Insight: In a lengthy decision, the Special Master recounted chronology of “extraordinary misconduct and substantial and willful spoliation of relevant ESI” by defendant and observed: “The level of intentional destruction of evidence by UMC shocks the conscious.” The Special Master concluded that only case dispositive sanctions would fully protect plaintiffs from defendant’s willful discovery failures, and set out various recommendations including specific factual findings as to class certification and a rebuttable presumption regarding certain merit issues

Nature of Case: Class action alleging claims under Fair Labor Standards Act and Nevada state wage and hour laws

Electronic Data Involved: ESI, laptops, personal mobile phones and BlackBerry devices, BlackBerry server, databases, SMS text messages, etc.

Mejia v. Charette, No. 12-cv-449-JD-LM, 2013 WL 6001081 (D.R.I. Nov. 12, 2013)

Dec 01 2013

Key Insight: In the interest of judicial economy and efficiency, Court deferred ruling on plaintiff?s motion to compel to the extent it sought records from Wyatt Detention Facility (a third party), and directed defense counsel to request from the WDF the records plaintiff sought and to report on the status of such request at the next pretrial conference; court further denied defendants? request to limit their obligation to preserve and produce ESI so that they need not maintain that information beyond the regularly scheduled deletion, purge or overwriting date unless they have actual knowledge that responsive information actually is contained in the system or unless opposing party specifically requests it in writing, and to exclude backup tapes from litigation hold, as defendants did not provide any reason why their obligation to preserve all relevant ESI, including backup tapes or disks, should be voided, or why they should be excused from a party?s general duty to preserve relevant evidence once on notice of litigation

Nature of Case: Inmate at Wyatt Detention Facility asserted escessive force claims against four U.S. Marshals

Electronic Data Involved: ESI

Home Instead, Inc. v. Florance, No. 8:12CV264, 2013 WL 5979629 (D. Neb. Nov. 8, 2013)

Dec 01 2013

Key Insight: Finding defendants? effort to respond to discovery inadequate in various respects, court granted plaintiff’s motion to compel and ordered defendants: (1) to provide detailed listing of all documents responsive to plaintiff’s discovery and in defendants’ possession, custody or control as of date of discovery requests, but which were not produced because defendants destroyed, deleted, sold, shredded or otherwise discarded them, along with a description of how and when defendants lost control or possession of such information, (2) to further search for and respond to discovery, produce any additional discovery located, and explain by written affidavit, as to each separate document request, the efforts made to locate responsive documents, and (3) to provide a sworn affidavit outlining whether a litigation hold was put in place, persons to whom litigation hold letter was sent, directions for preservation, sources identified for search, search terms used and efforts to ensure compliance with litigation hold; court further faulted defendants? production of one large PDF that contained no metadata, no indication of parent-child document relationship, and no indication as to the beginning and end of each document, and ordered defendants to produce responsive information in a manner that complied with the Federal Rules

Nature of Case: Franchise dispute involving claims for violation of non-compete clause, misappropriation of trade secrets and license marks, and other claims

Electronic Data Involved: ESI

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 SRN/SER, 2013 WL 6094600 (D. Minn. Nov. 20, 2013)

Dec 01 2013

Key Insight: District court affirmed in part magistrate judge?s order (at 2013 WL 5687559) denying plaintiff?s request for forensic examination of laptop computers used by plaintiff during her employment, as defendant produced 56,625 pages of documents from most recently used laptop, and burden and expense of forensic examination of previous laptop outweighed its likely benefit, given that plaintiff did not assert even a belief that relevant information existed on that computer that was not produced from other sources; court reversed in part magistrate judge?s order denying access to text and voice messages, finding that plaintiff demonstrated that ?the scale tips in her favor? in regard to two mobile phones provided by defendant to plaintiff and another witness for work-related purposes, and ordering parties to meet and confer upon protocol to be used in conducting search for responsive text messages and voice messages contained on the two devices

Nature of Case: Employment discrimination

Electronic Data Involved: Work laptops, and text messages and voice messages on certain mobile devices

Westdale Recap Props., Ltd. v. NP/I & G Wakefield Commons, LLC, No. 5:11-CV-659-D, 2013 WL 5424844 (E.D.N.C. Sep. 26, 2013)

Dec 01 2013

Key Insight: Where producing party defended tardiness of production by explaining it had been awaiting agreement on protocol for ESI, as contemplated in parties? discovery plan, and proposed search terms from plaintiffs to conduct a supplemental search of ESI pursuant to such protocol, court granted in part and denied in part plaintiffs? motion to compel, setting deadlines for plaintiffs to provide different custodians, dates and/or keyword search terms, and for production, resolving that production should be in the form of searchable PDF?s with the option of requesting particular ESI in native format if there is a demonstrable need, and requiring defendant to prepare privilege log meeting requirements of Rule 26(b)(5)(A) and duly signed by counsel for any otherwise responsive documents withheld on grounds of privilege

Nature of Case: Fraud, civil conspiracy, unfair and deceptive trade practices and negligent misrepresentation

Electronic Data Involved: ESI

McGrath v. United States, 103 Fed. Cl. 658 (Fed. Cl. 2012)

Dec 01 2012

Key Insight: Court ordered adoption of parties? proposed order concerning the management of electronic discovery which contained ?some but not all? of the provision of the [Model] Order drafted by the Federal Circuit and indicated its additional consideration of the [Model] Order adopted by the E.D. Texas

Electronic Data Involved: ESI

Osborne LLC v. C.H. Robinson Co., No. 08 C 50165, 2011 WL 5076267 (N.D. Ill. Oct. 25, 2011)

Dec 01 2011

Key Insight: Where defendant ?was late in responding to some of plaintiff?s discovery requests, and failed to respond to Plaintiff?s good faith attempts to open a dialogue about electronic discovery? and where there was evidence that defendant knew what plaintiff was seeking but ?was deliberatively evasive and caused unnecessary delay? (by failing to produce relevant records because plaintiff had not specifically asked for documents containing specific terms, for example) the court indicted that defendant?s actions were not in line with the Federal Rules, the Seventh Circuit?s Pilot Program principles, or the Sedona Principles and ordered payment of certain of plaintiff?s fees and costs; court noted Plaintiff?s contributions to the delays by ?aggressively pursuing motions to compel and for sanctions when there may have been opportunities for more amicable resolutions? and thus declined to impose cost or fees related to duplicative or repetitive motions

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Morris v Scenera Research LLC, No. 09 CVS 19678, 2011 WL 3808544 (N.C. Super. Ct. Aug. 26, 2011)

Dec 01 2011

Key Insight: Court upheld clawback agreement between the parties which held that inadvertent production would not result in waiver; where parties entered into 26(f) agreement regarding what metadata need be produced but where plaintiff moved to compel production of additional fields because those provided did not allow him to search effectively or identify the source of particular documents, the court entered into an extensive analysis of the ?form? and ?organization? requirements in Rule 34 and withheld ruling until defendant could provide evidence regarding the burden of providing an index that could allow identification of the source of each document

Nature of Case: State employment claims

Electronic Data Involved: ESI, metadata

Seven Seas Cruises S. DE R.L. v. V. Ships Leisure Sam, 2011 WL 181439 (S.D. Fla. Jan. 19, 2011)

Dec 01 2011

Key Insight: Where plaintiffs challenged the sufficiency of defendants? search, including whether defendants had used the agreed-upon search terms, and the format of defendant?s production, and where plaintiff specifically pointed to an email that should have been produced but was not, the court noted plaintiffs? concession that defendants? search methodology did not result in plaintiff receiving fewer documents and that they had been able to use the information produced, despite their arguments regarding format, but ?nevertheless concluded? that defendants should provide additional information and ordered the submission of an affidavit detailing defendants? search efforts; the court concluded that the dispute in this case was ?caused primarily by the parties? mutual failure to communicate and work together in good faith to resolve the areas of dispute? and counseled that in future the parties should more clearly specify the way in which discovery will be conducted and, if they cannot agree, should seek judicial assistance

Nature of Case: Suit for damages arising from failure to provide proper ship management

Electronic Data Involved: ESI

Tag:Early Conference/Discovery Plan