Format Of Production – Page 13 – Electronic Discovery Law

In re Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig., MDL No. 2342, 2013 WL 8445354 (E.D. Pa. Oct. 31, 2013)

Dec 01 2013

Key Insight: Upon the Plaintiffs? Steering Committee?s motion to compel Pfizer to produce a log identifying documents withheld from production as non-responsive or irrelevant, particularly email attachments, the court noted the prior comprehensive treatment of the question of whether attachments must be produced in Abu Dhabi Commercial Bank v. Morgan Stanley & Co, Inc., No. 08 Civ. 7508(SAS), 2011 WL 3738979 (S.D.N.Y. Aug. 18, 2011) and concluded in this case that requiring defendant to log or produce with redactions those documents previously withheld was not warranted absent a showing of a ?systematic failure in Pfizer?s document review? or that the failures were ?on a large scale? or the product of an ?unjustified decision? but reasoned that the burden of requiring a log or other justification for the witholdings going forward would not carry as high a burden and ordered the parties to confer to determine how best to track that information going forward

Nature of Case: Product Liability

Electronic Data Involved: Attachments to ESI, particularly email

Franco-Gonzalez v. Holder, No. CV 10-2211-DMG (DTBx), 2014 WL 8116823 (C.D. Cal. May 3, 2013)

Dec 01 2013

Key Insight: Court partly granted plaintiffs? motion to compel, requiring government: (1) to re-produce all documents it had produced in a “locked” password-protected file either as they were kept in the ordinary course or organized and labeled to correspond to document requests, (2) as to other documents government had previously re-produced, to provide an index identifying, by date of production and bates number, which documents each reproduction was meant to replace, and whether any documents were new, and (3) as to documents from which government had redacted on the basis of non-responsiveness and not on the basis of any privilege, to produce unredacted versions of such documents

Nature of Case: Class action concerning government’s detention and removal of immigrants with mental issues

Electronic Data Involved: Various documents related to over 200 detainees, includingi A-file, medical documents, records of proceedings and database information

Transamerica Life Ins. Co. v. Lambert, No. 4:12-CV-1253 CAS, 2013 WL 4028275 (E.D. Mo. Aug. 7, 2013)

Dec 01 2013

Key Insight: Court granted cross-claim plaintiff’s motion to compel cross-claim defendant to produce computer and cell phone used by decedent by shipping those devices from Jonesboro, Arkansas to St. Louis, Missouri (at cross-claim plaintiff’s expense) for forensic examination because cross-claim defendant’s production of copies of cell phone text messages and a non-forensic copy of the computer hard drive were insufficient to respond to plaintiff’s request for production of the devices themselves, since the copies did not allow for forensic examination of the devices, and because the slight inconvenience to cross-claim defendant in not having access to the cell phone and computer for a period of time was outweighed by the significant additional expense cross-claim plaintiff would incur if she were required to examine the devices in Jonesboro

Nature of Case: Probate matter

Electronic Data Involved: Computer and cell phone used by decedent

FDIC v. Giannoulias, No. 12 C 1665, 2013 WL 5762397 (N.D. Ill. Oct. 23, 2013)

Dec 01 2013

Key Insight: Where defendants propounded 242 requests for documents, trial court declined to require FDIC to review thousands of documents ?to weed out a presumably small subset of irrelevant materials,? or to organize its Phase II production according to defendants? numerous discovery requests; court granted in part and denied in part the parties? respective motions concerning search terms to be used to identify responsive material, and ruled that FDIC would bear the costs of production as they arose subject to the possibility that the court may later require contribution from the defendants; court further directed FDIC to submit to the court a revised proposed ESI protocol

Nature of Case: Receiver sued former directors and officers of bank to recover approximately $114 million in losses bank suffered on 20 commercial real estate loans

Electronic Data Involved: ESI, including email

James v. UMG Recordings, Inc., No. 11-cv-01613-SI (MEJ), 2013 WL 5978322 (N.D. Cal. Nov. 8, 2013)

Dec 01 2013

Key Insight: Where plaintiffs could surely foresee the need to manipulate royalty data but did not specify production in electronic form, and defendant had already twice produced the documents and argued that production of electronically formatted royalty statements would require creation of new documents not currently in existence, court denied plaintiffs’ motion to compel production of the data in electronic format, stating that plaintiffs’ proffered justification that Excel format would be more convenient “falls far short of the mark”; court further denied plaintiffs’ request for receipts data, finding that the burden of reprogramming royalty database and creating new software to extract information far outweighed usefulness of ordering production given that plaintiffs stated they could discern the data by extrapolation

Nature of Case: Consolidated putative class action for breach of contract and other claims filed by recording artists and producers who alleged that defendant underpaid royalties on digital downloads of plaintiffs’ recordings

Electronic Data Involved: Royalty statements in Excel format, receipts from download transactions with vendors

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

Kickapoo Tribe of Indians of Kickapoo Reservation in Kan. v. Nemaha Brown Watershed Joint Dist. No. 7, No. 06-CV-2248-CM-DJW (D. Kan. Sep. 23, 2013)

Dec 01 2013

Key Insight: Court sustained District’s objection that it did not have duty to produce documents from persons no longer associated with the District who were not parties to the litigation, as plaintiff failed to establish that District had the necessary control over requested documents or that District had legal right to obtain such documents on demand from former District board members, staff or employees; court further denied motion to compel forensic mirror imaging of computers and other electronic devices personally owned by current and former District board members, employees and staff, as District already produced forensic mirror images of two District computers, District lacked possession or control of personally-owned computers, there was no showing that any personally-owned computers of board members, employees and staff were used by those persons for District business, and court had significant concerns about intrusiveness of request and privacy rights of individuals to be affected

Nature of Case: Dispute over water rights

Electronic Data Involved: ESI

Ford Motor Co. v. Mich. Consol. Gas Co., No. 08-CV-13503, 2013 WL 5435184 (E.D. Mich. Sep. 27, 2013)

Dec 01 2013

Key Insight: Magistrate judge evaluated plaintiffs? work product, attorney-client privilege, joint defense and common interest privilege claims, set out various findings and guidelines, and ordered plaintiffs to update their respective privilege logs and produce certain documents; magistrate judge further ruled that, because Ford had earlier produced voluminous documents as they were kept in the usual course of business, it had no further duty under Rule 34 or otherwise to organize and label the documents to correspond with individual requests for production

Nature of Case: Current and former property owners sued former operator of manufactured gas plant

Electronic Data Involved: Environmental investigation, remedy assessment and allocation related documents

Tag:Format Of Production