December 1, 2012 – Page 15 – Electronic Discovery Law

Bruno v. Bozzuto?s, Inc., 850 F. Supp. 2d 462 (M.D. Pa. Feb. 6, 2012)

Dec 01 2012

Key Insight: Where plaintiffs destroyed paper copies of records that were also maintained in electronic format (by a third party) despite anticipation of litigation, court ordered discovery reopened for the purpose of allowing plaintiff to take the necessary action to acquire the electronic records and to provide them to defendant at their own cost and indicated that if the records were no longer in the third party?s possession, the court would ?reconsider its ruling? where the absence of those records would result in a greater degree of prejudice to the defendant

Nature of Case: Breach of contract

Electronic Data Involved: Electronic copies of hard copy records that had been destroyed

Burgess v. Fischer, No. 3:10-cv-00024, 2012 WL 3811863 (S.D. Ohio Sept. 4, 2012)

Dec 01 2012

Key Insight: Court granted defendants? motion for summary judgment as to plaintiff?s claim of spoliation related to video footage of the alleged excessive force where the tape was destroyed pursuant to the jail?s document retention policy after five days and plaintiff?s case was not filed for almost one year and where the court indicated there was no evidence that defendants knew litigation was probable; court did note in footnote, however, that five days is a short retention time and that ?a prudent jail would keep the video of a takedown incident for a longer period of time?

Nature of Case: Claims of excessive force against police officers

Electronic Data Involved: Video surveillance footage

Oracle Am. v. Google, Inc., No. C 10-03561 WHA, 2012 WL 3822129 (N.D. Cal. Sept. 4, 2012)

Dec 01 2012

Key Insight: Court denied motion for electronic discovery costs pursuant to Fed. R. Civ. P. 54(d) and 28 USC 1920 where Defendant?s bill of costs included many line item descriptions for ?intellectual effort? such as ?analyzing the discovery documents,? preparing for and participating in a ?kickoff call? and other communications with co-workers and vendors

Nature of Case: Patent and Copyright infringement

Electronic Data Involved: Taxable costs related to electronic discovery

Borwick v. T-Mobil West Corp., No. 11-cv-01683-LTB-MEH, 2012 WL 3984745 (D. Colo. Sept. 11, 2012)

Dec 01 2012

Key Insight: Where defendant converted relevant audio files to .wav format and destroyed the originals pursuant to its document retention policy, the court declined to enter spoliation sanctions because the record did not establish bad faith reasoning (1) that defendant had provided an adequate explanation for plaintiff?s concern about gaps in the recordings, (2) that plaintiff should have requested the files in native format (which she did not) and that had she done so, defendant would have been on notice to preserve relevant files in their original format, and (3) the files were discarded pursuant to an established document retention policy; regarding bad faith, court stated, ?Only the bad faith loss or destruction of evidence will support either a judgment in favor of Plaintiff or the kind of adverse inference that Plaintiff seeks, i.e., that production of the original i360 recordings would have been unfavorable to Defendant?

Nature of Case: Employment discrimination

Electronic Data Involved: Audio files converted from original format

Estate of Carlock v. Williamson, No. 08-3075, 2012 WL 3878595 (C.D. Ill. Sept. 6, 2012)

Dec 01 2012

Key Insight: Court denied motion for sanctions and for appointment of special master absent evidence that allegedly relevant audio and video were lost in bad faith and where, despite ?concern? over loss of emails resulting from failure to timely suspend automatic deletions, the court ?[did] not find that relevant evidence was destroyed? and further indicated doubt that relevant emails existed; court further found that failure to suspend automatic deletions was merely negligent and not in bad faith; as to unsearched hard drives, court noted that the parties had already expended a large amount of time and money searching for relevant deleted evidence to no avail and that in light of doubts that relevant email ever existed, there was ?nothing to gain by searching those hard drives?

Nature of Case: Death of inmate while incarcerated

Electronic Data Involved: Audio, video, emails, hard drives

Adkins v. Wolever, —F.3d—, 2012 WL 3711433 (6th Cir. Aug. 29, 2012)

Dec 01 2012

Key Insight: Where District Court held that because defendant, a prison guard, did not have control over the preservation of relevant surveillance footage there was no basis to establish his culpability for its loss and thus spoliation sanctions were not warranted, the appellate court acknowledged that other circuits had imposed sanctions for a prison?s loss of relevant footage but determined the case law did not require a finding of negligence for such loss and that, even if the appellate court were to disagree with the District Court?s determination, the conclusion was not ?clearly erroneous?; court spoke to concerns that this would provide carte blanche for prisons? destruction of such footage, but found that imposing a burden upon individual defendant?s to ensure that their employer (the prison) was preserving evidentiary records for every incident with a prisoner was not appropriate

Nature of Case: Action brought by prisoner for injury allegedly inflicted by prison guard

Electronic Data Involved: Surveillance footage

Bobrick Washroom Equip., Inc. v. Am. Specialties, Inc., No. CV 10-6938 SVW (PLA), 2012 WL 3217858 (C.D. Cal. Aug. 8, 2012)

Dec 01 2012

Key Insight: Where Defendant (through counsel) revealed on third day of trial that prior representations were inaccurate and that certain discovery had not been produced, or even searched for, court continued trial and ordered appointment of expert to conduct search of Defendant?s servers and produce responsive materials and later found that cost of expert totaling $168,045, to be paid by Defendant, was a sufficient sanction for failure to timely produce relevant documents; where plaintiff sought spoliation sanctions for Defendant?s failure to timely issue a litigation and failure to sufficiently distribute that hold or to follow up with its employees as to their obligations, but where evidence of spoliation of relevant evidence was minimal, court imposed only monetary sanctions

Nature of Case: Trademark infringement

Electronic Data Involved: ESI

Curcio v. Roosevelt Union Free Sch. Dist., — F. Supp. 2d —, 2012 WL 3236645 (E.D.N.Y. Aug. 10, 2012)

Dec 01 2012

Key Insight: Court noted 2d circuit?s rejection of premise that failure to issue a litigation hold constitutes gross negligence and declined to impose an adverse inference but did impose monetary sanctions for individual?s failure to preserve her own handwritten notes upon finding that she acted in a negligent manner in preserving those notes; court denied motion for spoliation sanctions against ?Roosevelt Defendants? (the District and the Board) for failure to preserve audio tapes that were contaminated with lead and asbestos while in storage and thus discarded ?through no fault? of the Defendants and imposed no sanctions for late production of relevant information

Nature of Case: Employment discrimination

Electronic Data Involved: Audio tapes, handwritten notes, miscellaneous

United States v. Comty. Health Ctr. Of Buffalo, No. 05-CV-237A(F), 2012 WL 3136485 (W.D.N.Y. Aug. 1, 2012)

Dec 01 2012

Key Insight: Where plaintiff was able to recover potentially relevant ESI on defendants? backup tapes which had been produced to plaintiff without restriction following defendants erroneous determination that no responsive documents were contained thereon (as the result of using insufficient software to read the data) and where plaintiff therefore sought unrestricted access to the information, except for privileged documents, and for defendants to pay plaintiff?s cost to review the information, the court determined that defendants? production of the tapes waived their objections to Plaintiff?s efforts to locate responsive information but that the failure to identify potentially responsive documents was not in bad faith and that the information on the tapes was not reasonably accessible and denied Plaintiffs? motion for reimbursement for the cost of reviewing the tapes

Nature of Case: False Claims Act

Electronic Data Involved: ESI on “back-up magnetic tapes”

Gottlieb v. Iskowitz, 2012 Wl 2337290 (Cal. Ct. App. June 20, 2012)

Dec 01 2012

Key Insight: Appellate court found that trial court did not abuse discretion in imposing terminating sanctions for plaintiff?s egregious and willful discovery violations, including repeated failure to produce responsive materials in violation of the court?s multiple orders and subsequent ?dump? of 15 million pages of uncategorized documents that were not Bates labeled or accompanied by a corresponding index and which appeared to be largely non-responsive based on a review of 10% of the documents (?A dump of disorganized documents by definition is non-compliant.?); trial court?s award of significant damages was reversed and remanded for a new default proveup hearing on damages

Nature of Case: Libel, intentional infliction of emotional distress, and related claims

Electronic Data Involved: ESI

Archive - December 1, 2012