Electronic Discovery Update Resource Center

As a service to Jenner & Block's clients and the greater legal community, the Firm's Complex Commercial Litigation practice maintains this online resource center that offers the latest case law and other developments in electronic discovery.

Jenner & Block will update this web page with new developments and items of interest as they become available. 
For further information, please contact Partner Daniel J. Weiss.

Court Finds Preservation Burdensome Post-judgment; Permits Disposal Of Computers.

In Lord Abbett Municipal Income Fund, Inc. v. Asami, No. C-12-03694 (N.D. Cal. Oct. 29, 2014), the parties were sharing the cost of preserving 159 computers that potentially contained relevant data.  After certain defendants were granted summary judgment, they refused to continue to pay their share of the cost to maintain the computers, but refused to consent to the plaintiff’s disposal of the computers because, they contended, the computers might be needed if the summary judgment was reversed on appeal.  The court first held that it had jurisdiction to consider the issue notwithstanding that a notice of appeal had been filed because, the court held, the discovery matter was only “collateral” to the judgment.  The court then considered whether the plaintiff would be required to preserve the computers under Rule 26(b)(2)’s “proportionality principle.”  The court found that the burden of maintaining the computers outweighed any potential benefit the computers might provide because discovery in the case had long been closed, there was no indication the computers contained relevant information, and the plaintiff offered the defendants an opportunity to examine the computers but the defendants had declined to do so.

Sanctions Ordered As Document Collection Procedure No Substitute For Litigation Hold.

In Fidelity National Title Insurance Co. v. Captiva Lake Investments, LLC, No. 10-cv-1890 (E.D. Mo. Jan. 7, 2015), the defendant moved for sanctions after a court-appointed e-discovery specialist found that the plaintiff failed to institute a litigation hold.  The plaintiff argued that a litigation hold was unnecessary because it had implemented a “document collection procedure” by which it retained hard copy and electronic documents related to the each claim.  The court found that the procedure did not satisfy the plaintiff’s obligation under the Federal Rules because it did not preserve all relevant evidence, including emails that were older than 180 days.  The court held that a party’s “failure to implement a litigation hold establishes the necessary intent to support the imposition of sanctions.”  The court further held that the defendant established prejudice because the plaintiff was unable to ascertain the volume or contents of the deleted email.  The court held that a permissive adverse inference instruction regarding the missing emails was warranted.  The court further noted that, in the Eighth Circuit, a permissive spoliation instruction is permitted without a finding of “bad faith” intent.

Plaintiff To Advance Half Of Defendant’s Costs To Produce Back-Up Tapes With Final Allocation To Be Determined Post-Production.

In SCR-Tech LLC v. Evonik Energy Services LLC, No. 08 CVS 16632 (N.C. Super. Ct. Dec. 31, 2014), the defendants argued that the plaintiff should bear half of the estimated $140,545 cost of producing backup tapes.  The court applied the state law equivalent of Fed. R. Civ. P. 26, which tracks the federal rule.  After noting that cost shifting should only be considered when electronic discovery imposes an undue burden on the responding party, the court articulated three factors to determine whether cost shifting is appropriate:  (a) whether the discovery sought is cumulative or duplicative; (b) whether the seeking party has had an opportunity to obtain the information by other means; and (c) whether the cost is unduly expensive, considering the amount in controversy, the limitations on the parties’ resources, and the importance of the issues at stake in the litigation.  The court found that it would be in a better position to evaluate those factors after defendants’ production.  Accordingly, the court held that the plaintiff would be required to advance half of the estimated cost if it wanted the defendants to produce the tapes, but the court would determine the final cost allocation “upon presentation as to the utility of the search measured by the degree of non-duplicative potentially relevant information produced.”

Court Adopts Protocol Limiting E-Discovery Burden.

In Design Basics, LLC v. Carhart Lumber Co., No. 13-cv-125 (D. Neb. Nov. 24, 2014), the court adopted portions of an e-discovery protocol previously developed by Judge Grimm of the U.S. District Court for the District of Maryland.  The protocol is “intended to implement the balancing process required in ESI cases under the federal rules.”  The court adopted Judge Grimm’s e-discovery limitation of ten “key custodians” per side, a “relevant period” of no more than five years preceding the lawsuit, and an overall cap of 160 hours of time spent on reviewing documents.  In adopting the protocol, the court rejected the plaintiff’s position that the defendant should be required to search “every computer or data storage location owned or used by the defendant,” which the court held was “not consistent with the balancing required under Rule 26(b)(2)(C).”

Court Imposes Own E-Discovery Search Terms Sua Sponte.

In Armstrong Pump, Inc. v. Hartman, No. 10-cv-446 (W.D.N.Y. Dec. 9, 2014), the court considered discovery disputes in a case that was more than four years old and for which “discovery [was] far from complete.”  The court faulted the parties for “piecemeal discovery and excessive delay.”  In response, the court announced that it would “fashion a new and simpler approach to discovery,” which consisted of 13 key-word terms that the plaintiff would be required to search for on “all corporate documents, files, communications and recordings.”  The plaintiff would be required to “maintain a list of every server, computer, file room, or other place searched, and a list of all positive search results.”  “When the search is complete, a representative of [plaintiff] and all of [plaintiff’s] counsel of record will file a sworn statement confirming that [plaintiff] made a good faith effort to identify sources of documents; that a complete search of those sources for each of the above phrases occurred; and that the search results have been furnished to [defendant].”  The court required that the plaintiff complete this search within four months “with absolutely no exceptions or extensions.”

Showing Burden Trumps Demand For Production Of Native Format Documents.

In Peterson v. Matlock, No. 11-2594 (D.N.J. Oct. 29, 2014), the court denied plaintiff’s motion to compel prison officials to produce electronic medical records in native format from a specialized computer system.  The court held that, under Rule 34, documents must be produced in native format if so requested unless the producing party can demonstrate “undue hardship or expense.”  The defendant established such a hardship by showing that it could not produce records in native format from the records system without “an inordinate drain of time and manpower” because of limitations in the computer system.  The court acknowledged that a non-native “PDF record provided may be less convenient for Plaintiff,” but requiring a native production would impose a “substantial hardship and/or expense, which outweighs Plaintiff's interests in receiving the records in their native format.”  The court nonetheless ordered the defendant to produce certain “audit trail metadata” that the plaintiff had requested.

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