Federal Court Decisions Involving Electronic Discovery, December 1 ...

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Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009 2001) to rule that the defendant should restore a portion of its backup tapes to assist the court in determining whether cost-sharing was appropriate. Acker v. Workhorse Sales Corp., 2008 WL 1902034 (E.D. Mich. April 28, 2008). After a series of delays in the production of electronically stored information, the defendant moved to compel. The parties appeared before the Magistrate Judge and reached a stipulated agreement during a recess in the hearing. The Magistrate Judge endorsed the agreement, but went on to award the defendant costs and attorneys’ fees incurred in litigating the motion to compel. The plaintiff appealed the costs award to the District Judge, claiming that the delay in production was attributable to the defendant’s failure to give adequate production format directions. The court upheld the Magistrate Judge’s order as authorized by Rule 37(a)(5)(A), finding no error in law or abuse of discretion. Acorn, et al. v. County of Nassau, et al., 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009). In this civil right case, the plaintiffs moved for sanctions against the County for its failure to implement a legal hold. The court concluded that the defendant had a duty to preserve evidence in June of 2005, but it did not take any steps to preserve until September of 2006. The court found the County’s failure to execute a proper litigation hold amounted to gross negligence. The court held, however, that the "plaintiffs have not sufficiently demonstrated that any destroyed or lost materials would have been favorable to them and thus, to the extent plaintiffs’ motion seeks an adverse inference instruction is denied." The court imposed monetary sanctions on the defendants for the grossly negligent conduct in failing to implement a litigation hold and awarded the plaintiffs the costs of making the motion, including reasonable attorneys' fees. Adele S.R.L. v. Filene’s Basement, Inc., 2009 WL 855955 (S.D.N.Y. Mar. 24, 2009). In a trademark infringement suit, the plaintiff sought monetary sanctions against the defendant for failing to perform adequate searches and repeatedly making false assertions that discovery was complete. The court held that sanctions were available and that the defendant’s desire to shield adverse information was a likely motive for their inadequate production, but noted that motive was unnecessary in determining the appropriate monetary sanction. On another issue, the court denied the plaintiff’s request for reimbursement of costs for extracting and reviewing raw data from backup tapes produced by the defendants, ruling that the plaintiffs failed to establish that such costs would normally have been assumed by the defendants under Rule 26(b)(2). Adorno, et al. v. Port Authority of New York and New Jersey, 2009 U.S. Dist. LEXIS 27505 (S.D.N.Y. Mar. 31, 2009). In this racial discrimination case, the plaintiffs moved for sanctions for the defendants’ failure to implement a litigation hold and preserve certain relevant documents. The court held that there was not a sufficient showing to support an adverse inference instruction, as any failure to preserve documents was mere negligence, that the plaintiffs did not carry their burden in showing that the failure to produce documents was prejudicial, that there was other demographic information available, and that the hiring memos sought were only one-line statements of whether the individual was interested in a promotion. Copyright © 2009, The Sedona Conference ® 2 www.thesedonaconference.org
Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009 Aebischer v. Stryker Corp., 2006 U.S. Dist. LEXIS 87810 (C.D. Ill. Dec. 5, 2006). In a product liability/personal injury action in which the plaintiff was seeking $115,000 in damages, the plaintiff requested product experience reports. The defendant moved for an order shifting the costs of production, estimated to be $100,000. The defendant cited the cost shifting factors enunciated in Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 572 (N.D. Ill. 2004). The court rejected the defendant’s argument, as the Wiginton factors, similar to the factors enunciated in Rowe Entertainment and Zubulake I, applied only to electronic discovery, and the plaintiff had not requested electronic discovery. Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec., 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008). In a civil rights class action suit, the parties did not discuss the production of metadata in their Rule 26(f) conference and only mentioned it “in passing” by letter before the defendant had completed its document collection efforts. Later, the plaintiff requested that the defendants produce metadata from emails and electronic documents, and produce any spreadsheets and databases in native format. The defendants objected on relevance and burden grounds and proposed to produce all ESI as text-searchable .pdf format documents. The court engaged in a detailed analysis of the discoverability of metadata, drawing on the rules, the case law and Principle 12 of The Sedona Principles (Second Edition), concluding that timely requests for relevant and accessible metadata are routinely granted, but courts are reluctant to order a second production if metadata was not originally requested, nor will courts order the production of metadata or production in native format unless the metadata or format are relevant or will materially aide in search for relevant information. The court declined to order the defendant to repeat the collection of active email from employees or to attempt to capture email metadata from backup media. The court further found that the production of metadata related to word processing and PowerPoint documents would not materially enhance the plaintiffs’ ability to search the relatively small production nor was the metadata more than marginally relevant to the plaintiffs’ claims, and it would only order production if the plaintiff assumed all costs. The court ordered the production of spreadsheets in native form, as the defendant had expressed a willingness to do so. Finally, the court ordered that the defendant to demonstrate its hierarchical database for the plaintiff in a “training environment” using dummy data, to allow the plaintiffs’ expert to identify what metadata may be necessary to request. Ajaxo, Inc. et al., v. Bank of America Technology and Operations, Inc., 2008 U.S. LEXIS 97602 (E.D. Cal. Dec. 2, 2008). In a copyright infringement case, the plaintiff was ordered to produce its expert’s documents in searchable form. Instead, it produced 5 CDs of material in a non-searchable format several weeks after the discovery deadline. The defendant moved for sanctions including preclusion of the expert’s testimony and costs. The court declined to preclude the expert’s evidence, but required the plaintiff to pay costs for this motion and for the defendant to re-depose the expert. Ak-Chin Indian Cmty. v. U.S., 85 Fed. Cl. 397 (Ct. Fed. Cl. 2009); motion for reconsideration denied, ___ Fed. Cl. ___, 2009 WL 320333 (Fed. Cl. Feb 5, 2009). In an action brought by the plaintiff Indian tribe against the United States for breach of trust, Copyright © 2009, The Sedona Conference ® 3 www.thesedonaconference.org
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