December 2012 – Page 6 – Electronic Discovery Law

Thermotek, Inc. v. Orthoflex, Inc., No. 3:11-cv-870-D (BF), 2015 WL 4138722 (N.D. Tex. July 7, 2012)

Dec 01 2012

Key Insight: For Defendants? discovery failures, including gross negligence in the identification and collection of potentially relevant documents (as a result of an individual defendant?s attempts to identify and collect responsive documents himself) and a ?cavalier attitude towards his discovery obligations? (as evidenced by the ?repeated failure? to conduct a proper document collection? and ?lack of candor regarding their document productions,? e.g., failure to indicate that certain produced emails were not ?the actual transmittal communications? that originally accompanied invoices), the court declined to impose severe sanctions absent evidence of bad faith – although the request was denied without prejudice – and ordered Defendants to pay reasonable expenses and fees incurred by Plaintiff that were attributable to Defendants? discovery misconduct, which Plaintiff represented could exceed $100,000

Nature of Case: Breach of contract, breach of warranty, unfair competition, fraud

Electronic Data Involved: ESI, including QUickbooks

Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012)

Dec 01 2012

Key Insight: On petition for discretionary review, Court of Criminal Appeals affirmed appeals court?s finding that state proffered sufficient evidence to establish a prima facie showing that social-networking webpage offered into evidence was authored by the defendant based upon sufficient circumstantial evidence to ?support a finding that the exhibits were that they were purported to be?; court?s opinion discussed proper procedures for authenticating evidence

Nature of Case: Criminal

Electronic Data Involved: Social Media Content (e.g., MySpace.com)

Trail v. Lesko, NO. GD-10-017249, 2012 WL 2864004 (Pa. Com. Pl. July 5, 2012)

Dec 01 2012

Key Insight: Relying on PA Rule of Civil Procedure 4011(b) ?which bars discovery that would cause ?unreasonable annoyance, embarrassment, oppression …?? court denied cross motions to compel discovery of parties? social media content ?because the intrusions that such discovery would cause were not offset by any showing that the discovery would assist the requesting party in presenting its case?

Nature of Case: Motor vehicle accident

Electronic Data Involved: Social Media content (e.g., Facebook)

Lake Village Healthcare Ctr., LLC v. Hatchett, 407 S.W. 3d 521 (Ark. 2012)

Dec 01 2012

Key Insight: Trial court did not err when it struck part of defendants’ answers as sanction for discovery violations where trial court’s order specifically detailed the opportunities afforded defendants to either comply with the email request or furnish a basis upon which the court could determine they were trying to comply with the request, and trial court found that defendants failed to produce the emails in response to the discovery request, failed to produce the emails when ordered by the court, failed to timely notify the court of compliance problems, failed to furnish sufficient information of their good faith efforts, and failed to furnish information regarding when compliance could be expected

Nature of Case: Wrongful death, negligence, breach of fiduciary and confidential duty, medical malpractice

Electronic Data Involved: Email

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

Archive - December 2012