In Legal Battle Between Tech Giants, Northern District of California Splits Baby on Number of Custodians

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Plaintiff moved to add twenty-two additional custodians for production by the defendant. In ruling, the court stated that both parties failed to fully address the legal standard under Fed. R. Civ. Pro. 26, as the plaintiff did not address the proportionality factors and the defendant did not assert that the information sought was irrelevant or too expensive. The court therefore …

New Federal Rules Effective December 1, 2015

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Effective December 1, 2015: Fed. Rule Civ. Pro. 26(b), governing the general scope of discovery and its limits, has been redefined to include an explicit reference to proportionality, and the factors to be considered: “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering …

Massachusetts Court of Appeal Affirms Sanctions for Discovery Abuses and Spoliation

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In 2000, the plaintiffs retained Haese as litigation counsel. In 2005, Andrew Tine, then an associate with Haese, noticed that billing and time entries had been altered without his knowledge. Tine informed the plaintiff of the billing discrepancies and resigned from the firm. In 2006, the plaintiff filed suit against Haese for overbilling. The computer that stored the billing data …

Louisiana Second Circuit Holds that Former Employees are Not under Defendant’s Control for Adverse Presumption Purposes

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In a medical malpractice case, where former employees of the hospital were subpoenaed but not called by the defendant, the Louisiana Second Circuit Court of Appeal affirmed the trial court’s refusal to allow the jury to apply an adverse presumption:  “As former employees, Dr. Walton and Ms. Smith were no longer under defendant’s control for purposes of the uncalled witness rule. Furthermore, …

Louisiana Supreme Court Rejects Independent Tort for Negligent Spoliation

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“The plaintiff contends the allegations contained in his petition are not limited to the singular cause of action of negligent spoliation of evidence and that the sufficiency of the petition should not be measured solely by the existence (or lack thereof) of that specific tort. Rather, he avers the petition sufficiently describes negligent conduct that is recoverable under claims ranging …

District Court in Colorado Taxes E-Discovery Expenses as Costs to the Prevailing Party

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“Courts have recognized that 28 U.S.C. §1920(4) includes e-discovery related costs. Nero v. Am. Family Mut. Ins. Co., No. 11–02717, 2013 WL 5323262 (D.Colo. Sept. 23, 2013) (Defendant ‘is entitled to recover as taxable costs the amount spent on loading data into an electronic database and converting files to TIFF or PDF formats’); Country Vintner of N. Carolina, LLC v. …

District Judge Presiding over the Actos MDL Provides an Excellent Overview of the Current State of the Law, while Sanctioning Defendant for Spoliation

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Judge Doherty, in the Western District of Louisiana, characterized the current state of the law (and technology) as follows: “The common law spoliation doctrine, its nuances and application—along with the duties it imposes on both litigants and prospective litigants, and the ramifications for failing to comply with its requirements—is in a state of development and flux throughout the nation, primarily …

U.S. District Court for the Northern District of California Discusses Timing and Effect of Litigation Holds in Suit between Technology Industry Giants.

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Apple, the owner of patents for smartphone technology, brought a patent infringement action against Samsung. The Court, in a comprehensive discussion of preservation obligations, found that the duty to preserve evidence may attach prior to the filing of suit, when the party first knows or reasonably should know of actual or pending litigation – even where the parties have a history …

Magistrate Judge in the Southern District of New York Issues First Order Approving the Use of Predictive Coding Technology in Discovery.

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Five female employees brought action against their employer alleging gender discrimination.  The presiding magistrate judge, nothing that, to his knowledge, no reported case had addressed the use of computer-assisted coding (i.e., “tools (different vendors use different names) that use sophisticated algorithms to enable the computer to determine relevance, based on interaction with (i.e.,training by) a human reviewer”).  The parties agreed …

United States Magistrate Judge in the District of Utah Rules that Evidence May Be Discarded as a Result of Good Faith Business Procedures.

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“BYU takes issue with Pfizer’s records’ management practices and specifically attacks its record keeping facility, the PRSC, arguing that Pfizer has used it to spoliate or hide documents. BYU, however, has failed to show that Pfizer’s record management practices rise to a level more than mere negligence. Moreover, according to Pfizer, BYU has declined opportunities to search the PRSC facility. …