December 1, 2013 – Page 6 – Electronic Discovery Law

W. Penn. Elec. Employees Pension Fund v. Alter, No. 2:09-cv-04730-CMR, 2013 WL 4803564 (E.D. Pa. June 26, 2013), approved and adopted in substantial part, 2013 WL 4799061 (E.D. Pa. Sep. 6, 2013)

Dec 01 2013

Key Insight: In this Report and Amended Recommended Order, Special Discovery Master agreed with plaintiffs that they should have the opportunity to confirm, though inspection by neutral e-discovery vendor already retained by parties, defense counsel?s representations as to contents of individual defendant?s belatedly-disclosed hard drive, because without the requested examination, there was no way to know if, in fact, hard drive contents were duplicative of data already produced by another party as the individual defendant claimed; Special Master found request was not unreasonable given the centrality of the defendant in events giving rise to the lawsuit, the unsubstantiated nature of defense counsel?s claim that the data was duplicative, that the defendant had provided only limited discovery to plaintiffs, that the defendant, through his counsel, had previously denied possession of any responsive data when the hard drive had been in his home and responsive documents were on his personal computer, much time and money had been expended in the effort to obtain the documents from other sources, and plaintiffs should not be expected to accept without question the claim that the defendant ?simply forgot? he had received company documents prior to his departure; district court subsequently adopted recommendation but modified deadlines and division of costs

Nature of Case: Securities class action

Electronic Data Involved: Material on hard drive belatedly disclosed by individual defendant

Westdale Recap Props., Ltd. v. NP/I & G Wakefield Commons, LLC, No. 5:11-CV-659-D, 2013 WL 5424844 (E.D.N.C. Sep. 26, 2013)

Dec 01 2013

Key Insight: Where producing party defended tardiness of production by explaining it had been awaiting agreement on protocol for ESI, as contemplated in parties? discovery plan, and proposed search terms from plaintiffs to conduct a supplemental search of ESI pursuant to such protocol, court granted in part and denied in part plaintiffs? motion to compel, setting deadlines for plaintiffs to provide different custodians, dates and/or keyword search terms, and for production, resolving that production should be in the form of searchable PDF?s with the option of requesting particular ESI in native format if there is a demonstrable need, and requiring defendant to prepare privilege log meeting requirements of Rule 26(b)(5)(A) and duly signed by counsel for any otherwise responsive documents withheld on grounds of privilege

Nature of Case: Fraud, civil conspiracy, unfair and deceptive trade practices and negligent misrepresentation

Electronic Data Involved: ESI

Watson Carpet & Floor Covering, Inc. v. Mohawk Ind., Inc., No. 3:09-0487, 2013 WL 5306444 (M.D. Tenn. Sep. 20, 2013)

Dec 01 2013

Key Insight: Reasoning that a request for production cannot require a responding party to create documents that are not already in existence, court denied plaintiff’s motion to compel production of comparison sales reports for other U.S. sales districts where there was no dispute that the additional documents requested did not exist and would need to be created by extracting historical data from archive and backup data storage maintained by defendant

Nature of Case: Antitrust claims

Electronic Data Involved: Sales data

Davis v. Carmel Clay Schools, No. 1:11-cv-00771-SEB-MJD, 2013 WL 5487340 (S.D. Ind. Sep. 30, 2013)

Dec 01 2013

Key Insight: Where school did not keep records identifying the individuals who requested that hard drive of camera located inside school bus be removed, nor did school keep logs of who handled and/or viewed such hard drives once they were removed, and hard drive containing video footage of alleged assault was removed from subject school bus and then subsequently reinstalled on a different bus by persons unknown, resulting in overwriting of file containing segment that would have captured alleged assault, court denied plaintiffs’ motion for spoliation sanctions finding no evidence to support a conclusion that the act of reinserting the hard drive into another bus was undertaken in order to destroy adverse evidence as opposed to its being mere negligence in the handling of the hard drive, and no evidence to support conclusion that any employee of the school manually deleted the video files in an effort to destroy evidence; court would revisit issue if additional evidence came to light

Nature of Case: Title IX of the Education Amendments Act of 1972 claims that plaintiff was subject to unlawful peer-on-peer harassment that violated his constitutional rights, and that school failed to properly train its officials in recognizing and responding to sexual assault and harassment

Electronic Data Involved: Hard drive from video camera installed on school bus where incident allegedly occurred

IBM Corp. v. ACS Human Servs., LLC, 999 N.E.2d 880 (Ind. Ct. App. 2013)

Dec 01 2013

Key Insight: Trial court did not abuse its discretion when it awarded third party some, but not all, of its discovery costs under court rule where court awarded all costs of non-party?s e-discovery vendor ($355,329) and one-half of non-party?s costs for dedicated document review team ($354,070), basing the 50% reduction on non-party?s ?largely unexplained? delay in producing documents and principles of general equity; nor did trial court abuse its discretion when it awarded IBM $425,179 in sanctions against same third party representing some, but not all, attorneys? fees and other costs IBM incurred as a result of non-party?s failure to comply with discovery orders, as court had authority under court rules and its inherent power to issue sanctions against non-parties, non-party?s resistance to or failure to comply with discovery orders was not substantially justified and sanctions were not otherwise unjust, and non-party?s conduct was sanctionable as IBM filed multiple motions to compel, trial court found that non-party?s opposition was not reasonable, and trial court intervened numerous times in the discovery process to secure non-party?s compliance

Nature of Case: IBM and the State of Indiana filed lawsuits against one another related to the State’s Family and Social Services Administration modernization initiatives

Electronic Data Involved: ESI

Drummond Co., Inc. v. Collingsworth, No. 13-mc-81069-JST (JCS), 2013 WL 6074157 (N.D. Cal. Nov. 18, 2013)

Dec 01 2013

Key Insight: Court evaluated various arguments offered by defendants and email account holders resisting production of requested information and found that defendants did not have standing to move to quash the subpoenas, account holder who was human rights lawyer and US citizen established prima facie case of infringement of her right to freely associate, and other account holders who were non-US citizens did not have First Amendment rights; court limited time frame of certain requests and also determined that, because disclosure of identifying and usage information for the accounts beyond counsel may pose a safety risk to the email account holders and/or their families, defendants were entitled to a protective order prohibiting plaintiff?s counsel from sharing such information beyond counsel of record and their employees

Nature of Case: Motion to quash subpoenas to Google and Yahoo! issued in libel action pending in N.D. Ala.

Electronic Data Involved: Subscriber and usage information associated with four email addresses

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 SRN/SER, 2013 WL 6094600 (D. Minn. Nov. 20, 2013)

Dec 01 2013

Key Insight: District court affirmed in part magistrate judge?s order (at 2013 WL 5687559) denying plaintiff?s request for forensic examination of laptop computers used by plaintiff during her employment, as defendant produced 56,625 pages of documents from most recently used laptop, and burden and expense of forensic examination of previous laptop outweighed its likely benefit, given that plaintiff did not assert even a belief that relevant information existed on that computer that was not produced from other sources; court reversed in part magistrate judge?s order denying access to text and voice messages, finding that plaintiff demonstrated that ?the scale tips in her favor? in regard to two mobile phones provided by defendant to plaintiff and another witness for work-related purposes, and ordering parties to meet and confer upon protocol to be used in conducting search for responsive text messages and voice messages contained on the two devices

Nature of Case: Employment discrimination

Electronic Data Involved: Work laptops, and text messages and voice messages on certain mobile devices

Home Instead, Inc. v. Florance, No. 8:12CV264, 2013 WL 5979629 (D. Neb. Nov. 8, 2013)

Dec 01 2013

Key Insight: Finding defendants? effort to respond to discovery inadequate in various respects, court granted plaintiff’s motion to compel and ordered defendants: (1) to provide detailed listing of all documents responsive to plaintiff’s discovery and in defendants’ possession, custody or control as of date of discovery requests, but which were not produced because defendants destroyed, deleted, sold, shredded or otherwise discarded them, along with a description of how and when defendants lost control or possession of such information, (2) to further search for and respond to discovery, produce any additional discovery located, and explain by written affidavit, as to each separate document request, the efforts made to locate responsive documents, and (3) to provide a sworn affidavit outlining whether a litigation hold was put in place, persons to whom litigation hold letter was sent, directions for preservation, sources identified for search, search terms used and efforts to ensure compliance with litigation hold; court further faulted defendants? production of one large PDF that contained no metadata, no indication of parent-child document relationship, and no indication as to the beginning and end of each document, and ordered defendants to produce responsive information in a manner that complied with the Federal Rules

Nature of Case: Franchise dispute involving claims for violation of non-compete clause, misappropriation of trade secrets and license marks, and other claims

Electronic Data Involved: ESI

In re Heinz, 501 B.R. 746 (Bankr. N.D. Ala. 2013)

Dec 01 2013

Key Insight: Although court found that evidence compelled conclusion that debtor?s spoliation of electronic evidence, failure to preserve both ESI as well backup paper documentation, and failure to produce thumb drive was willful and intentional given the timing during imminent or ongoing litigation, court declined to impose a specific sanction against the debtor such as a default judgment and instead drew an adverse inference against debtor to the extent it impacted the debtor?s overall credibility; court ultimately found that plaintiffs? claim against the debtor for $39,296, stemming from judgment obtained by plaintiffs against debtor for breach of contract, was not dischargeable

Nature of Case: Complaint to determine dischargeability

Electronic Data Involved: Thumb drive containing financial information from 2009 through 2011

Cobb v. Commonwealth, No. 1526-12-1, 2013 WL 5744363 (Va. Ct. App. Oct. 22, 2013)

Dec 01 2013

Key Insight: Trial court did not err in admitting into evidence Verizon Wireless text message records reflecting text messages sent by and between shooter?s cell phone and defendant?s cell phone, as such records constituted “originals” or “duplicate originals” for purposes of the best evidence rule, and there was sufficient foundation for the records? admission under the business records exception to the hearsay rule as reliability of records was established through testimony of the custodian of records for Verizon Wireless that the records were accurate, they were made in the regular course of business, they were relied upon by Verizon Wireless in the transaction of business, and they were made contemporaneously with the creation of the text messages themselves

Nature of Case: Defendant was found guilty of murder, attempted robbery and other crimes

Electronic Data Involved: Text messages

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