Metadata – Page 7 – Electronic Discovery Law

Knoderer v. State Farm Lloyds, No. 06-13-00027-CV, 2014 WL 4699136 (Tex. App. Sep. 19, 2014)

Dec 01 2014

Key Insight: Trial court erred in granting remarkable discovery sanctions of procedural “death penalty” together with over $1 million in sanctions against plaintiffs, as destroyed evidence did not go to heart of case, but was, instead, impeachment evidence; record did not reflect the required consideration by trial court of appropriate lesser sanctions or an explanation of why case was exceptional and lesser sanctions would be inadequate; and court wrongly awarded attorneys’ fees, expert fees, and costs for the entire case rather than those related only to the sanctionable conduct

Nature of Case: Insurance dispute

Electronic Data Involved: Digital photographs

AKH Co., Inc. v. Universal Underwriters Ins. Co., No. 13-2003-JAR-KGG, 2014 WL 2760860 (D. Kan. June 18, 2014)

Dec 01 2014

Key Insight: Where plaintiff requested that documents be produced in native format but defendant produced documents in both hard copy format and in a few very large PDF files, court found that defendant had adequately explained why the documents were not produced in their native format (proprietary nature of certain software used by defendant, defendant’s right to withhold privileged information, need to limit production of irrelevant information regarding unrelated policyholders, the added costs of re-producing information already submitted to plaintiff in converted PDF format), and ruled that, absent a need for metadata as to a particular document, it would not require defendant to re-produce the information

Nature of Case: Insurance coverage and settlement of trademark dispute

Electronic Data Involved: ESI

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

Sprint Commc?ns Co., L.P. v. Comcast Cable Commc?ns, LLC, Nos. 11-2684-JWL, 11-2685-JWL, 11-2686-JWL, 2014 WL 1794552 (D. Kan. May 6, 2014)

Dec 01 2014

Key Insight: Evaluating parties’ competing discovery protocols, court noted that defendants had not asked Sprint to collect documents from 60+ custodians, but, rather, faced with Sprint?s failure to identify potential custodians in violation of the agreed discovery order, defendants started suggesting people and asked Sprint either to search those individuals? files or explain why production from particular custodians on list was not necessary; court disapproved of Sprint?s continued failure to work with defendants to reach a reasonable solution, rejected as ?clearly unreasonable? Sprint?s proposal to collect responsive documents from only 12 new custodians, and ordered Sprint to sit down with defendants in a good faith attempt to resolve the issue; court further ordered Sprint to include in its document searches a ?human review? of hard copy documents

Nature of Case: Consolidated cases involving patent infringement claims

Electronic Data Involved: ESI; documents produced in prior litigations; metadata

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

Amdocs (Israel) Ltd. v. Openet Telecom, Inc., No. 1:10cv910 (LMB/TRJ), 2013 WL 1192947 (E.D. Va. Mar. 21, 2013)

Dec 01 2013

Key Insight: Court found that ?costs of converting the documents in the format agreed upon by the parties are properly taxable? but that ?metadata extraction? could not be ?properly analogized to making copies and that such costs were not taxable; where costs associated with metadata extraction were not identified separately from ?production copying, file conversion, and metadata extraction? on invoices, court reduced requested costs by one third

Nature of Case: Patent Infringement

Electronic Data Involved: taxable costs for electronic discovery

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

Athome Care, Inc. v. The Evangelical Lutheran Good Samaritan Soc?y, No. 1:12-cv-053-BLW, 2013 WL 1819691 (D. Idaho Apr. 30, 2013)

Dec 01 2013

Key Insight: Court addressed Plaintiff?s motion to compel production of metadata and, noting that Defendant ?would have produced the requested metadata but for an inadvertent change to the creation date on certain documents,? indicated that the real question was ?how to resolve that mistake, which essentially requires the court to apply the Rule 26(b)(2)(C) balancing test;? court considered fact that Defendant ?created the problem? although not in bad faith (?accidents happen?) and further found that the burden of production was not ?all that great? and ordered the production of the requested metadata

Nature of Case: Breach of contract/licensing agreement

Electronic Data Involved: metadata

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

St. Jude Medical S.C. Inc. v. Tormey, No. 11-cv-00327, 2013 WL 3270374 (D. Minn. Mar. 25, 2013)

Dec 01 2013

Key Insight: Court addressed Plaintiff?s motion for sanctions for alleged fabrication of evidence and violation of the court’s order to produce certain hardware (computers, hard drives) related to the alleged fabrication but denied sanctions where Defendant consistently claimed he had no additional hardware to be produced and consistently stuck with his explanations related to the creation of the allegedly fabricated documents and surrounding circumstances; regarding fabrication, court explained that ?Discrepancies and inconsistencies without more, however, do not necessarily fabrication make.?; as to both spoliation and fabrication court indicated it would be up to the jury to decide who to believe

Nature of Case: Claims related to loan repayment and whether loan to defendant was forgiven in “walk-away” agreement

Electronic Data Involved: Contents of hard drives

Tag:Metadata