Key Insight: Where plaintiff ?contumaciously defied discovery orders? by deleting materials from her hard drive that she had been directed to produce, trial court ?improvidently exercised its discretion? by failing to dismiss all of plaintiff?s claims; appellate court reversed and entered order dismissing plaintiff?s remaining claims
Nature of Case: Personal injury
Electronic Data Involved: ESI on hard drive
Key Insight: In an order addressing a number of discovery concerns, court ordered the parties to meet and confer to resolve ESI disputes and ordered defendants to ?at a minimum? ensure that all files stored in electronic format were produced in a ?searchable? format and to re-produce ESI in native format absent a showing of undue hardship or expense; court ordered defendants to produce metadata and indicated willingness to excuse plaintiff?s failure to request it earlier in light of plaintiff?s ?repeated, good faith requests to meet and confer?
Nature of Case: Fair Labor Standards Act
Electronic Data Involved: ESI
Key Insight: Court granted motion for leave to serve subpoenas on third parties (GoDaddy, Microsoft Office Live, and PayPal) for purposes of obtaining information sufficient to identify and locate suspected copyright infringers but ordered plaintiff to narrow the scope of the subpoenas for the limited purpose of identification
Nature of Case: Copyright infringement
Electronic Data Involved: Information sufficient to identify suspected defendants
Key Insight: Finding ?no reason why social media profiles may not be circumstantially authenticated in the same manner as other forms of electronic content – by their content and context?, court found that a paper copy of a MySpace profile page was properly authenticated by the presence of a photograph of the alleged owner of the profile on the printed page, the presence of unique identifiers such as her date of birth, number of children, and use of the admitted nickname of her boyfriend, ?Boozy?, and by the testimony of an officer that he believed the profile belonged to the alleged owner for the reasons previously listed (presence of unique identifiers, etc.)
Nature of Case: Criminal
Electronic Data Involved: MySpace profile page
Key Insight: Where plaintiff?s search requests were unreasonable and unduly burdensome and where defendant?s proposed ESI search could ?be reasonably expanded to search for relevant information without becoming unduly burdensome?, court ordered the parties to continue negotiating to identify 25 agreed upon search terms to search relevant custodians? reasonably accessible data; court found backup tapes ?not readily accessible because of undue burden or cost? and ordered defendant to run the agreed upon search terms ?only on reasonably accessible sources, such as active and archived data of network computers?
Nature of Case: Class action
Electronic Data Involved: ESI
Key Insight: Where the court ordered plaintiffs to pay defendant?s expenses and fees related to a motion for sanctions arising from plaintiff?s delayed production of documents previously characterized as unrecoverable due to a damaged backup tape, court denied motion for additional sanctions where plaintiffs argued no prejudice resulted from the delay and where the court found no evidence to justify sanctions beyond those already imposed
Nature of Case: Breach of insurance contract and intentional inter-ference with economic relationships
Electronic Data Involved: ESI
Key Insight: Court denied motion for a protective order preventing disclosure of the video of defendant?s train colliding with plaintiffs? car where defendant?s concerns about video manipulation or commercial exploitation was unwarranted and unsupported by evidence beyond speculation; court ordered production of event recorder data for a relevant time period and, because of the need for proprietary software to analyze the data, ordered defendant to either secure permission for plaintiff to utilize the software independently and produce the data and software outright or make the data and software available at a mutually agreeable time and place for plaintiff?s evaluation
Nature of Case: Claims arising from train vs. car collision
Electronic Data Involved: Video of collision & event recorder data and related software
Key Insight: Addressing several objections to the magistrate?s order compelling production of data from non-parties, court held that despite ?minimal? showing of relevance, magistrate did not err in ordering production of data where magistrate weighed the relevance of the data against the burden alleged and ordered appropriate steps to reduce the burden, including limiting the review of documents to those hit by a small set of search terms, waiving respondents? obligations to produce a privilege log, and allowing one respondent to search only its central server rather than 75 individual hard drives following that respondents? showing of undue burden; court rejected petitioner?s objections to the measures taken to reduce the non-parties? burdens
Nature of Case: Litigation surround California’s Proposition 8
Electronic Data Involved: ESI
Key Insight: Where MySpace messages were admitted into evidence upon the testimony of the recipient which established that the messages were sent by someone with access to the alleged sender?s MySpace page but that did not establish the identity of the person who actually sent the communications, appellate court ruled the messages were admitted in error, but that the error did not create a substantial likelihood of a miscarriage of justice; conviction was affirmed
Nature of Case: Appeal of murder conviction
Electronic Data Involved: MySpace messages
Key Insight: Appellate court affirmed lower court?s order finding defendants in contempt, ordering their immediate production of outstanding discovery and establishing facts sufficient to satisfy 2 of the 4 elements of plaintiff?s liability claim where defendants failed to timely produce relevant discovery in violation of the trial court?s order and provided no satisfactory explanation for such failure, and where the trial court determined that defendants were ?hiding? discoverable information
Nature of Case: Personal injury resulting from alleged product defect
Electronic Data Involved: ESI, hard copy
Copyright © 2022, K&L Gates LLP. All Rights Reserved.