Tag:Third Party Discovery

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Baranski v. United States, No. 4-11-CV-123 CAS, 2015 WL 3505517 (E.D. Mo. June 3, 2015)
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Andra Grp. LP v. JDA Software Grp., LLC, No. 3:15-mc-K-BN, 2015 WL 1636602 (N.D. Tex. April 13, 2015)
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Andra Grp. LP v. JDA Software Grp., Inc, No. 3:15-mc-11-K-BN, 2015 WL 12731762 (N.D. Tex. April 13, 2015)
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Cormack v. United States, No. 13-232C, 2014 WL 3555255 (Fed. Cl. July 18, 2014)
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Sasol N. Am., Inc. v. Kan. State Inst. for Commercialization, No. 14-mc-218-JWL-KMH, 2014 WL 3894357 (D. Kan. Aug. 8, 2014)
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Mazzei v. Money Store, No. 01cv5694 (JGK)(RLE), 2014 WL 3610894 (S.D.N.Y. July 21, 2014)
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E.E.O.C. v. Forge Ind. Staffing, Inc., No. 1:14-mc-00090-SEB-MJD, 2014 WL 6673574 (S.D. Ind. Nov. 24, 2014)
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Cheng v. Lake Forest Assocs., No. CBD-13-1365, 2014 WL 2964082 (D. Md. June 30, 2014)
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Finkle v. Howard Cnty., Md., No. SAG?13?3236, 2014 WL 6835628, (D. Md. Dec. 2, 2014)
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Samuel v. United Corp., No. ST-12-CV-457, 2014 WL 2608839 (V.I. Super. Ct. May 21, 2014)

Baranski v. United States, No. 4-11-CV-123 CAS, 2015 WL 3505517 (E.D. Mo. June 3, 2015)

Key Insight: Court found privilege had been waived where at-issue documents were intermingled with non-privileged documents and produced in a consecutively numbered batch, where the government provided no information regarding how the documents were reviewed, where there was an almost 2 year delay until the production of the privilege log, where the documents were not marked as privileged, where approximately 10% (58/570) of the documents produced were privileged, where at least one privileged document was used as an exhibit in deposition without objection and where the government did not discover the allegedly inadvertent disclosure for nearly two years; where defendant provided evidence of the cost and burden of restoring backup tapes (14 weeks of work at a cost of approximately $85,400) court concluded that at-issue emails were not reasonably accessible and declined to compel production where plaintiff failed to establish that the emails may contain significant information

Electronic Data Involved: ESI, emails

Andra Grp. LP v. JDA Software Grp., LLC, No. 3:15-mc-K-BN, 2015 WL 1636602 (N.D. Tex. April 13, 2015)

Key Insight: Court addressed 3rd party?s motion to quash allegedly burdensome subpoena and to preclude further production or to require the defendant to pay for the non-party?s expenses and found that the defendant had demonstrated its needs for ?most of the categories of documents? but also concluded that the 3rd party?s objections should be sustained in part and modified the subpoena?s requests to reduce the burden; Court rejected arguments that 3rd party?s lack of a ?dedicated IT specialist?, use of cloud based email and need to rely on employees? and or hire a vendor establish burden; court also found that ?by producing the documents in non-readable PDF format without the metadata specified by the subpoena?s instructions, and failing to serve any written objections to those instructions, p202 failed to comply with Rule 45(a)(1)(C) and 45(e)(1)?s requirement to comply with the subpoena?s specification of a form for producing ESI? and ordered re-production in accordance with the subpoena?s instruction

Electronic Data Involved: ESI

Andra Grp. LP v. JDA Software Grp., Inc, No. 3:15-mc-11-K-BN, 2015 WL 12731762 (N.D. Tex. April 13, 2015)

Key Insight: Magistrate Judge concluded that absent evidence of a special relationship or circumstance that imposed a duty to preserve evidence, a third party did not have an obligation to preserve evidence before it was served with a subpoena, even though it was aware of potential litigation against a party with whom it had a close working relationship. Where the non-party was ordered to search for and produce all responsive information but limited its search to its ShareFile and failed to adequately investigate whether responsive information existed on its computers and other devices, the Magistrate judge reasoned that compliance required more than ?simply asking current employees if they have responsive documents? and concluded that third party?s mere survey of current employees (omitting an employee with a difficult personality) as to whether they had responsive emails without an attempt to search or forensically image any devices in its custody failed to satisfy the Discovery Order?s request to make ?all reasonable efforts to search? for potentially relevant documents, violating Rule 45(g).

Electronic Data Involved: ESI

Cormack v. United States, No. 13-232C, 2014 WL 3555255 (Fed. Cl. July 18, 2014)

Key Insight: Court found no waiver resulting from the production of a privileged email (work product) in light of the scope of discovery (more than one million pages produced), defendant?s use of ?advanced software to screen for privilege,? and the ?numerous steps? intended to protect privilege as outlined for the court and because counsel sought the email?s return ?within hours? of receiving a filing with the email attached; defendant was also found to be in control of documents in the possession of a ?wholly owned but indirect French subsidiary? in light of the companies? collaboration on the at-issue software as illustrated by the companies? representations to the potential client regarding their collaboration, agreements between the companies, and the close working relationship between the two

Nature of Case: Patent infringement

Electronic Data Involved: Email, documents in possession of non-party

Sasol N. Am., Inc. v. Kan. State Inst. for Commercialization, No. 14-mc-218-JWL-KMH, 2014 WL 3894357 (D. Kan. Aug. 8, 2014)

Key Insight: Despite fact that plaintiff served all-encompassing subpoena to third parties without first attempting to access the breadth of information from the defendant, in light of nonparty?s unique relationship with defendant in the underlying Texas litigation, the potential for indemnification, its financial interest in the Texas litigation, and nonparty?s repeated (yet unfulfilled) promises to produce responsive material, court determined it was appropriate for nonparty to bear some burden and that limited production was appropriate; court narrowed relevant timeframe for search and ordered nonparty to use search terms proposed by plaintiff and produce its ESI, including emails, attachments, exhibits and word processing documents, which contain those nine search terms

Nature of Case: Subpoena issued in a patent infringement and trade secret case pending in the Southern District of Texas

Electronic Data Involved: Email

Mazzei v. Money Store, No. 01cv5694 (JGK)(RLE), 2014 WL 3610894 (S.D.N.Y. July 21, 2014)

Key Insight: Defendant failed to preserve data in its control (an issue it hotly contested) when it sold certain assets of its wholly owned subsidiary, including the database/?system? that contained the at issue data; court found failure to preserve was willful and in bad faith and that plaintiff had been prejudiced by the loss; where a non-party who works with defendant indicated that it had information from the at issue system but that the information was not ?readable? and that it would be expensive to extract and convert it, the court ordered defendant to bear the cost of determining whether the system was searchable and to pay plaintiff his attorneys fees for the motion for sanctions

Nature of Case: Class action re: violation of Truth in Lending Act

Electronic Data Involved: Database

E.E.O.C. v. Forge Ind. Staffing, Inc., No. 1:14-mc-00090-SEB-MJD, 2014 WL 6673574 (S.D. Ind. Nov. 24, 2014)

Key Insight: Where former employee filed claim with EEOC alleging sexual harassment and retaliation, and EEOC issued a subpoena to employer staffing agency seeking information to determine how long the staffing agency had required applicants to waive statutorily protected statutes of limitations, court declined to enforce the subpoena, finding that the EEOC’s subpoena exceeded its authority in that the information sought went beyond the issues arising out of former employee?s individual charge; court further determined that the burden imposed on the staffing agency far exceeded the minimal relevance of the evidence sought, given that staffing agency processed 130,000 temporary employee applications during the time period covered by the subpoena, applications were not kept in a central repository or electronically, and compliance would require manual review of each employment application maintained in paper format at each of its ten office locations and would disrupt agency’s day-to-day operations

Nature of Case: Motion for enforcement of administrative subpoena issued to staffing agency relating to investigation of former employee’s claim of sexual harrassment and retaliation

Electronic Data Involved: Versions of employment application form used by staffing agency between January 1, 2012 and May 31, 2014, including all pages of and revisions to each form

Cheng v. Lake Forest Assocs., No. CBD-13-1365, 2014 WL 2964082 (D. Md. June 30, 2014)

Key Insight: Court reasoned that ?[c]aselaw demonstrates that a contractual relationship between two parties, which privies one party to access documents or information physically possessed by the other, can be sufficient to establish the requisite control necessary to compel production of a discovery-related document[]? and found that defendant had such control over video surveillance footage in the possession of a third party and granted Plaintiff?s motion to compel

Nature of Case: Personal injury (Slip & fall)

Electronic Data Involved: video surveillance

Finkle v. Howard Cnty., Md., No. SAG?13?3236, 2014 WL 6835628, (D. Md. Dec. 2, 2014)

Key Insight: District Court granted Defendant?s Motion for Protective Order and denied Plaintiff?s Motion to Compel, finding that Plaintiff?s Interrogatory seeking the identification of all email accounts, social media services, internet discussion groups, cellular telephone or text messaging services used by certain County employees from January 2010 through the present, for the purpose of issuing a subpoena to the appropriate service providers, would impose an undue burden on Defendant and that Plaintiff was not lawfully entitled to the content of those accounts under the Stored Communications Act (?SCA?); regarding its reliance on the SCA, the court specifically reasoned that ?there is no reason to invite an unfettered ?fishing expedition? into the personal communications of non-party employees without a viable reason to believe that relevant information would be accessible to Plaintiff or would be contained therein.?

Nature of Case: Employment Discrimination (Title VII)

Electronic Data Involved: Account information for all email, social media (e.g., Facebook, MySpace), discussion groups, text messaging services, etc.

Samuel v. United Corp., No. ST-12-CV-457, 2014 WL 2608839 (V.I. Super. Ct. May 21, 2014)

Key Insight: Court declined to allow an adverse inference instruction as sanction for defendant’s alleged destruction of critical video footage that preceded her fall, and reiterated prior guidance from the Supreme Court of the Virgin Islands: “[U]pon reasonably foreseeable notice that evidence may be relevant to discovery, it is certainly not within the discretion of a store manager [or security officer] to determine what portion of the available recorded surveillance footage is relevant to anticipated litigation, even where surveillance video does not clearly show the cause of the accident”; court commented that routinely preserving only a minute and a half of footage prior to an accident teeters on the edge of being unreasonable, and recommended preservation of at least five minutes of surveillance footage of the area prior to the accident

Nature of Case: Slip-and-fall

Electronic Data Involved: Surveillance video footage

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