eDiscovery Daily Blog

• January 15, 2013

2012 was quite a year from an eDiscovery standpoint, with a number of cases that impacted how organizations handle discovery.  There were case decisions that broke new ground (such as technology assisted review) and other cases that showed that many organizations still have a lot to learn in terms of inadvertent disclosures of privileged documents and sanctions assessed due to spoliation.

As we did last year, it seems appropriate to review cases from 2012 before moving forward to this year.  eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot).  Perhaps you missed some of these?  Now is your chance to catch up!

PROPORTIONALITY / COOPERATION

There were certainly at least a handful of cases where proportionality of eDiscovery and cooperation between parties was at issue.  Here are three such cases:

Plaintiffs Should Pay for Extensive Discovery Prior to Class Certification.  In Boeynaems v. LA Fitness International, LLC, Pennsylvania District Judge Michael Baylson held that “where (1) class certification is pending and (2) the plaintiffs have asked for very extensive discovery, compliance with which will be very extensive, that absent compelling equitable circumstances to the contrary, the plaintiffs should pay for the discovery they seek . . . . Where the burden of discovery expense is almost entirely on the defendant, principally because the plaintiffs seek class certification, then the plaintiffs should share the costs.”

There’s a New Sheriff in Town – Judge Facciola.  In Taydon v. Greyhound Lines, Inc., District of Columbia Magistrate Judge John Facciola laid down the law to the parties in the case requiring cooperation on eDiscovery issues after “[t]he filing of forty-page discovery motions accompanied by thousands of pages of exhibits” and made it clear that the parties would be expected to “meet and confer in person in a genuine, good faith effort to plan the rest of discovery”.

Tennessee Court Orders Split eDiscovery Costs, Plaintiff Bond for Additional Discovery.  In considering the allocation of costs in this contentious business dispute, Tennessee Magistrate Judge Joe B. Brown (not to be confused with TV’s Judge Joe Brown) ordered the parties to split the expenses related to material they had not already produced in Lubber Inc. v. Optari, LLC.

PRIVILEGE / INADVERTENT DISCLOSURES

There were a few cases related to privilege issues, with parties failing the five factor test and paying the price for inadvertent disclosures of privileged documents (even when disclosing two privileged pages out of two million pages produced!).  Here are five cases where disclosure of privileged documents was addressed:

Another Disclosure of Privileged Documents Fails the Five Factor Test.  In Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Ohio Magistrate Judge Norah McCann King found that the defendant had waived the attorney-client privilege was waived for 347 emails inadvertently produced, because they failed all factors in the five factor test to determine whether the inadvertent disclosure entitles the producing party to the return of the documents in question.

Counsel, The Inadvertent Disclosure “Buck” Stops With You.  In Blythe v. Bell, North Carolina Business Superior Court Judge James L. Gale denied a motion for an order compelling the return of privileged documents inadvertently disclosed by the defendants, ruling that privilege had been waived on those documents.

Privilege Waived Because Defendants Failed to Notice “Something Had Gone Awry” with Their Production.  In D’Onofrio v. Borough of Seaside Park, New Jersey Magistrate Judge Tonianne Bongiovanni denied the defendants’ motion for discovery to reclaim privileged documents that were inadvertently produced, finding that privilege was waived because the defendants failed to take reasonable measures to rectify the disclosure.

Inadvertent Disclosure By Expert Waives Privilege.  In Ceglia v. Zuckerberg (the case where Paul Ceglia is suing claiming 84% ownership of Facebook due to an alleged agreement he had with Mark Zuckerberg back in 2003), New York Magistrate Judge Leslie G. Foschio ruled that an information technology expert’s inadvertent disclosure waived the attorney-client privilege where the plaintiff could not show that it (1) took reasonable steps to prevent the disclosure of the e-mail and (2) took reasonable steps to rectify the error once it discovered the disclosure.

Two Pages Inadvertently Disclosed Out of Two Million May Still Waive Privilege.  In Jacob v. Duane Reade, Inc., Magistrate Judge Theodore Katz of the US District Court for the Southern District of New York found that a privileged, two-page email that was inadvertently produced did not have to be returned and that the privilege had been waived because the producing party, Duane Reade, had failed to request its return in a timely manner. According to Defendants’ counsel, the ESI production involved the review of over two million documents in less than a month; that review was accomplished with the assistance of an outside vendor and document review team.

EDISCOVERY COST REIMBURSEMENT

In 2011, there were several cases where the prevailing party was awarded reimbursement of eDiscovery costs.  Last year, that trend reversed somewhat as there were some cases where requests for reimbursement of eDiscovery costs was denied (or only partially granted).  Here are five cases, some of which fall into each category:

Court Reduces, But Allows, Reimbursement of eDiscovery Costs.  In Moore v. The Weinstein Company LLC, noting it had wide discretion to determine costs recoverable by a prevailing party under federal statutes providing for the taxation of costs, a court reduced costs awarded for eDiscovery expenditures based on its analysis of which costs were reasonable, necessary, and taxable.

Trend Has Shifted Against Reimbursement of eDiscovery Costs.  Last year, the trend seemed to be to award the prevailing party reimbursement of eDiscovery costs. Now, that trend appears to have been reversed with those requests being denied (or reversed) by the courts. Now, here is another case where reimbursement of eDiscovery costs was denied.

Google Awarded $1 Million from Oracle, But Denied Discovery Costs.  Judge William Alsup ordered Oracle to pay Google $1 million as reimbursement for Google’s fees for a court-appointed expert in their court battle over intellectual property and Google’s Android software. However, the ruling is only a partial victory for Google, who was seeking $4 million from Oracle in reimbursement of costs associated with the case.

No Race Tires on This Vehicle, Taxation of eDiscovery Costs Granted.  Last May, in Race Tires America, Inc. v. Hoosier Racing Tire Corporation, the winning defendants were awarded $367,000 as reimbursement for eDiscovery costs. (Hoosier Daddy!) But, then in March, an appellate court reversed all but $30,370 of those costs, implementing a narrow interpretation of 28 U.S.C. § 1920(4) for assigning those costs. Now, a new case addresses the issue of taxation of costs once again.

Not So Fast On eDiscovery Cost Reimbursement.  Today, we look at another eDiscovery ruling where a significant reduction in award amount was ruled.

We’re just getting started!  Tomorrow, we will cover cases related to social media and technology assisted review.  Stay tuned!

So, what do you think?  Did you miss any of these?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.