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On Appeal, KPMG Ordered to Continue Preservation of more than 2500 Hard Drives : Electronic Discovery Law

February 14, 2012 By Leave a Comment

Pippins v. KPMG LLP, —F.R.D.—, 2012 WL 370321 (S.D.N.Y. Feb. 3, 2012)

In this opinion, the District Court found the Magistrate Judge’s order requiring defendant’s preservation of more than 2500 hard drives was not clearly erroneous or contrary to law.  Finding objections to the order moot, however, because plaintiffs’ motion for conditional certification of a nationwide class was granted, the court denied defendant’s motion for a protective order and ordered preservation of the hard drives until the parties could agree on a sampling methodology, until defendant abandoned a particular litigation position, or until members of each relevant class were established.

In this case, plaintiffs—former and departing Audit Associates at KPMG—filed an action under the Fair Labor Standards Act (“FLSA”) and New York Labor laws and sought conditional certification of a collective action under the FLSA.  In a prior opinion discussed here, a Magistrate Judge denied KPMG’s motion for a protective order and ordered ongoing preservation of more than 2500 hard drives during the pendency of plaintiffs’ motion to certify.  Two prominent factors in that decision were the potential for all Audit Associates to become plaintiffs either as part of a class or individually and the inability of the court to determine the potential relevance or value of the contents of the at-issue hard drives because of KPMG’s refusal to provide any information regarding the same.  On appeal, KPMG asked the District Court to set aside that order and to grant a protective order to limit the scope of its preservation obligation.

via On Appeal, KPMG Ordered to Continue Preservation of more than 2500 Hard Drives : Electronic Discovery Law.

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Failure to Produce Originals Could be Spoliation in Third Circuit : Electronic Discovery Law

January 26, 2012 By Leave a Comment

Bull v. United Parcel Service, Inc., — F.3d —, 2012 WL 10932 (3d Cir. Jan. 4, 2012)

In this case, the appellate court concluded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information,” but found that in the present case, the District Court abused its discretion in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

The plaintiff in this case failed to produce two original notes from her doctor (but did produce copies during discovery).  During trial, when plaintiff’s counsel attempted to introduce a copy of one of the notes, defendant objected on the basis of best evidence.  In the sidebar that followed and in subsequent questioning of the plaintiff by the court, it became clear that there was some confusion between plaintiff and counsel as to the existence of the originals.  Ultimately, plaintiff indicated that the original note “should be” at her home and the there was no reason she did not search for it previously.  This contradicted her attorney’s representation that the plaintiff had been asked for the originals and reported that she could not find them.  Accordingly, the District Court declared a mistrial and invited the defendant to file a motion for sanctions.  Plaintiff produced the original doctor’s notes to the court five days later.  Thereafter, upon consideration of defendant’s motion for sanctions, the District Court invoked its inherent authority and ordered the case dismissed with prejudice.  Plaintiff appealed.

via Failure to Produce Originals Could be Spoliation in Third Circuit : Electronic Discovery Law.

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Court Finds Costs Related to Database “Used as Means of Document Production” are Taxable but Reverses Award in Light of Cost Sharing Agreement : Electronic Discovery Law | K & L Gates

December 19, 2011 By Leave a Comment

In re Ricoh Co., Ltd. Patent Litig., No. 2011-1199, 2011 WL 5928689 (Fed. Cir. Nov. 23, 2011)

In this case, Ricoh sought review of the district court’s award of costs to Synopsys related to the parties’ use of Stratify (“a third-party electronic database service”) for the production of email.  The appellate court concluded that the district court did not err in determining that costs related to the database could be recovered pursuant to 28 U.S.C. § 1920(4), but reversed the lower court’s award in light of the parties’ agreement to split the costs.

In the course of the underlying litigation, the parties were initially unable to agree on the form of production.  Eventually, Ricoh suggested using Stratify, “a third party electronic database service,” and that the costs be divided between the parties.  Synopsys agreed.  After the case was resolved in favor of Synopsys, the district court awarded costs, pursuant to 28 U.S.C. § 1920, including costs related to Stratify.  On appeal, Ricoh argued that the district court erred in awarding such costs.

via Court Finds Costs Related to Database “Used as Means of Document Production” are Taxable but Reverses Award in Light of Cost Sharing Agreement : Electronic Discovery Law.

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