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October 2017 Ediscovery Case Summaries

Court Issues Sanctions for Loss of Cell Phone Data by Non-Party, Holding that “Control” for FRCP 37(e) Applies to Non-Parties
Ronnie Van Zant, Inc. v. Pyle, 2017 U.S. Dist. LEXIS 138039 (S.D.N.Y. Aug. 28, 2017)

Court Declines to Impose Sanctions for Litigation Hold that Gave Employees Self-Preservation Discretion
N.M. Oncology & Hematology Consultants v. Presbyterian Healthcare Servs., 2017 U.S. Dist. LEXIS 130959 (D.N.M. Aug. 16, 2017)

Citing “Reasonably Calculated” in Discovery Request is “All Too Familiar, But Never Correct”
Pothen v. Stony Brook Univ., 2017 U.S. Dist. LEXIS 146026 (E.D.N.Y. Sept. 8, 2017)

Court Emphasizes Equal Use of the Rule 26(b)(1) Proportionality Factors
Oxbow Carbon & Minerals LLC v. Union Pac. R.R., 2017 U.S. Dist. LEXIS 146211 (D.D.C. Sept. 11, 2017)

For Productions “Reasonably Usable Form” (and Not “Form Ordinarily Maintained”) Is the Standard for FRCP 34
Ortega v. Mgmt. & Training Corp., 2017 U.S. Dist. LEXIS 3861 (D.N.M. Jan. 6, 2017)

September 2017 Ediscovery Case Summaries

Court Orders an Aggressive Production Timeline, Citing Efficiencies of TAR
Rabin v. Pricewaterhousecoopers LLP, 2017 U.S. Dist. LEXIS 125404 (N.D. Cal. Aug. 08, 2017)

Court Puts the Brakes on Auto Manufacturer’s Proposed Discovery Protocol Involving an Onerously Restrictive Onsite Inspection
Pertile v. GM, 2017 U.S. Dist. LEXIS 141088 (D. Colo. Aug. 31, 2017)

Court Rules that Asking for Everything is Overly Broad and Unacceptable
Mirmina v. Genpact LLC, 2017 U.S. Dist. LEXIS 90422 (D. Conn. June 13, 2017)

Mere Speculation is Not Enough to Compel an Additional Search for ESI
Mirmina v. Genpact, 2017 WL 3189027 (D. Conn. July 27, 2017)

Privilege Waived as a Result of Reckless Production and Inadequate Clawback Agreement
Irth Sols. v. Windstream Commc’ns, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017)

August 2017 Ediscovery Case Summaries

Court Swiftly Denies Pop Star Defendant’s Motion for Adverse Inference, but Allows Defendant to Cross-Examine Plaintiff About Spoliation in Front of Jury
Mueller v. Swift, 2017 U.S. Dist. LEXIS 112276 (D. Colo. July 19, 2017)

Potentially Relevant Documents, Marked as Non-responsive, Unable to Remain a Secret in Trade Secret Theft Case
Nachurs Alpine Sols., Corp. v. Banks, 2017 U.S. Dist. LEXIS 104778 (N.D. Iowa July 7, 2017)

No Harm, No Foul: In Spoliation of Evidence Case, Court Unable to Apply Sanctions Without Prejudice
Snider v. Danfoss, 2017 U.S. Dist. LEXIS 107591 (N.D. Ill. July 12, 2017)

Failure to Abide by Court’s Discovery Order Leads to Sanctions
Bird v. Wells Fargo Bank, 2017 U.S. Dist. LEXIS 113455 (E.D. Cal. July 20, 2017)

Violation of Privacy is Not a Complete Defense: Supreme Court of California Grants Plaintiff’s Motion to Compel Contact Information of Fellow Employees
Williams v. Superior Court, 2017 Cal. LEXIS 5124 (Cal. July 13, 2017)

July 2017 Ediscovery Case Summaries

Court Orders Partial Cost-Shifting, with Plaintiff’s Counsel to Bear ESI Production Costs for Lack of “Meaningful Meet-and-Confer Sessions”
Bailey v. Brookdale Univ. Hosp., 2017 U.S. Dist. LEXIS 93093 (E.D.N.Y. June 16, 2017)

A Tale of Two Phones: Court Forbids “Fishing Expedition” for Deleted Personal Data on Employer-issued Cell Phone, but Authorizes Discovery of Relevant Data from Personal Cell Phone
Tingle v. Hebert, 2017 U.S. Dist. LEXIS 88936 (M.D. La. June 8, 2017)

Court Finds Data Storage, Processing, Review and Production Costs as Non-Taxable in Post-Trial Motion
Wis. Alumni Research Found. v. Apple, Inc., 2017 U.S. Dist. LEXIS 86418 (W.D. Wis. June 6, 2017)

Sanctions Motion Denied Where There is No Prejudice or Intent to Deprive and Documents Could Have Been Restored or Replaced Through Additional Discovery
Eshelman v. Puma Biotechnology, Inc., 2017 U.S. Dist. LEXIS 87282 (E.D.N.C. June 7, 2017)

Court Denies Motion for Sanctions After Discovery Period Ends
Kennedy v. Supreme Forest Prods., 2017 U.S. Dist. LEXIS 77005 (D. Conn. May 22, 2017)

June 2017 Ediscovery Case Summaries

Should We Split It? Court Denies Defendant’s Motion to Be Relieved from Discovery Costs
Hawa v. Coatesville Area Sch. Dist., 2017 U.S. Dist. LEXIS 37675 (E.D. Pa. Mar. 16, 2017)

Hold Onto the Phone: Turning in Phone for Rebate has Preservation Consequences
Montgomery v. Iron Rooster-Annapolis, 2017 U.S. Dist. LEXIS 71338 (D. Md. May 9, 2017)

Court Grants Terminating Spoliation Sanctions Due to Abusive Litigation Practices
OmniGen Research v. Wang, 2017 U.S. Dist. LEXIS 78107 (D. Or. May 23, 2017)

Court Orders Parties to Meet and Confer to Determine Scope of Discovery Request
Elhannon v. F.A. Bartlett Tree Expert Co., 2017 U.S. Dist. LEXIS 58693 (D. Vt. Apr. 18, 2017)

Texas Supreme Court Weighs in on Native File Format Production
In re State Farm Lloyds, 2017 Tex. LEXIS 482 (Tex. May. 26, 2017)

May 2017 Ediscovery Case Summaries

The Court Denies the Plaintiff’s Patently Overbroad Discovery Requests
Rockwell Med., Inc. v. Richmond Bros., 2017 U.S. Dist. LEXIS 57313 (E.D. Mich. Apr. 14, 2017)

Court “Rather Reluctantly” Intervenes in Discovery Dispute, Prefers the Use of TAR Before Culling by Search Terms
FCA US LLC v. Cummins, Inc., 2017 U.S. Dist. LEXIS 45212 (E.D. Mich. Mar. 28, 2017)

Sanctions Decision Generates “Considerable Heat” and Split of Authority; Supreme Court Ultimately Reverses $2.7 Million Award
Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (Apr. 18, 2017)

Dialing the Wrong Number Has Its Consequences: Court Grants Motion to Compel Against Debt Collector
Meredith v. United Collection Bureau, Inc., 2017 U.S. Dist. LEXIS 56783 (N.D. Ohio Apr. 13, 2017)

Hold the Phone: No Sanctions for Destroyed ESI When Content Is Unknown and Other Routes to Discover ESI Are Available
Zamora v. Stellar Mgmt. Grp., 2017 U.S. Dist. LEXIS 55361 (W.D. Mo. Apr. 11, 2017)

50 States: Civil Procedure Rules in State Court – Part 1

The 2015 FRCP Amendments have been in effect for over a year and federal courts have been increasingly vocal in the areas of proportionality, spoliation and sanctions. Have states followed suit?

The last time KrolLDiscovery rolled out a comprehensive look at state ediscovery rules was after the 2006 FRCP Amendments. Back then, we saw that some states had been quick to address ediscovery, with many states adding their own unique flavor. Fast forward to the 2015 FRCP Amendments: Are states adopting the new language in their civil procedure rules or are they taking their own approaches?

At KrolLDiscovery, we have been looking at each states’ civil procedure rules, and we are excited to bring you the first of our updates. Here is the latest on what three states have been doing since the 2015 FRCP Amendments were enacted.

Texas, An Ediscovery Pioneer

The Lone Star State was one of the first jurisdictions to enact ediscovery rules and it lives up to its name by writing its own rules. Currently, its focus is on the spoliation of evidence, as the current rules are not clearly defined. In April 2016, the Texas Supreme Court requested review of a proposal that would solve this problem. No decisions have been made yet, but it has joined federal courts in making this a central discovery issue in 2017.

Examine current information on state ediscovery rules in Texas.

Massachusetts Takes One Step Forward with Rule 1

In Massachusetts, lawmakers initially proposed adopting the 2015 FRCP Amendments and the issue was intensely debated. Ultimately, the state decided to stick with the 2006 language, but made an exception for Rule 1, placing equal responsibility on the parties and the courts to “ensure the just, speedy, and inexpensive determine of every action,” promoting cooperation among litigants.

Look at developments in state ediscovery rules in Massachusetts.

New York Does Its Own Thing

New York has adopted its own ediscovery framework by adding subtle ESI accommodations to its existing rule language. For example, it adds an entire section addressing ediscovery from non-parties and requires counsel for parties who anticipate ediscovery to be “sufficiently versed in . . . their clients’ technological systems to discuss [ediscovery issues] competently” at pretrial conferences.

Learn more about state ediscovery rules in New York.

Over the next month, we will work to update each of the 50 states on our Rules and Statutes Map. If you are tracking ediscovery provisions in state courts, stay tuned throughout the next month for further updates!

April 2017 Ediscovery Case Summaries

Seller’s Remorse: Court Imposes Sanctions for Failure to Preserve ESI in Sale of Business
ILWU-PMA Welfare Plan Bd. of Trs. v. Connecticut Gen. Life. Ins. Co., 2017 WL 345988 (N.D. Cal. Jan. 24, 2017)

Court Acts Under Its Own Power to Impose Sanctions for Intentional ESI Spoliation
Hsueh v. N.Y. State Dep’t of Fin. Servs., 2017 WL 1194706 (S.D.N.Y. Mar. 31, 2017)

Hold the Pepperoni: “Menacing Scourge” of Boilerplate Responses Leaves a Rancid Taste in Judge’s Mouth
Liguria Foods, Inc. v. Griffith Labs., Inc., 2017 WL 976626 (N.D. Iowa March 13, 2017)

Angie’s List Receives a Negative Review: Court Compels Production of ESI
Williams v. Angie’s List, Inc., 2017 U.S. Dist. LEXIS 54270 (S.D. Ind. Apr. 10, 2017)

Court Finds That “Form Over Substance” Does Not Satisfy Motion to Compel Production of ESI
Duffy v. Lawrence Mem. Hosp., 2017 U.S. Dist. LEXIS 49583 (D. Kan. Mar. 31, 2017)

March 2017 Ediscovery Case Summaries

Judge Peck Has Had Enough of “Meaningless Boilerplate Responses”
Fischer v. Forrest, 2017 U.S. Dist. LEXIS 28102 (S.D.N.Y. Feb. 28, 2017)

“Unusually Deplorable” Conduct Costs Plaintiff $7 Million in Sanctions
Shawe v. Elting, 2017 Del. LEXIS 61 (Del. Feb. 13, 2017)

Ignorance of the Technology is No Excuse; Businesses Have a Duty to Ensure Confidential Information Cannot be Accessed
Harleysville Ins. Co. v. Holding Funeral Home, Inc., 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)

California Department of Education Gets Schooled in Ediscovery Production Formats
Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ., 2017 U.S. Dist. LEXIS 14983 (E.D. Cal. Feb. 1, 2017)

Court Finds That “Form Over Substance” Does Not Satisfy Motion to Compel Production of ESI
Excel Enters. v. Winona PVD Coatings, 2017 U.S. Dist. LEXIS 22932 (N.D. Ind. Feb. 17, 2017)

February 2017 Ediscovery Case Summaries

Court Narrows the Scope of Social Media Discovery
Scott v. United States Postal Serv., 2016 U.S. Dist. LEXIS 178702 (M.D. La. Dec. 27, 2016)

Court Imposes Sanctions for Failure to Preserve Phone Call Recordings
Sec. Alarm Fin. Enters., L.P. v. Alarm Protection Tech., LLC, No. 3:13-cv-00102-SLG, 2016 WL 7115911 (D. Alaska Dec. 6, 2016)

Court Delivers a Package of Proportionality and Cooperation in Class Action
Solo v. UPS Co., 2017 U.S. Dist. LEXIS 3275 (E.D. Mich. Jan. 10, 2017)

Court Schools Parties on Duty to Preserve and Finds No Act of Spoliation
Archer v. York City Sch. Dist., 2016 U.S. Dist. LEXIS 178969 (M.D. Pa. Dec. 28, 2016)

“Mere Speculation” of Spoliation is Not Enough to Issue Sanctions Under Rule 37(e)
HCC Ins. Holdings, Inc. v. Flowers, 2017 U.S. Dist. LEXIS 12120 (N.D. Ga. Jan. 30, 2017)

 
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