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Counting Down the Top Plaintiff eDiscovery Cases of 2012

Posted on December 26th, 2012

It has been an interesting year for plaintiff eDiscovery experts who monitor new developments in electronic discovery law throughout the country. While some of these cases are good for plaintiffs and others less so, in each situation, additional legal issues arise as modern eDiscovery jurisprudence continues to evolve.

Top 2012 eDiscovery Cases for Plaintiff Trial Attorneys

Apple v. Samsung Elecs. Co. Ltd., No. C 11-1864 LHK (PSG)(N.D. Cal July 25, 2012). Litigation holds were at the center of the Smartphone patent wars, with the court holding that the failure to disable an auto-delete email system constituted spoliation, and such conduct warranted an adverse inference instruction against the guilty party.

Taylor v. Mitre Corporation, 2012 WL 5473573 (E.D.Va. Nov. 8, 2012). This lower court case became well known after the plaintiff took a sledgehammer to his work computer. Although it was unknown what data on the computer was destroyed (or whether additional copies were available), the trial court dismissed his case as the appropriate sanction for his miscalculated attempt at spoliation.

Haeger v. Goodyear Tire and Rubber Co., No. CV-05-02046-RHX-ROS (D.Ct.Ariz. Nov. 8, 2012). One year after a settlement was reached, plaintiff trial lawyers discovered defendant Goodyear had purposely concealed relevant documents and made multiple misrepresentations to the court. The trial judge wrote a scathing opinion imposing serious sanctions for the defendants’ spoliation of evidence.

EEOC v. The Original Honeybaked Ham Company of Georgia, Inc. (2012 WL 5430974) (D.Colo. Nov. 7, 2012). Privacy rights advocates beware: Plaintiff ESI production for social media accounts is expanding. In this employment discrimination case, the district court ordered the employees to hand over full access to all email accounts, social media accounts and text messages to a computer forensics expert for an in camera evidentiary review before the court.

Race Tires America, Inc. LLC v. Hoosier Racing Tire Corp. (Race Tires II), No. 11-2316, 2012 WL 887593 (3d Cir. Mar. 16, 2012). Does “making copies” include all eDiscovery fees as taxable costs in 28 U.S.C. § 1920(4)? The Third Circuit’s answer was no; it reduced a cost-taxing award from $400,000 to $30,000, reflecting only the costs of file format conversion and scanning as the equivalent of “making copies.”

Chin v. Port Authority of New York and New Jersey, 2012 WL 2760776 (2nd Cir. July 10, 2012). The Second Circuit delivered a blow to plaintiffs when it refused to issue an adverse inference instruction for spoliation and held that the defendant’s failure to issue a litigation hold did not constitute gross negligence per se.

Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. ___ (2012). The Supreme Court considered whether taxable costs for “compensation of interpreters” in U.S.C. §1920(6) includes the written translation of foreign documents. The court held no—and this made the use of cost-effective foreign language document translation absolutely essential for litigants.

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