2012 – Page 14 – Electronic Discovery Law

Chandler v. Buncich, No. 2:12 cv 175, 2012 WL 4343314 (S.D. Ind. Sept. 24, 2012)

Dec 01 2012

Key Insight: Where plaintiff sought a preservation order but made no attempt to show that defendants would destroy evidence and instead focused on the prejudice that he may suffer if such destruction occurred, court indicated that the possibility of prejudice alone was insufficient to warrant the relief requested and further noted that defendants had acknowledged their duty to preserve and that there was no reason to doubt that they would fulfill that duty

Nature of Case: Injuries from attack suffered while in custody

Electronic Data Involved: Surveillance data, photos & “related media”

St. Louis Produce Mkt. v. Hughes, No. 4:09CV1912 RWS, 2012 WL 4378194 (E.D. Mo. Sept. 25, 2012)

Dec 01 2012

Key Insight: In a case where defendant tried to ?pull a fast one? by altering material terms to a contract and inducing plaintiff to sign it, defendant sought but was repeatedly unable to procure production of defendant?s laptop — which it suspected was used to alter the contract — and when the laptop was produced, it had been substantially damaged. Moreover, evidence indicated that defendant had destroyed relevant cell phone records and emails and that defendant?s counsel made repeated misrepresentations to the court. Thus, the court struck defendant?s pleadings as a sanction.

Nature of Case: Declaratory judgment that contract was invalid because procured by fraud

Electronic Data Involved: Laptop

Musket Corp. v. Star Fuel of Okla., No. CIV-11-444-M, 2012 WL 3986344 (W.D. Okla. Sept. 11, 2012); No. CIV-11-444-M, 2012 WL 4363752 (Sept. 21, 2012)

Dec 01 2012

Key Insight: Where independent forensic examiner was tasked with determining whether plaintiff?s data was present on defendant?s laptop and with maintaining an image of defendant?s laptop sealed from inspection, but where plaintiff reserved the right seek discovery and thereafter subpoened the non-party investigator to produce the mirror image of defendant?s laptop, magistrate judge found that rule 45 subpoena was an appropriate discovery method and denied defendant?s motion to quash; on emergency appeal, the District Court noted that allowing direct inspection of a party?s hard drive was not routine, that because of the presence of potentially privileged material, even plaintiff?s expert should not have access to the entire hard drive without allowing defendant?s to object to the production of certain information and that in light of the short time before trial it was ?simply too late?; court noted that this ?predicament? was one plaintiff ?created itself? by waiting to seek access to the hard drive despite knowing for months of the potential that its data was present there

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: Hard drive

DMAC LLC v. City of Peekskill, No. 09 Civ. 5093 (GAY), 2012 WL 4459290 (S.D.N.Y. Sept. 26, 2012)

Dec 01 2012

Key Insight: Court granted motion for sanctions and ordered an adverse inference for trial where defendant was grossly negligent in its destruction of relevant emails (as proven by Plaintiff?s receipt of relevant emails from third parties that should have been in defendant?s possession, for example, and defendant?s failure to dispute the existence of certain emails which were relevant to plaintiff?s claims but which were not produced); court found defendant was ?at least negligent? in its failure to preserve (and later found that defendant was grossly negligent) where the city had no formal email retention policy and instead relied on its employees to determine what to save: ?Because the City has effectively conceded that it had a duty to preserve the e-mails in question, its failure to maintain a formal e-mail retention policy was at least negligent.?

Nature of Case: Violation of constitutionally protected property rights based on Stop Work Order

Electronic Data Involved: ESI

Kregg v Maldonado, —N.Y.S.2d—, 2012 WL 4469935 (N.Y. App. Div. Sept. 28, 2012)

Dec 01 2012

Key Insight: Where lower court granted defendants? motion to compel the ?entire contents? of plaintiff?s social media accounts, appellate court found the ruling was in error where there was no contention that the contents contradicted plaintiff?s claims and where the appellate court determined the ?proper means? to obtain disclosure of relevant information was a ?narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident?

Nature of Case: Claims related to injuries from motorcycle accident

Electronic Data Involved: Social media accounts

SEC v. Mercury Interactive LLC, No. C 07-02822 WHA, 2012 WL 4466582 (N.D. Cal. Sept. 25, 2012)

Dec 01 2012

Key Insight: Where, the SEC mistakenly deleted documents based on a miscommunication/misunderstanding with the producing party including the mistaken belief that the documents were maintained elsewhere (e.g. by the producing party or its counsel) and thereafter could not produce them when requested, the magistrate judge found that the deletion was not in bad faith and that an adverse inference was not warranted where defendants failed to show the relevance of the missing documents; on appeal the District Court denied defendants? motion for relief from the magistrate judge?s order

Nature of Case: SEC investigation

Electronic Data Involved: ESI

EEOC v. New Breed Logistics, No. 10-2696 STA/TMP, 2012 WL 4361449 (W.D. Tenn. Sept. 25, 2012)

Dec 01 2012

Key Insight: Upon Plaintiff?s motion for spoliation sanctions, court recognized two relevant trigger dates, the second of which expanded the initial scope of preservation, and found that Defendant was negligent in its failure to preserve relevant emails but declined to impose an adverse inference and instead ordered Defendant to bear the cost of restoring 33 backup tapes to determine if relevant information was contained thereon

Nature of Case: Sexual harassment

Electronic Data Involved: Emails

Barnes v. District of Columbia, —F. Supp. 2d —, 2012 WL 4101943 (D.D.C. Sept. 19, 2012)

Dec 01 2012

Key Insight: Where plaintiffs discovered, late in the discovery time period, that defendant?s database production was incomplete but defendant claimed plaintiffs were merely using the wrong query?a query that defendant had not yet produced?the court ordered that defendant produce the relevant query and left open plaintiffs? option to re-file its motion to compel production of additional data if, upon conducting its analysis with the proper query, it nonetheless determined (and could successfully show) that relevant data was missing

Nature of Case: Civil rights claims related to overdetention and strip searching of inmates

Electronic Data Involved: Database content, relevant database query

United States v. Jarman, No. 11-31217, 2012 WL 2700403 (5th Cir. July 9, 2012)

Dec 01 2012

Key Insight: Circuit court affirmed district court?s granting of defendant?s motion to compel production of a mirror image of a hard drive containing child pornography evidence where defendant?s expert presented unrebutted evidence that she could not conduct her investigation at a government facility because of ?time limitations and restrictions? and thus the circuit court could not conclude that the district court?s determination of ?no ?amply opportunity?? to investigate was clear error; court clarified, however, that it rejected the notion that inconvenience equated to a failure on the part of the government to make the child pornography evidence reasonably available and clarified that when such evidence is made available for inspection at a government facility, ?that is reasonable availability? such that the only issue to be resolved is whether the conditions imposed do not provide ?ample opportunity? for examination of the material

Nature of Case: child pornography; Adam Walsh Act

Electronic Data Involved: Child pornography evidence on hard drive

Perez-Garcia v. Puerto Rico Ports Auth., No. 08-1448 (GAG), 2012 WL 2553274 (D.P.R. July 3, 2012)

Dec 01 2012

Key Insight: Court found request for sanctions for defendant?s failure to retain records dating back to 1995 was not supported by the rules or the case law on the subject and stated that ?Corporations may maintain their records according to their business practices, so long as the record keeping does not afoul [sic] of the rules outlined by the Federal Rules of Civil Procedure, the Federal Rules of Evidence and judicially created rules of the court.? Addressing plaintiff?s citation to an Eighth Circuit case ?that states that a negative inference can be given when the company?s policy for retention of documents is unreasonable or in bad faith,? (Remington Arms Co. , 836 FRD 1103 (8th Cir. 1988)) the court found that defendant?s policy was neither unreasonable nor in bad faith

Nature of Case: Claims arising from crash of golf cart perhaps related to faulty emergency brake

Electronic Data Involved: ESI

Archive - 2012