Tag: Local Rule

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Design Basics, LLC v. Carhart Lumber Co., No. 8:13CV125, 2014 WL 6669844 (D. Neb. Nov. 24, 2014)
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FDIC v. Bowden, No. CV413-245, 2014 WL 2548137 (S.D. Ga. June 6, 2014)
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Farstone Tech., Inc. v. Apple, Inc., No. 8-13-cv-01537-ODW(JEMx), 2014 WL 2865786 (C.D. Cal. June 24, 2014)
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Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 12-2350-SAC, 2014 WL 806122 (D. Kan. Feb. 28, 2014)
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Del Gallo v. City of New York, 997 N.Y.S.2d 98 (Table) (N.Y. Sup. Ct.2014)
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SCR-Tech LLC v. Evonik Energy Servs. LLC, No. 08 CVS 16632 (N.C. Super Ct. Dec. 31, 2014)
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Hull v. WTI, Inc.,—S.E.2d—, 2013 WL 2996191 (Ga. Ct. App. June 18, 2013)
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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)
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EEOC v. JP Morgan Chase Bank, N.A., 295 F.R.D. 166 (S.D. Ohio 2013)
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Fawcett v. Altieri, 960 N.Y.S.2d 592 (N.Y. Sup. Ct. 2013)

Design Basics, LLC v. Carhart Lumber Co., No. 8:13CV125, 2014 WL 6669844 (D. Neb. Nov. 24, 2014)

Key Insight: Where court had previously ruled that, absent an order of the court upon a showing of good cause or stipulation by the parties, a party from whom ESI has been requested shall not be required to search for responsive ESI: (a) from more than 10 key custodians, (b) that was created more than five years before the filing of the lawsuit, (c) from sources that are not reasonably accessible without undue burden or cost, or (d) for more than 160 hours, inclusive of time spent identifying potentially responsive ESI, collecting that ESI, searching that ESI and reviewing that ESI for responsiveness, confidentiality and privilege or work product, and plaintiff subsequently moved to compel additional computer imaging, court balanced Rule 26(b)(2)(B) considerations and, acknowledging that defendant had provided both electronic and paper copies of all blueprints, performed plaintiff?s requested search on the email copied from 11 computers, had invested many hours reviewing thousands of documents for privilege and had offered to produce the non-privileged emails to plaintiff?s counsel for his review and had provided suggested deposition dates for defendant?s president, and noting that plaintiff neither reviewed the email nor deposed anyone notwithstanding that case was more then 18 months old, concluded that requested discovery was not reasonable and proportional to the issues raised in the litigation, denied plaintiff?s motion to compel, granted defendant?s motion for protective order, and ordered parties to complete and file an appended Rule 26(f) Report

Nature of Case: Design misappropriation

Electronic Data Involved: Forensic images of every computer or data storage location used by defendant

Farstone Tech., Inc. v. Apple, Inc., No. 8-13-cv-01537-ODW(JEMx), 2014 WL 2865786 (C.D. Cal. June 24, 2014)

Key Insight: Court adopted plaintiff’s source-code printing provision in its entirety, rejecting as too restrictive defendant’s proposed limitations that parties may print only that source code ?necessary? to prepare court filings and pleadings, noting that the “reasonably necessary” standard had solid foundation in district?s model protective order, and rejecting as arbitrary defendant?s proposed numerical restrictions: 30-page threshold beyond which the source code printing would be presumed to be excessive, and a total cap on source code printing at the greater of 250 pages or 10 percent of the source code; court also adopted in full plaintiff?s proposed language regarding the use of source code for depositions

Nature of Case: Patent infringement

Electronic Data Involved: Source code

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

Del Gallo v. City of New York, 997 N.Y.S.2d 98 (Table) (N.Y. Sup. Ct.2014)

Key Insight: Addressing request for discovery of Plaintiff?s social media contents, specifically LinkedIn, court indicated that ?[t]o warrant such discovery, ?defendants must establish a factual predicate for their request by identifying relevant information in plaintiff?s [social media] account — that is, information that contradicts or conflicts with plaintiff?s alleged restrictions, disabilities, and losses, and other claims?? and, although it acknowledged that Defendants could obtain information pertinent to Plaintiff?s communications with recruiters related to job offers and related inquiries, indicated that Defendants had not shown that they were entitled to Plaintiff?s communications with former colleagues about her condition or to the other materials on LinkedIn

Nature of Case: Wrongful death and personal injuries resulting from falling tree limb

Electronic Data Involved: Social Media Contents (e.g., LinkedIn)

SCR-Tech LLC v. Evonik Energy Servs. LLC, No. 08 CVS 16632 (N.C. Super Ct. Dec. 31, 2014)

Key Insight: Where Plaintiff failed to ensure the preservation of information underlying a highly relevant report regarding the examination of certain Defendants? computers over which the court determined it had ?de facto control? (the underlying information, including copies of the images were in the possession of the third party investigator), the court indicated it was not necessary to make an express finding regarding when litigation was contemplated and reasoned that based on the circumstances, Defendants were ?entitled to the inference? that the information was negligently lost during a time when Plaintiff had the duty to preserve it. Thus, the court found Defendants had presented sufficient evidence of spoliation to trigger Plaintiff?s obligation to rebut it and that Plaintiff had not. As a sanction, the court ordered a permissive adverse inference. Regarding Plaintiff?s request to compel Defendant?s restoration of backup tapes, the court identified the state?s relevant three-part test and ordered that if Plaintiff wanted restoration, it would be required to pay half o f the estimated costs up front, with further allocation to occur following analysis of the results of the search.

Electronic Data Involved: ESI, backup tapes

Hull v. WTI, Inc.,—S.E.2d—, 2013 WL 2996191 (Ga. Ct. App. June 18, 2013)

Key Insight: Where defendants produced 156,000 documents as they were kept in the ordinary course of business but where the documents were insufficiently organized and only the documents? indexes and not the documents themselves were text searchable, the trial court did not abuse its discretion in holding that the production was not consistent with Defendants? discovery obligations; appellate court noted that trial court did not hold that parties are prohibited from producing documents as kept in the ordinary course of business but rather than in this instance, ?under these circumstances,? the production was not appropriate

Nature of Case: Breach of contract, trade secret misappropriations, and “other business tort claims” and counterclaims

Electronic Data Involved: Scanned hard copy and miscellaneous ESI (e.g., email)

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)

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

EEOC v. JP Morgan Chase Bank, N.A., 295 F.R.D. 166 (S.D. Ohio 2013)

Key Insight: Defendant’s failure to establish a litigation hold and resulting loss of relevant data through routine purge was inexcusable and presented exceptional circumstances that removed such conduct from the protections provided by Rule 37(c); as sanction, court denied defendant’s motion for summary judgment which turned in part on skill login data, and would give permissive adverse inference instruction regarding the destroyed evidence at trial

Nature of Case: Sex discrimination claims

Electronic Data Involved: Skill login data

Fawcett v. Altieri, 960 N.Y.S.2d 592 (N.Y. Sup. Ct. 2013)

Key Insight: Court acknowledged the discoverability of social media content but reasoned that ?[i]n order to obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand,? and thus denied defendant’s motion to compel

Nature of Case: Personal injury

Electronic Data Involved: Social network content (Facebook, MySpace, Friendster, Flickr, etc.)

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