2012 – Page 15 – Electronic Discovery Law

Anthony v. Atlantic Group, Inc., Nos. 8:09-cv-0283-JMC, 8:09-cv-02942-JMC, 2012 WL 4009490 (D.S.C. Sept. 12, 2012)

Dec 01 2012

Key Insight: Court granted motion to compel ?electronically stored information, electronic mail, and social networking data? related to the issues raised in this case and, noting plaintiffs ?direct access? to the information requested, declined to require defendant to seek the information from the relevant service providers

Nature of Case: Employment litigation

Electronic Data Involved: Email, Social media content

Oyebade v. Boston Scientific Corp., No. 1:11-cv-0968-JMS-DML, 2012 WL 4020971 (S.D. Ind. Sept. 12, 2012)

Dec 01 2012

Key Insight: For a ?pattern of discovery misconduct, including the spoliation of evidence? (an audio tape of a meeting with HR), the court imposed an adverse inference and ordered the jury be instructed that Plaintiff destroyed the audio recording ?under circumstances that suggest that the contents ? would not be helpful in proving his claims? and further ordered that Plaintiff would not be allowed to present evidence regarding the meeting with HR, that the jury be instructed to accept defendant?s evidence about the meeting, and that defendant was entitled to its attorneys fees and expenses incurred in seeking redress for the spoliation

Nature of Case: Employment discrimination

Electronic Data Involved: Audio tape of meeting with HR

Dalcour v. City of Lakewood, No. 11-1117, 2012 WL 3156342 (10th Cir. Aug. 6, 2012)

Dec 01 2012

Key Insight: Reviewing for abuse of discretion circuit court affirmed lower court?s denial of motion for an adverse inference based on loss of TASER records where the evidence indicated the loss resulted from a computer error or possibly negligence and where absent evidence of bad faith, no adverse inference was appropriate; court also recognized that allowing plaintiffs to question witnesses about the missing evidence amounted to a lesser sanction for spoliation

Nature of Case: ? 1983 claims

Electronic Data Involved: TASER records

White Baptist Mem?l Healthcare Corp., No. 08-2478, 2012 WL 3776918 (W.D. Tenn. Aug. 29, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motion seeking reversal of Clerk?s entry of bill of costs and specifically found that costs related to ?OCR capture? which the court acknowledged was a ?form of electronic discovery? were recoverable and that the OCR capture in this case was a necessary party of the discovery process

Nature of Case: Violation of FLSA

Electronic Data Involved: Costs related to electronic discovery

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

Archive - 2012