Key Insight: Judge reluctantly agreed with plaintiff that TAR should be applied before keyword searches used to cull data set.
Nature of Case: Products Liability
Electronic Data Involved: ESI
Keywords: TAR; keyword; data cull
Key Insight: Plaintiff requested Defendant run 72 “spelling variations” of 5 terms allowed by prior court order. Court denied and allowed 20, but did not apply sanctions yet.
Nature of Case: Libel/Slander
Electronic Data Involved: Various ESI
Keywords: search terms; sanctions; cooperation
Key Insight: How much access of a party’s electronic information system does rule 34(a) give a party?
Nature of Case: Trade secrets
Electronic Data Involved: Responsive documents
Keywords: ESI protocol, Forensic images, overly broad
Key Insight: Where Defendant formulated search terms and identified custodians unilaterally before undertaking its search and where plaintiff suspected the results were insufficient based on both the low volume of information produced and the failure to produce certain expected information (based on third parties? productions), the court considered Defendant?s multiple proposals for addressing the issue and determined that starting again, from scratch, was most appropriate; addressing whether the cost was disproportionate, court declined to characterize the costs as ?additional expense,? reasoning that Defendant ?should have resolved these issues before undertaking its unilateral search?
Nature of Case: Patent infringement
Electronic Data Involved: ESI
Key Insight: Court ruled that defendants may, under the proportionality factors in 26(b)(1), limit their search to databases and central repositories rather than engage in custodial searches for all cases at the Defendant Fact Sheet (DFS) stage of the MDL due to the ?significant burden of the proposed custodial-file searches? and the less-than-certain benefits of such searches.? The Court noted Defendant?s acknowledgement that custodial searches would likely be ?warranted for a narrower group of cases at a later stage? and that plaintiffs were free to seek permission to engage in further discovery if information available in the structured databases was insufficient.
Nature of Case: Products Liability
Electronic Data Involved: ESI
Key Insight: Where plaintiff sought production of specific folders from e-mail inboxes after defendant had already produced e-mails from those custodians as identified by keyword search terms r, the court found the request duplicative and denied plaintiff?s request. Where plaintiff sought to compel additional searches likely to capture information well beyond that to which plaintiff was entitled and resisted a compromise offer of running the searches with restrictive terms designed to weed out irrelevant information, the court granted the request for additional searches but also granted defendant?s request to include limiting terms to restrict the capture of irrelevant data. Where plaintiff requested a sworn affidavit detailing defendant?s litigation hold efforts including the ?specific actions? which hold notice recipients were directed to take and any enforcement efforts, the court agreed with defendant that specific actions and enforcement efforts were subject to attorney-client privilege but directed plaintiff to ?provide this information via ?sworn affidavit? in a manner which, does not invoke the work product doctrine or violate the attorney-client privilege OR to make a specific legal and factual showing [] as to any work product objection or attorney-client privilege claim? and also ordered production of the other requested information, including custodian names and document types subject to the hold.
Nature of Case: Professional Negligence
Electronic Data Involved: e-mail
Key Insight: Where, despite a request from Plaintiff?s counsel to preserve all communications between plaintiff and defendants or their employees AND Defendants? OWN REQUEST that Plaintiff preserve information from her cellular phones, Defendants failed to preserve potentially relevant text messages, the court rejected defendants? arguments that ?due to the nature of text message communications and the cellular devices they are stored on?a requirement to preserve text messages from private cellular phones is unduly burdensome and an invasion of privacy? and found that the messages should have been preserved and indicated that a ?spoliation instruction to the jury? would be given at trial but declined to preclude defendants? reliance on plaintiff?s text messages at trial or to order defendants to pay fees and cost associated with the extraction of plaintiffs? text messages from her own phone
Nature of Case: Employment
Electronic Data Involved: Text messages
Key Insight: Court declined to compel Defendant to conduct additional searches of witnesses? email accounts using 88 new search terms and excluding Plaintiff?s name finding that the request was ?overly broad and not proportional to the case? and reasoning that Plaintiff relied upon a multi-plaintiff case to justify her position and that she had not provided specifics regarding what she reasonably expected to find or shown that the information could not be found through other means, such as by asking additional questions of witnesses already scheduled for deposition ; court ordered Defendant to produce the relevant policies it operated under where Defendant claimed emails were deleted in the ordinary course of business according to Company policy, and that Defendant should also provide Plaintiff with the date of the deletion and the name of the person who made the deletion or the process of deletion, if known
Nature of Case: Wrongful termination
Electronic Data Involved: Email
Key Insight: Where Defendant responded to court?s inquiries regarding its search efforts and marked its search terms and a ?non-exhaustive list of topic areas of documents produced to Plaintiff? as attorney work product, court reasoned that ?this is precisely the type information which is generally shared by counsel in complex civil litigation cases so that they may reach an agreement regarding the scope of production of ESI? and that ?[t]he norm in these cases is that counsel for both sides review and agree in advance on the parameters of the search, on any search terms to be used, and on the specific custodians whose files are to be searched? and ordered Defendant to file unredacted copies on ECF, but indicated that they would be under seal to protect information covered by the Stipulation and Order of Confidentiality
Electronic Data Involved: Search terms
Key Insight: Where, in email, the parties agreed to use certain search terms and one party produced all such hits except those deemed privileged while the other produced only relevant documents, court indicated that if it were to construe the emails as a binding contract, Defendant would be in breach, but found that it was not a contract and reasoned that there was no evidence that relevant documents were withheld nor that additional searches would produce more responsive documents, and thus denied Plaintiff?s motion to compel
Nature of Case: Defamation
Electronic Data Involved: ESI identified by agreed search terms
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