eDiscovery Daily Blog

2013 eDiscovery Year in Review: eDiscovery Case Law, Part 1

It’s time for our annual review of eDiscovery case law!  We had more than our share of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI), eDiscovery cost reimbursement, production formats and search parameters, among other things.  So, as we did last year and also the year before, let’s take a look back at 2013!

Last year, eDiscoveryDaily published 78 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!


Admissibility of ESI, and the duty to preserve and produce it, is more at issue than ever.  As always, there are numerous disputes about data being produced and not being produced.  Here are ten cases related to admissibility and the duty to preserve and produce ESI:

Court Rules Defendant Doesn’t Have Controls of PCs of Former Members, Denies Plaintiff’s Motion to CompelTo require a party to produce evidence in discovery, the party must have “possession, custody, or control” of the evidence. In Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas v. Nemaha Brown Watershed Joint District No. 7, the defendant did not have control over the personal computers of its former members, employees, or staff; it did not have the legal right to obtain information from them “on demand.” Therefore, the court rejected the plaintiff’s motion to compel and refused to order the forensic examination of the personal computers of current or former members, employees, or staff.

Court Rejects Defendant’s “Ultra-Broad” Request, Denies Motion to Compel ProductionIn NOLA Spice Designs, LLC v. Haydel Enters., Inc., Louisiana Magistrate Judge Joseph C. Wilkinson, Jr. denied a motion to compel a plaintiff and its principal (a third-party defendant) to produce their passwords and usernames for all websites with potentially relevant information and to compel a forensic examination of its computers.

Plaintiff Needs More Than “Mere Hope” to Discover Defendant’s Personal InfoIn Salvato v. Miley, a wrongful death action, Florida Magistrate Judge Philip R. Lammens denied the plaintiff’s motion to compel the defendant’s responses to discovery requests “based on Plaintiff’s very limited showing as to the relevance of the requested discovery and the broadly drafted discovery requests”.

Court Compels Discovery of Plaintiff’s Facebook Posts as RelevantIn Moore v. Miller, Colorado Senior District Judge John L. Kane ruled (over the plaintiff’s privacy objections) that the plaintiff’s Facebook posts and activity log must be produced because they related to his claims of physical injury and emotional distress and because the plaintiff put his posts directly at issue by discussing the incident giving rise to the lawsuit online.

Court Rules that Stored Communications Act Applies to Former Employee EmailsIn Lazette v. Kulmatycki, the Stored Communications Act (SCA) applied when a supervisor reviewed his former employee’s Gmails through her company-issued smartphone; it covered emails the former employee had not yet opened, but not emails she had read but not yet deleted.

Google Compelled to Produce Search Terms in Apple v. SamsungIn Apple v. Samsung, California Magistrate Judge Paul S. Grewal granted Apple’s motion to compel third party Google to produce the search terms and custodians used to respond to discovery requests and ordered the parties to “meet and confer in person to discuss the lists and to attempt to resolve any remaining disputes regarding Google’s production.”

Plaintiff Granted Access to Defendant’s DatabaseIn Advanced Tactical Ordnance Systems, LLC v. Real Action Paintball, Inc., Indiana Magistrate Judge Roger B. Cosbey took the unusual step of allowing the plaintiff direct access to a defendant company’s database under Federal Rule of Civil Procedure 34 because the plaintiff made a specific showing that the information in the database was highly relevant to the plaintiff’s claims, the benefit of producing it substantially outweighed the burden of producing it, and there was no prejudice to the defendant.

Yet Another Request for Facebook Data DeniedIn Potts v. Dollar Tree Stores, Inc., Tennessee District Judge William Haynes ruled that the defendant “lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence” and, therefore, denied the defendant’s motion to compel regarding same.

Stored Communications Act Limits Production of Google EmailsIn Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., California Magistrate Judge Paul S. Grewal granted much of the defendant’s motion to quash subpoena of Google for electronic communications sent or received by certain Gmail accounts allegedly used by employees of the defendant because most of the request violated the terms of the Stored Communications Act.

Another Social Media Request Denied as a “Carte Blanche” RequestIn Keller v. National Farmers Union Property & Casualty Co., the defendants filed a motion to compel the plaintiff’s to respond to various discovery requests. While Magistrate Judge Jeremiah Lynch granted their request to compel the plaintiffs to produce medical records, he denied the defendant’s request “to delve carte blanche into the nonpublic sections of Plaintiffs’ social networking accounts”.


As usual, eDiscovery cost reimbursement was a “mixed bag” as the cases where the prevailing party was awarded reimbursement of eDiscovery costs and the cases where requests for reimbursement of eDiscovery costs was denied (or only partially granted) was about even.  Here are six cases, including one where the losing plaintiff was ordered to pay $2.8 million for predictive coding of one million documents(!):

Cost-Shifting Inappropriate when Data is Kept in an Accessible FormatIn Novick v. AXA Network, New York Magistrate Judge Kevin Nathaniel Fox ruled that cost-shifting was inappropriate where data was kept in an accessible format.

Apple Wins Case, But Loses its Bid to Have Most of its Costs CoveredIn Ancora Technologies, Inc. v. Apple, Inc., California District Judge Yvonne Gonzalez Rogers granted in part and denied in part Ancora’s Motion for Review of Clerks’ Order on the Bill of Costs of prevailing party Apple, reducing the awarded amount from $111,158.23 down to $20,875.48, including disallowing over $71,000 in storage and hosting costs.

Another Case where Reimbursement of eDiscovery Costs are DeniedIn The Country Vintner of North Carolina, LLC v. E. & J. Gallo Winery, Inc., when deciding which costs are taxable, the Fourth Circuit chose to follow the Third Circuit’s reasoning in Race Tires America, Inc. v. Hoosier Racing Tire Corp., which read 28 U.S.C. § 1920(4) narrowly. Specifically, the court approved taxation of file conversion and transferring files onto CDs as “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case” but no other tasks related to electronically stored information (ESI).

In False Claims Act Case, Reimbursement of eDiscovery Costs Awarded to PlaintiffIn United States ex rel. Becker v. Tools & Metals, Inc., a qui tam False Claims Act litigation, the plaintiffs sought, and the court awarded, costs for, among other things, uploading ESI, creating a Relativity index, and processing data over the objection that expenses should be limited to “reasonable out-of-pocket expenses which are part of the costs normally charged to a fee-paying client.” The court also approved electronic hosting costs, rejecting a defendant’s claim that “reasonableness is determined based on the number of documents used in the litigation.” However, the court refused to award costs for project management and for extracting data from hard drives where the plaintiff could have used better means to conduct a “targeted extraction of information.”

Court Says Scanning Documents to TIFF and Loading into Database is TaxableIn Amana Society, Inc. v. Excel Engineering, Inc., Iowa District Judge Linda R. Reade found that “scanning [to TIFF format] for Summation purposes qualifies as ‘making copies of materials’ and that these costs are recoverable”.

Must Losing Plaintiff Pay Defendant $2.8 Million for Predictive Coding of One Million Documents? Court Says YesIn Gabriel Technologies Corp. v. Qualcomm Inc., District Judge Anthony J. Battaglia awarded the defendant over $12.4 million in attorneys’ fees to be paid by the losing plaintiff in the case. The amount included over $2.8 million for “computer-assisted, algorithm-driven document review” and nearly $392,000 for contract attorneys to review documents identified by the algorithm as responsive.

We’re just getting started!  Tomorrow, we will cover cases related to production format disputes, search disputes 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.