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Case Law

Plaintiff Once Again Sanctioned with an Adverse Inference Instruction, But Still No Complete Dismissal: eDiscovery Case Law

In Lynn M. Johnson v. BAE Systems, Inc. et. al., Civil Action No. 11-cv-02172 (RLW) (D.D.C. May 27, 2015), District of Columbia District Judge Robert L. Wilkins granted the defendants’ motion for summary judgment with respect to the plaintiff’s claims for negligence, battery, and defamation, but chose to “impose lesser, but nonetheless severe, sanctions” in the form of an adverse inference instruction for her remaining claim for intentional infliction of emotional distress.

Case Background

The plaintiff, a U.S. government employee deployed in Iraq, sued the defendants for actions taken by its employee during a project that they worked on together, alleging “severe physical and emotional health problems”.  During discovery, the defendant requested medical records in preparation for an expert witness’s examination of the plaintiff – she provided the defendant with falsified medical records which she had edited in an effort to eliminate references to health issues that predated her deployment to Iraq. The defendant filed a motion for sanctions seeking dismissal and the Court granted in part and denied in part the motion, sanctioning the plaintiff and her counsel with fees and an adverse inference instruction.

Then, on September 25, 2013, the defendant requested a forensic examination of the plaintiff’s computer.  That evening, the plaintiff contracted with a local computer technician who performed various maintenance functions, which included running a program called CCleaner that is capable of permanently deleting files.  Subsequent forensic analysis showed that several Microsoft Outlook .pst email storage files were placed into the recycling bin and deleted on September 27.  The technician testified that the plaintiff did not tell him she was in litigation, she did not ask him not to delete anything from her computer and he did not place the Outlook files in the recycle bin. The defendants also requested Facebook messages, and the court found evidence that the plaintiff had tampered with those messages, as well.

Judge’s Ruling

Regarding the latest activities by the plaintiff, Judge Wilkins stated that “The Court finds by clear and convincing evidence that Ms. Johnson destroyed, attempted to destroy, or caused to be destroyed files on her computer with potential relevance to this case”, noting that “under no circumstances should Ms. Johnson have contracted with a computer technician to ‘clean up’ a computer sought for forensic imaging, particularly without making a disk image or even informing the technician of ongoing litigation. That she chose to do so is very troubling.”  Judge Wilkins expressed similar concern by the plaintiff’s failure to produce Facebook messages from earlier than February 2013.

Summarizing the behavior by the plaintiff, Judge Wilkins stated “Over the course of this suit, Ms. Johnson has repeatedly obfuscated the truth. She has altered medical records, contradicted herself in depositions and testimony before the Court, and failed to preserve and produce relevant documents during discovery.”  Still, Judge Wilkins could not bring himself to dismiss the case, stating “Although it is an exceedingly close question, the Court concludes that Ms. Johnson’s conduct does not merit this most serious of remedies.”

As a result, Judge Wilkins awarded the defendant an adverse inference instruction sanction against the plaintiff, awarded the forensic expert’s fees spent by the defendant’s expert and dismissed the plaintiff’s claims for negligence, battery, and defamation.

So, what do you think?  Should the repeated violations by the plaintiff have led to full dismissal?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff Ordered to Re-Produce Files in Native Format Because it Failed to Meet and Confer with Defendant: eDiscovery Case Law

You’d think a distributor of bar exam materials would know better…

In Themis Bar Review, LLC v. Kaplan, Inc., Case No. 14CV208-L, (S.D. Cal. May 26, 2015), California Magistrate Judge Barbara L. Major ordered the plaintiff pay for the cost to produce files in native format after the plaintiff originally produced unsearchable PDF images without metadata and failed to properly meet and confer with the defendant regarding production format as stipulated in the parties’ Joint Discovery Plan.

Case Background

On January 9, 2015, the plaintiff produced a CD-Rom containing spreadsheets reflecting the plaintiff’s pass rate statistics by jurisdiction and the records of its students’ bar exam results with the percentage of the plaintiff’s course work that each student had completed.  The spreadsheets were produced as PDF copies of the electronic files that had been Microsoft Excel spreadsheets – the produced PDF copies were stripped of their filtering, sorting, and searching capabilities.

On April 22, the plaintiff produced a hard drive containing 822,493 pages of email communications, again as imaged PDF files with no searchable text or metadata, despite the defendant’s repeated requests for the production to include extracted text.  The defendant had also previously offered to meet and confer to discuss the required production format.  The plaintiff ultimately responded by stating that the Joint Discovery Plan only required the production of PDF documents and that the parties had “never discussed producing the hard drive with extracted text, nor the . . . format of the hard drive production.”  The defendant responded that the Joint Discovery Plan sets forth a procedure for requesting the production of metadata that requires both sides to meet and confer regarding the request.

On May 7, the plaintiff produced the Mircosoft Excel spreadsheets in native format and explained “[p]reviously, you demanded that we provide the native files to you without explanation. For the first time, you explained in your motion to compel why Kaplan needed the files in native format.”  On May 12, the defendant offered to pay half of the cost – up to $8,200 – for the plaintiff “to produce the e-mails and attachments in the format we have specified in our motion”, but the plaintiff refused, stating they would only do so if the defendant paid the entire cost to re-produce.

Judge’s Ruling

With regard to the dispute regarding the Joint Discovery Plan, Judge Major excerpted the portion of the plan at issue, including this passage:

“If a party believes, on a case-by-case basis, that documents should be produced in a format other than native format, or that metadata should be produced, the parties collectively agree that they will meet and confer in good faith to discuss such alternative production arrangements.”

As a result, Judge Major ruled as follows:

“Based on the evidence provided by the parties and for the reasons set forth herein, the Court DENIES AS MOOT Defendant’s request that Plaintiff reproduce the spreadsheets in native format, GRANTS Defendant’s request for production of the emails with associated metadata in searchable format, and REQUIRES Plaintiff to pay for the cost of reproducing the emails with the associated metadata in searchable format. The Court finds that it is appropriate that Plaintiff pay for the reproduction because Plaintiff ignored Defendant’s request to produce the documents in the native format with metadata, failed to meet and confer with Defendant as required by the Joint Discovery Plan, and then produced the documents in the unsearchable PDF format without metadata.”

So, what do you think?  Should the plaintiff have been ordered to re-produce the documents at their own cost?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Judge Recommends Default Judgment Sanctions Against Defendants, Even Though Some Deleted Files Were Recoverable: eDiscovery Case Law

In Malibu Media, LLC v. Tashiro, Case No. 13-cv-00205 -WTL-MJD (S.D. Ind. May 18, 2015), Indiana Magistrate Judge Mark J. Dinsmore issued a Report and Recommendation on Plaintiff’s Motion for Sanctions, recommending that the Court grant the plaintiff’s motion against the defendants for spoliation of evidence and perjury and enter default judgment against the defendants.

Case Background

In 2013, the plaintiff retained a German company to investigate whether certain internet users were infringing plaintiff’s copyrights by uploading and/or downloading its copyrighted adult movies via a BitTorrent client and, after monitoring the BitTorrent file distribution network, the provider identified certain IP addresses that were being used to distribute Plaintiff’s copyrighted movies.  The plaintiff initially filed suit against an unidentified defendant, but amended the complaint to name the defendants after the plaintiff subpoenaed the alleged infringer’s ISP.

During discovery, one of the defendants agreed to provide her computer hard drives for forensic imaging.  The plaintiff’s expert examined each of the images of the hard drives for evidence of BitTorrent use, finding evidence on one drive that the “hard drive was repeatedly used to download BitTorrent files and also had BitTorrent software installed on the hard drive.”  He also determined that numerous files and folders associated with BitTorrent use had been deleted the night before the drive was turned over for imaging.  In addition, the expert determined that three additional drives had been connected to the defendant’s laptop computer, but had not been turned over for imaging.  As a result, the plaintiff filed a motion for sanctions alleging spoliation of evidence and perjury in the form of misrepresentations by defendants at their depositions and in their responses to various discovery requests.  The defendants argued that because the files were recoverable, spoliation had not occurred, but the contention that all the deleted files were recoverable was disputed by the plaintiff.

Judge’s Ruling

With regard to the recoverability of the files, Judge Dinsmore stated “Based on the relative credentials of the parties’ experts, the Court concludes that Patrick Paige’s testimony is more accurate and more credible. As such, the Court finds it highly likely that thousands of files were deleted and were unrecoverable. This confirms that Defendant Charles did not temporarily delete relevant evidence; instead, he permanently destroyed that evidence. As a result, Charles is liable for spoliation.”  He also noted that “even if the files that Charles deleted had been recoverable, this would not absolve Charles of liability” as the metadata associated with those recovered files would have been altered, which “would impede Plaintiff’s use of those files in proving its underlying claim of copyright infringement”.

As for the perjury claim, while finding some of the defendants’ answers not to constitute perjury, Judge Dinsmore failed to reach that conclusion regarding at least one of the drives that the defendant failed to disclose.  He stated that “At best, her omission of the XPS 600 from her discovery responses resulted from an egregious failure to reasonably investigate whether her interrogatory answers were complete. At worst, her failure to include the XPS 600 was a knowing and intentional omission that indicates that she did in fact commit perjury.”

Finding that “a sanction short of default would not appropriately address the goals of deterrence and punishment”, Judge Dinsmore recommended that the Court grant the plaintiff’s motion against the defendants for spoliation of evidence and perjury and enter default judgment against the defendants.

So, what do you think?  Was the recommendation of severe sanctions appropriate in this case?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff Ordered to Image its Sources of ESI, Respond to Disputed Discovery Requests: eDiscovery Case Law

In Electrified Discounters, Inc. v. MI Technologies, Inc. et al., Case No. 3:13cv1332 (RNC) (D. Conn. May 19, 2015), Connecticut Magistrate Judge Donna F. Martinez granted the defendant’s motion to compel the plaintiff ‘s responses to discovery and ordered the plaintiff to “image its sources of electronically stored information (‘ESI’), including its hard drives and QuickBook files”.

Case Background

In this trademark infringement case between competitors who sell replacement lamps for rear projection televisions and front projectors via online marketplaces, the defendants filed a motion to compel the plaintiff ‘s responses to discovery and argued that the plaintiff failed to issue a timely litigation hold and that the plaintiff’s production of ESI was “careless and indifferent.”  Specifically, the defendant stated that the plaintiff anticipated filing a lawsuit against the defendant in 2011, but that the plaintiff’s attorney admittedly did not counsel his client regarding its duty to retain relevant information until 2013 when the lawsuit was filed.

Additionally, in March 2015, the plaintiff’s company president testified in his deposition that he routinely deletes emails based on their age when his mailbox becomes full, that he deletes emails about once a month, that he continued to delete emails during this litigation and, on the day before his deposition, he deleted approximately 1000 emails.  Other records also were admittedly destroyed by the plaintiff company, which responded to the defendant’s request for plaintiff’s lamp sales that “[a]s part of its routine business practices, Electrified discards its records of lamps sales after approximately one year following payment.”

Judge’s Ruling

With regard to the defendant’s criticism of plaintiff’s failure to institute a timely litigation hold and its careless and indifferent production efforts after the duty to preserve arose, Judge Martinez stated “After reviewing the deposition testimony of Electrified’s witnesses, the court agrees that the defendant’s concern is well-founded.”  Those depositions included one plaintiff employee, who testified that his company uses a Quickbooks program, which contains detailed inventory and sales records dating back to 2006 as well as the company president, who also acknowledged that the Quickbook database contains inventory and sales information.

Citing Pension Committee and Zubulake, Judge Martinez stated that “The duty to preserve evidence is ‘well established.’”  With regard to the plaintiff’s admitted preservation failures, she stated “This cannot continue. Pending the final disposition of all claims in this action, plaintiff Electrified is ordered to preserve all documents, electronically-stored information, and/or tangible things that might be relevant to this subject matter or reasonably calculated to lead to the discovery of admissible evidence in this action.”  In an attempt to limit further spoliation of data, Judge Martinez stated that the plaintiff “shall image its sources of electronically stored information (‘ESI’), including its hard drives and QuickBook files.”

With regard to the twenty discovery requests in dispute, Judge Martinez granted the defendant’s motion to compel for each one, ordering the plaintiff to search and produce responsive ESI within 14 days of the order.  She also ordered the plaintiff “to show cause by June 2, 2015 why the court should not award defendant [requested] attorney’s fees incurred in the making of the motion to compel pursuant to Rule 37(a)(5).”

So, what do you think?  Are sanctions the next step in this case?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

New York Supreme Court Sanctions Two Attorney Defendants for “Egregious Misconduct” in Spoliation of Data: eDiscovery Case Law

In HMS Holdings Corp. v. Arendt, et al., 2015 NY Slip Op 50750(U) (Sup. Ct., Albany County, May 19, 2015), the New York Supreme Court in Albany County ordered a mandatory adverse inference instruction so that the trier of fact could “draw the strongest possible adverse inference from defendants’ bad faith and intentional destruction, deletion and failure to produce relevant evidence”. The court also awarded attorney fees, and forwarded a copy of the order regarding Defendant Lange to the New York State Committee on Professional Standards for attorneys.

Case Background

In this business litigation against the defendants who were former employees of the plaintiff, the parties to this case entered into a stipulation in September 2014 providing that defendants would forensically image all personal and work computers, flash or zip drives, and all mobile devices in their possession, custody or control. After the defendants provided the forensic images to the plaintiffs and their forensics expert for review, the plaintiffs’ expert alleged that defendants Curtin and Lange (both licensed attorneys) had intentionally and deliberately destroyed relevant electronically stored information. The instances of spoliation as alleged by the plaintiff’s expert were as follows:

  • Curtin used the Secure Erase wiping software on his laptop six times in September 2014, after the litigation hold had gone into effect – he claimed that he did so to improve the performance of his laptop;
  • Curtin also failed to produce a Toshiba hard drive (to which he was found to have copied a considerable volume of confidential defendant business materials the day before he terminated his employment with the defendant) claiming he could not find the drive;
  • “Shadow Copies” on Lange’s laptop revealed that there were documents in a directory of Lange’s hard drive containing the term “HMS” that no longer were present on September 15, 2014, when the computer was produced for forensic imaging;
  • Lange also failed to produce text messages from her iPhone 4, which she replaced in August 2014. She claimed that the store where she purchased it could not transfer data to her new phone; however, the plaintiff’s expert found data from her personal computer indicating that she had backed up her old iPhone to the computer after she purchased the new phone.

The plaintiffs requested sanctions against those defendants. In a Decision & Order dated March 2, 2015, the Court held as follows:

“Through the affidavit of its computer forensics expert and the documentary evidence submitted in support of the motion, HMS has made a prima facie showing that Curtin and Lange engaged in the spoliation of potentially relevant ESI with a culpable mental state during the pendency of this action.”

The court called for an evidentiary hearing, which was held on March 24, 2015, to hear the testimony of defendants and the parties’ computer experts.

Court’s Ruling

Noting the options that Curtin had selected with the Secure Erase software (“Erase” instead of “First Aid”, “Most Secure” instead of “Fastest”), the Court stated that it “does not find Curtin’s explanation for his use of Secure Erase to be worthy of belief.” Also, noting that Curtin “failed to disclose the existence of the Toshiba drive in response to HMS’s interrogatories” and “acknowledged the existence of the drive only after being confronted with HMS’s forensic proof of the same”, the Court ruled that it “does not find his explanation for failing to produce the Toshiba external drive to be credible.”

As for files deleted from Lange’s hard drive, the Court found “that Lange was under a duty of preservation at all pertinent times with respect to the alleged spoliation of ESI” from the laptop and found it to be “intentional and willful”. And, with regard to the iPhone, the Court concluded “that Lange knowingly gave false testimony regarding the destruction and disposition of her iPhone 4” when she testified that she disposed of her old iPhone on August 8, 2014, but actually backed it up on August 15, 2014.

As a result, the Court ruled:

“Given the willful and deliberate nature of defendants’ misconduct, imposition of a mandatory presumption is warranted. The trier of fact should be permitted to draw the strongest possible adverse inference from defendants’ bad faith and intentional destruction, deletion and failure to produce relevant evidence Thus, the trier of fact should be instructed as a matter of law that defendants engaged in the intentional and willful destruction of evidence, advised of the extent of each defendant’s proven spoliation, and permitted to presume that the evidence spoliated by each defendant was relevant to this action, would have supported HMS’s claims against the defendant and been unfavorable to the defendant.”

The court also awarded attorney fees, and forwarded a copy of the order regarding Defendant Lange to the New York State Committee on Professional Standards for attorneys.

So, what do you think? Was that the right amount to award? Or should the judge have awarded a lesser amount? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court’s “Jazzy” Decision to Award Costs May “Bug” Plaintiff, But Defendant Doesn’t Mind a “Bit”: eDiscovery Case Law

Hey, I could have said if it doesn’t “fit”, you must acquit…

In Fitbug Ltd. v. Fitbit, Inc., Case No. 13-1418 SC (N.D. Cal. May 13, 2015), California District Judge Samuel Conti, throwing in a jazz reference during his opinion, ruled to tax over $63,000 in costs to be paid to the prevailing defendant in the case.

Case Background

In this trademark infringement case between two companies that manufacture and sell portable electronic fitness tracking devices, the Court granted summary judgment in favor of the defendant. Pursuant to that judgment, the defendant submitted a bill of costs, seeking $88,888.86 in costs (apparently, they like the number “8”). The plaintiff objected, and the Clerk ultimately taxed costs of $54,089.15.

Despite the Clerk of the Court’s substantial reductions to the defendant’s costs, the plaintiff believed that the amount taxed still included non-taxable items. As a result, the plaintiff filed a motion for review of costs allowed by the Clerk to ask the Court to either reject the defendant’s claimed costs entirely or, at a minimum, reduce them by a further $27,468.58. In turn, the defendant opposed any further reductions in its costs.

Judge’s Ruling

With regard to the plaintiff’s argument that because the defendant’s declaration supporting its bill of costs did not specifically state that its claimed costs are “allowable by law” (as required by Civil Local Rule 54-1(a)), Judge Conti began his analysis by getting the semantics out of the way (and providing a handy jazz reference to boot):

“While Fitbug apparently believes ‘[n]o other words can tell it half so clearly,’ the requirement a party say the ‘three little words,’ ‘allowable by law,’ is merely a reminder that the Court expects them to submit costs they believe are taxable, not a set of magic words necessary to receive any costs. Cf. Sarah Vaughan, Three Little Words, on Live at the London House (Mercury Records 1958), available at: https://www.youtube.com/watch?v=9WSZ6IRC-ys.” (yes, he even provided a YouTube link) “As the language of Fitbit’s declaration makes clear, Fitbit submitted these costs in good faith and understood that doing so was a representation to the Court and the Clerk that the costs were “allowed by law.” Now the Court must decide whether Fitbit was right or not. The Court declines to elevate form over substance to avoid making that decision.”

As for the specifics of the eDiscovery costs, Judge Conti acknowledged that “Section 1920 was enacted in 1853 and as a result does not speak directly on the taxability of electronic discovery costs”, but noted that in this “vacuum”, “courts have analogized the language of Section 1920(4), which authorizes the taxation of ‘[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case . . .,’ to a variety of electronic discovery expenses.” As a result, Judge Conti denied the plaintiff’s motion for review on these costs, deciding to tax $32,282.05 in data extraction and processing costs and another $4,466.91 in costs for production deliveries. Taken together with costs for deposition and video transcripts, photocopying and scanning and preparation of demonstrative exhibits, Judge Conti determined the total costs to be taxed to be $63,660.94.

So, what do you think? Was that the right amount to award? Or should the judge have awarded a lesser amount? Please share any comments you might have or if you’d like to know more about a particular topic.

BTW, a link to the terrific Sarah Vaughan song referenced in the judge’s opinion can be found here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Resolves Dispute Over Scope of Databases and Searches to be Performed: eDiscovery Case Law

After a week of reviewing previous cases we’ve covered this year with a couple of pop quizzes, we’re back in the saddle covering new cases…

In Willett, et al. v. Redflex Traffic Systems, Inc., No. 1:13-cv-1241-JCH/LAM (D.N.M. May 8, 2015), New Mexico District Judge Lourdes A. Martinez ordered the defendants to produce a spreadsheet referred of file folders, with information for the files on their virtual server(s), the plaintiffs to provide the defendant with a reasonable list of search terms, limited to the relevant time frame, parties, and issues of this case and for the defendants to perform the searches specified by the plaintiffs within ten days of receiving the searches.

Case Background

In this class action case, the plaintiffs alleged that the defendants engaged in nonconsensual automated calls to the plaintiffs on their cellular telephones in violation of the Telephone Consumer Protection Act in order to collect fines imposed by the City of Albuquerque for traffic violations and submitted requests for admission (RFAs) to the defendants to ask them to admit that they obtained the telephone numbers for specific plaintiffs from a skip tracing service. As for the plaintiffs’ document requests, the defendants produced an initial set of 19,000 Bates-labeled pages of documents in response to those requests, but the plaintiffs argued that the production was inadequate and moved to compel a larger production. In turn, the defendants filed their own motion, opposing the plaintiffs’ motion, arguing that the plaintiffs had refused to engage in a search term discussion regarding its database, which contained 1.6 terabytes of data.

The defendants also noted that the cost of processing their entire virtual server to enable more targeted searches would cost between $100,000 and $160,000, but if the parties were to agree to limit the data to be processed, such as by file type, keywords, and creation dates, the defendants might be able to perform those searches at a reasonable cost; otherwise, the cost could be shifted to the plaintiffs or split between the parties.

Judge’s Ruling

With regard to the defendants’ objections to the plaintiffs’ requests for admission, Judge Martinez found that “Defendants’ objections are without merit and should be overruled” and stated that “Defendants’ use of boilerplate, blanket objections are improper” and that the defendants’ “objections that these RFAs do not relate to the parties in this case are especially baffling since the requests specifically name the three Plaintiffs”.

As for the document requests, Judge Martinez ruled that she would “not order CWGP and Credit Control to conduct a search of the entire virtual server because it does not appear that that conducting a search of the entire 1.6 terabytes of data in the virtual server at a cost of $100,000 to $160,000 would be proportional to the likely benefit of such a search”. She also found that “limiting the search of the virtual server by file type, keywords, and creation dates, is a reasonable solution”. As a result, Judge Martinez ordered the defendants to produce a spreadsheet referred of file folders, with information for the files on their virtual server(s), the plaintiffs to provide the defendant with a reasonable list of search terms, limited to the relevant time frame, parties, and issues of this case and for the defendants to perform the searches specified by the plaintiffs within ten days of receiving the searches.

So, what do you think? Was the judge’s decision a reasonable compromise regarding the parties’ search disputes? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Vacation Case Law Pop Quiz #2 Answers!: eDiscovery Case Law

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed.

Yesterday, we gave you a pop quiz for the second set of cases. If you’re reading the blog each day, these questions should be easy! Let’s see how you did. Here are the answers.

1. Which case did the judge refer to as “Da Silva Moore Revisited”?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

2. In which case did the court grant the plaintiff’s Motion to Quash the defendant’s subpoena of text messages?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

3. In which case did the court uphold the award by the Clerk of the Court of over $57,000 in taxable costs?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

4. Which case(s) cited the Da Silva Moore case?

A. Rio Tinto Plc v. Vale S.A.

B. In Re: Lithium Ion Batteries Antitrust Litigation

C. Both cited Da Silva Moore

D. Neither cited Da Silva Moore

5. In which case was the request for spoliation sanctions against the defendant for failure to preserve video footage not only denied, but the defendant was granted summary judgment in the case?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

6. In which case did the appeals court affirm the District Court’s approval of a $6,300+ bill of costs which included synchronization of deposition videos and imaging of hard drives?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

7. In which case did the court rule that the duty to preserve for the Australian defendant did not begin until the complaint was filed in US courts?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

8. In which case was the defendant sanctioned for discarding a relevant computer?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

9. In which case did the court rule that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

10. In which case was the defendant sanctioned and ordered to reimburse the plaintiff $12,800 for the cost of conducting a forensic computer examination?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Vacation Case Law Pop Quiz #2!: eDiscovery Case Law

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed.

If you’re reading the blog each day, these questions should be easy! If not, we’ve provided a link to the post with the answer. We’re that nice. Test your knowledge! Tomorrow, we’ll post the answers to this second vacation case law pop quiz for those who don’t know and didn’t look them up.

1. Which case did the judge refer to as “Da Silva Moore Revisited”?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

2. In which case did the court grant the plaintiff’s Motion to Quash the defendant’s subpoena of text messages?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

3. In which case did the court uphold the award by the Clerk of the Court of over $57,000 in taxable costs?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

4. Which case(s) cited the Da Silva Moore case?

A. Rio Tinto Plc v. Vale S.A.

B. In Re: Lithium Ion Batteries Antitrust Litigation

C. Both cited Da Silva Moore

D. Neither cited Da Silva Moore

5. In which case was the request for spoliation sanctions against the defendant for failure to preserve video footage not only denied, but the defendant was granted summary judgment in the case?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

6. In which case did the appeals court affirm the District Court’s approval of a $6,300+ bill of costs which included synchronization of deposition videos and imaging of hard drives?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

7. In which case did the court rule that the duty to preserve for the Australian defendant did not begin until the complaint was filed in US courts?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

8. In which case was the defendant sanctioned for discarding a relevant computer?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

9. In which case did the court rule that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

10. In which case was the defendant sanctioned and ordered to reimburse the plaintiff $12,800 for the cost of conducting a forensic computer examination?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Vacation Case Law Pop Quiz #1 Answers!: eDiscovery Case Law

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed.

Yesterday, we gave you a pop quiz for the first set of cases. If you’re reading the blog each day, these questions should be easy! Let’s see how you did. Here are the answers.

1. In which case did the judge state that the defendant’s “discovery misconduct calls for serious measures”?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

2. In which case did the court order the defendant to submit a further declaration supporting its claimed eDiscovery costs?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

3. In which case was a request for sanctions denied by the court?

A. James v. National Financial LLC

B. Ablan v. Bank of America

C. Federico et al. v. Lincoln Military Housing LLC, et al.

D. Requests for sanctions were granted in all of the above cases

4. In which case did the court decline to sanction a party for failing to produce or make available documents held by the plaintiff’s outside vendor?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

5. Which case involved allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

6. In which case did the judge issue an order titled “Order on One Millionth Discovery Dispute”?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

7. In which case did the court award attorney fees requested by the defendant to compensate for filing a motion to compel the plaintiff to produce documents?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

8. In which case was the plaintiff’s motion to compel the defendants to produce ESI again in native format denied by the court?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

9. In which case did the judge state that “the majority of the search terms suggested by Plaintiff are too generic and are likely to produce a large number of documents that are irrelevant to this case”?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

10. In which case did the appeals court reverse an award for attorney fees due to ESI requests that the lower court deemed as “clearly frivolous”?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.