eDiscovery Daily Blog
2014 eDiscovery Case Law Year in Review, Part 2
As we noted yesterday, eDiscoveryDaily published 93 posts related to eDiscovery case decisions and activities over the past year, covering 68 unique cases! Yesterday, we looked back at cases related to admissibility and proportionality as well as cases involving discovery on discovery. Today, let’s take a look back at cases related to eDiscovery cost sharing and reimbursement, fee disputes and production format disputes.
We grouped those cases into common subject themes and will review them over the next few posts. Perhaps you missed some of these? Now is your chance to catch up!
EDISCOVERY COST SHARING AND REIMBURSEMENT
As usual, eDiscovery cost reimbursement was a “mixed bag” as there were cases where the prevailing party was awarded reimbursement of eDiscovery costs and cases where requests for reimbursement of eDiscovery costs were denied. In some cases, parties were instructed to share costs related to eDiscovery, so those are covered here too.
Federal Circuit Reduces Award for Defendants Based on Costs of Digital Copies: In Phillip M. Adams & Associates, L.L.C. v. Sony Electronics Inc., a Federal Circuit court limited awards for the defendant with regard to the costs of digital copies, in a decision that followed the reasoning of the Third Circuit and Fourth Circuit in prior cases.
Federal Court Partially Reverses District Court’s Taxation of Electronic Discovery Costs: In CBT Flint Partners, LLC v. Return Path, Inc., the Federal Circuit Court of Appeals reversed in part and vacated in part an earlier decision by the Georgia district court to require the plaintiffs to pay the defendants’ costs relating to the production and duplication of electronically stored information (ESI) offered as eDiscovery, limiting taxation to only those costs which were directly related to copying.
Plaintiff’s Failure to Communicate with Defendants Causes Complications in Discovery: In Procaps S.A. v. Patheon Inc., the defendants filed a Motion to Compel over search terms for Electronically Stored Information (ESI), after the lead counsel for the plaintiffs repeatedly demonstrated uncooperative behavior by not responding to emails sent by defendants’ counsel, or responding with brief and unclear messages.
Another Case Where Some eDiscovery Costs are Disallowed: In Kwan Software Engineering v. Foray Technologies, the amount of the defendant’s previously awarded costs were significantly reduced following the partial granting of the plaintiff’s Motion for Review of Clerk’s Taxation of Costs, after California District Judge Susan Illston ruled that the majority of the costs requested were not recoverable.
Court Orders Sharing of Costs for Forensic Examination of Plaintiff’s Emails: In Zeller v. So. Central Emergency Med. Servs. Inc., Pennsylvania Magistrate Judge Karoline Mehalchick used the Zubulake seven factor test to rule that the costs for restoring and searching the plaintiff’s emails should be shared, up to a maximum contribution by $1,500 by the plaintiff.
Court Allows Costs for TIFF Conversion and OCR, Likens it to “Making Copies”: In Kuznyetsov v. West Penn Allegheny Health Sys., Pennsylvania Senior District Judge Donetta W. Ambrose upheld the Clerk of Courts issuance of Taxation of Costs for $60,890.97 in favor of the defendants and against the named the plaintiffs, including costs for “scanning and conversion of native files to the agreed-upon format for production of ESI”.
Are providers of services related to eDiscovery abusing the system? Here are three cases where that may be the case, one where the eDiscovery provider had over $700,000 slashed from their bill and two others involving disputes regarding fees for legal services, including one where the law firm admitted to failing to review documents in their case. Oh, and attempting to deny coverage to a client successfully sued for discovery-related negligence cost one insurance company a $34 million judgment. Ouch!
Plaintiff’s Attorney’s Fee Request Slashed because they “Transformed what should Have Been a Simple Case into a Discovery Nightmare”: In Fair Housing Center of Southwest Michigan v. Hunt, Michigan Magistrate Judge Joseph G. Scoville ruled that the plaintiffs were prevailing parties in its settlement agreement with the defendants and were entitled to an award of attorney’s fees, but slashed the plaintiff’s fee request, “both because the hours devoted to this case were excessive and because the fee request makes no effort to account for the limited success that plaintiffs achieved in this case”.
Battle Continues between Attorneys and Client over Attorneys’ Failure to Review Documents: In Price Waicukauski & Riley v. Murray, Indiana District Judge William T. Lawrence granted the plaintiff’s request for summary judgment for failure to pay attorney’s fees of over $125,000, and refused to issue summary judgment for either party related to a legal malpractice claim for the plaintiff’s admitted failure to review documents produced in the defendants’ case against another party because of a factual dispute regarding the plaintiff’s knowledge of the documents produced.
Court Slashes Vendor Bill Filled with Double Billing and Data Recovery Charges: In Lanterman and Computer Forensic Services v. Afremov, Minnesota District Judge Philip D. Bush slashed over $700,000 from the plaintiff’s disputed invoices for eDiscovery work performed on behalf of the defendant, leaving an award of just over $103,000 for services rendered.
Judgment of $34 Million against Insurer Dodging Malpractice Claim is a “Dish” Served Cold: In my hometown of Houston, attempting to deny coverage to a client successfully sued for discovery-related negligence cost OneBeacon Insurance Company a $34 million judgment by a federal jury.
PRODUCTION FORMAT DISPUTES
Disputes regarding the form of production continue to be on the rise – in most cases, Rule 34 doesn’t seem to be stemming the tide. Here are the nine cases involving production format disputes:
Discovery of Privileged Documents and Form of Production Addressed in Ruling on Second Motion to Compel: In RPM Pizza LLC v. Argonaut Great Central Insurance Co., Louisiana Magistrate Judge Stephen C. Riedlinger delivered a partial ruling on a Second Motion to Compel the Production of Documents and Interrogatory Responses filed by the plaintiffs, who filed the motion in effect to renew their previous motion to compel, to which the defendant did not respond in a timely manner. Largely due to the delayed response, Judge Reidlinger ruled in favor of the plaintiff on several aspects of the motion.
Dispute over Production Format and Search Terms for Electronic Discovery Highlights the Need for Cooperation: In Saliga v. Chemtura Corp., a discrimination case heard by Connecticut Magistrate Judge Donna F. Martinez, the plaintiff and the defendants had spent a year arguing over the format of production for Electronically Stored Information (ESI) to be used in discovery, as well as relevant search terms, before the plaintiff filed a motion to compel.
Plaintiffs Triumph in Second Motion to Enforce Court Ordered Production of Email Attachments: In Skepnek v. Roper & Twardowsky, LLC, Kansas Magistrate Judge James P. O’Hara ruled on a second motion filed by the plaintiffs to enforce a discovery order that was not followed completely by the defendants – specifically, the plaintiffs sought to compel the production of email attachments that were not produced along with the emails themselves.
Court Finds Rule for Arranging and Labeling Documents Does Not Apply to ESI: In Anderson Living Trust v. WPX Energy Prod., New Mexico District Judge James O. Browning granted the defendants’ Motion to Reconsider an earlier discovery ruling that would have required the defendants to arrange and label the discovery documents they had already produced, on the grounds that under Rule 34, this production was not considered electronically stored information.
Contentious Discovery Dispute Process Leads to Ruling on “Reasonably Usable Format” for ESI: In Castillon v. Corrections Corporation of America, Inc., Idaho District Judge Edward J. Lodge found a discovery dispute over the form of production of electronically stored information (ESI) in favor of the defendants, who had already produced the requested data in what was ruled a “reasonably usable format.”
Defendant Failure to Produce in Agreed Upon Format Leads to Dispute with Plaintiffs: In EEOC v. SVT, LLC, discovery disputes arose when the plaintiffs and defendants agreed upon the file format the requested Electronically Stored Information (ESI) for discovery was to be produced in, but the defendants’ production was not in the file formats specified.
Court Rules that Joint Stipulation Supports Plaintiff’s Production of Images Instead of Native Files: In Melian Labs, Inc. v. Triology LLC, California Magistrate Judge Kandis A. Westmore denied the plaintiff’s motion to compel discovery in native form because the production format had been agreed upon under the parties’ ESI protocol under the Joint Rule 26(f) Report filed by the parties that supported production in “paper, PDF, or TIFF format”.
Court Agrees with Defendants that Producing Medical Records in Native Form is an “Undue Burden”: In Peterson v. Matlock, New Jersey Magistrate Judge Douglas E. Arpert denied the plaintiffs motion to compel defendants to produce the plaintiff’s electronically stored medical records in “native readable format” after the defendants produced the records in PDF format, agreeing that the defendants had demonstrated that they would suffer an undue burden in complying with the plaintiff’s request.
Plaintiff Ordered to Make its Production Conform to Rule 34: In Venture Corp. Ltd. v. Barrett, California Magistrate Judge Paul S. Grewal ordered the plaintiffs to “(1) either organize and label each document it has produced or it shall provide custodial and other organizational information along the lines outlined above and (2) produce load files for its production containing searchable text and metadata” in order to conform to Rule 34 of the Federal Rules of Procedure and meet their obligation.
Tomorrow, we will cover cases related to privilege and inadvertent disclosures, requests for social media, cases involving technology assisted review and the case of the year – the ubiquitous Apple v. Samsung dispute. 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.
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