December 1, 2012 – Page 6 – Electronic Discovery Law

Beck v. Test Masters Educ. Servs., Inc., No. 04-1391(JDB), 2012 WL 10817176 (D.D.C. Sep. 25, 2012)

Dec 01 2012

Key Insight: Defendant?s lackluster effort to retrieve e-mail after hard drives crashed constituted a conscious disregard of its preservation obligations that could fairly be described as gross negligence or recklessness, and warranted sanctions in the form of an adverse inference instruction; court declined to impose sanctions for defendant?s failure to preserve telephone recordings since there was insufficient evidence that any relevant calls were actually recorded and should have been preserved

Nature of Case: Consumer Protection Procedures Act claims

Electronic Data Involved: E-mails and telephone call recordings

Pacific Coast Marine Windshields Ltd. v. Malibu Boats, LLC, No. 6:12-cv-33-Orl-28DAB, 2014 WL 10817204 (M.D. Fla. Nov. 30, 2012)

Dec 01 2012

Key Insight: Where defendant?s contractor produced CAD files with incorrect creation dates and was subsequently ordered to produce his computer for inspection in an unaltered state, but ran a file-deletion or ?computer cleaning/wiping? program named ?CCleaner? the night before delivering the computer for inspection, court found that sanctions were appropriate to keep defendant from benefitting from contractor?s intentional conduct and to deter others from similar conduct in the future; contractor would not be allowed to testify at trial, all evidence that originated with contractor would be excluded, defendant would not be allowed to rely on contractor?s deposition testimony for summary judgment purposes or at trial, and defendant was required to pay plaintiff?s reasonable attorneys? fees and cost of forensic investigation conducted by plaintiff?s forensic expert

Nature of Case: Patent infringement, misappropriation of trade secrets, unfair competition

Electronic Data Involved: Hard drives of defendant’s contract CAD software operator; metadata and contents of CAD files

FDIC v. Appleton, No. CV-11-476-JAK (PLAx), 2014 WL 10245383 (C.D. Cal. Nov. 29, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced Relativity database with some 700,000 documents culled from its main server using search terms, and defendants complained there was no apparent logic to database and they could not tell what documents were responsive to what requests, court sided with defendants and ordered plaintiff to create files in Relativity into which it would place documents responsive to each particular request

Nature of Case: Receiver brought action against former officers and directors of failed bank

Electronic Data Involved: ESI

FTC v. Lights of America, Inc., No. SACV 10-1333 (JVS) (MLGx), 2012 WL 695008 (C.D. Cal. Jan. 20, 2012)

Dec 01 2012

Key Insight: Court held plaintiff was not obligated to issue a litigation hold at the beginning of its full-phase investigation or upon the issuance of a CID because litigation was not reasonably foreseeable at those times, noting that the duty to preserve attaches when litigation is probable, which means ?more than a possibility?; court declined to order sanctions related to plaintiff?s auto-delete policy where the policy called for the preservation of relevant ESI and the deletion of duplicates and indicated that even if the policy resulted in the inadvertent loss of email, there was no evidence of bad faith, and cited Rule 37(e) re: safe harbor; court declined to impose sanctions for failure to issue a litigation hold over documents not in the plaintiff?s possession or control

Nature of Case: Government investigation

Electronic Data Involved: ESI

James v. Edwards, No. CL11-225, 2012 WL 9735714 (Va. Cir. Ct. July 24, 2012)

Dec 01 2012

Key Insight: Court granted in part motion to compel disclosure of the contents of Plaintiff?s Facebook account and ordered Plaintiff to provide his counsel with his username and password, which his counsel could then utilize to provide access to Plaintiff?s Facebook account to defense counsel; defendant was not allowed to be present during the review of his Facebook account; court imposed date range on relevant materials; court found Plaintiff?s expectation of privacy in his account ?misplaced? in light of Facebook?s privacy disclaimers which ?dispel any notion that information one chooses to share, even if only with one friend, will not be disclosed to anybody else?

Nature of Case: Personal injury

Electronic Data Involved: Facebook

Colgate-Palmolive Co. v. Tandem Indus., 485 Fed. Appx. 516 (3d Cir. 2012)

Dec 01 2012

Key Insight: Considering Defendant?s argument for an adverse inference where his former employer failed to produce his former work laptop and files, the court noted that the ?undisputed evidence show[ed] that Colgate destroyed the data on the laptop shortly after Flower?s retirement,? and concluded that: ?When data is destroyed pursuant to normal recordkeeping practices (and in particular when it is destroyed in relation to a major event like an employee?s retirement), no adverse inference is warranted.?

Nature of Case: Breach of fiduciary duty

Electronic Data Involved: Laptop and its files

Chura v. Delmar Gardens of Lenexa, Inc., No. 11-2090-CM-DJW, 2012 WL 940270 (D. Kan. Mar. 20, 2012)

Dec 01 2012

Key Insight: Court found that ?Defendant?s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents raise[d] justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to Plaintiff?s discovery requests? and thus scheduled an evidentiary hearing and ordered Defendant to be prepared to present evidence on its preservation and search efforts (specific topics identified in court?s order)

Nature of Case: Employment discrimination

Electronic Data Involved: Miscellaneous ESI

Finnerty v. Stiefel Labs. Inc., 900 F. Supp. 2d 1317 (S.D. Fla. 2012)

Dec 01 2012

Key Insight: Court held that costs related to the creation of an electronic database solely for the benefit of Plaintiff?s counsel were not taxable as fees for exemplification

Nature of Case: Securities fraud

Electronic Data Involved: Taxable costs

Townsend v. Ohio Dept. of Transp., No. 11AP-672, 2012 WL 2467047 (Ohio Ct. App. June 28, 2012)

Dec 01 2012

Key Insight: Trial court abused its discretion in denying motion to conduct forensic analysis of defendant?s email and electronic data systems where defendant?s employee admitted to sending a highly relevant email that was never produced and where defendant failed to establish that production ?would incur undue burden or expense?; court?s analysis included consideration of whether deleted emails were discoverable (yes) and the need for a protocol to protect the producing party?s privilege, confidential information

Nature of Case: Personal injury resulting from auto accident

Electronic Data Involved: Email

Roxane Labs. Inc. v. Abbot Labs., No. 2:12-cv-312, 2013 WL 1829569 (S.D. Ohio Apr. 30, 2012)

Dec 01 2012

Key Insight: Where Plaintiff argued that production of the requested ESI would be unduly burdensome because of the lack of a ?centralized electronic document system? which would require it to ask ?hundreds of employees to search their electronic documents,? and would require ?significant effort to review and produce,? and where Plaintiff also argued that a 30(b)(6) deposition would be a less burdensome method of obtaining discovery, the court noted the lack of information provided to establish the burden alleged and reasoned that ?the mere fact that a party does not have a centralized electronic document system? does not establish undue burden and granted defendant?s motion to compel

Nature of Case: Patent litigation seeking declaratory judgment of invalidity and noninfringement

Electronic Data Involved: ESI

Archive - December 1, 2012