2013 – Page 18 – Electronic Discovery Law

Holcomb v. Wells Fargo Bank, N.A., No. CV412-111, 2013 WL 434974 (S.D. Ga. Feb. 4, 2013)

Dec 01 2013

Key Insight: Where plaintiff claimed that the document index which identified which Bates stamped document responded to which document request was not sufficient to enable a meaningful review and that Plaintiff?s counsel was ?unable to decipher the content? of what was produced (apparently because of the presence of ?jargon? and other codes), the court found that the document production was adequate under Rule 34, noting that there was no suggestion that the documents were not produced as they were kept in the usual course of business and that they were identified by Bates stamps to correspond with specific requests but nonetheless ordered counsel to confer in good faith to attempt resolution of ?any ?deciphering? issues? “(e.g. defense counsel or staff could sit down with plaintiff?s counsel and explain any coding or abbreviations?or have a corporate representative provide a glossary of some sort)”

Nature of Case: Lender-liability arising from alleged wrongful foreclosure

Electronic Data Involved: ESI

Chi v. Loyola Univ. Med. Ctr., No. 10 C 6292, 2013 WL 422868 (N.D. Ill. Feb. 1, 2013)

Dec 01 2013

Key Insight: Upon a motion to clarify regarding Plaintiff?s prior motion for sanctions for defendant?s failure to preserve backup tapes, the court confirmed that Plaintiff could recover attorney?s fees and expenses ?reasonably incurred as a result of the failure to preserve backup tapes and the resulting discovery? (even where the follow-up discovery necessitated by the failure to preserve was not fruitful), but made clear that the recovery would be limited and that fees and expenses related to the filing and briefing of the motion for sanctions would not be awarded

Nature of Case: Defamation

Electronic Data Involved: Backup tapes

Fawcett v. Altieri, 960 N.Y.S.2d 592 (N.Y. Sup. Ct. 2013)

Dec 01 2013

Key Insight: Court acknowledged the discoverability of social media content but reasoned that ?[i]n order to obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand,? and thus denied defendant’s motion to compel

Nature of Case: Personal injury

Electronic Data Involved: Social network content (Facebook, MySpace, Friendster, Flickr, etc.)

Tapp v. New York State Urban Dev. Corp., No. 9131N, 2013 WL 3622969 (N.Y. App. Div. Jan. 31, 2013)

Dec 01 2013

Key Insight: Lower court ?correctly determined that plaintiff?s mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection? and that ?to warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff?s Facebook account?

Nature of Case: Personal Injury

Electronic Data Involved: Facebook

Keller v. Nat?l Farmers Union Prop. & Cas. Co., No. CV 12-72-m-DLC-JCL, 2013 WL 27731 (D. Mont. Jan. 2, 2013)

Dec 01 2013

Key Insight: Court denied defendant?s motion to compel plaintiffs? production of printouts of all social media content where the court recognized that discovery of social network content has been allowed by other courts upon a showing that publically available information on those sites undermines the plaintiff?s claims and where no such showing was made in the present case

Nature of Case: Breach of insurance contract

Electronic Data Involved: Social Network Information: Facebook, MySpace, Twitter, etc.

Christou v. Beatport LLC, No. 10-cv-02912-RBJ-KMT, 2013 WL 248058 (D. Colo. Jan. 23, 2013)

Dec 01 2013

Key Insight: Where a defendant negligently ?lost? his cellular phone and thus the text messages on it despite a duty to preserve, the court ordered that plaintiffs would be permitted to introduce evidence at trial of defendants? failure to preserve and to argue whatever inference they hoped the jury would draw, but defendants would be allowed to present an explanation and argue that no adverse inference should be drawn

Nature of Case: Antitrust and related claims; theft of trade secrets; intentional interference with a prospective business

Electronic Data Involved: Text messages

Thompson v. Am. Family Mut. Ins. Co., No. 2:09-CV-905 JCM (NJK), 2013 WL 164245 (D. Nev. Jan. 15, 2013)

Dec 01 2013

Key Insight: District court adopted in its entirety the recommendation of the magistrate judge that Plaintiff?s amended complaint be dismissed and that her answer to defendants? counterclaims be stricken as a sanction for willful and bad faith spoliation where Plaintiff gave her relevant computers to her brother who then took them to Indonesia where he lived and where this spoliation resulted in severe prejudice to defendants; the opinion also upheld a prior order of the magistrate imposing sanctions in the form of findings detrimental to the plaintiff for ?ongoing and repetitive violations of discovery obligations?; as to both the recommendation adopted and the order upheld, the court granted defendant?s request for attorneys fees

Nature of Case: Alleged violation of restrictive covenant with prior employer

Electronic Data Involved: Two computers

Avoid “Discovery About Discovery” with Cooperation

Nov 22 2013

Ruiz-Bueno, III v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013)

In this case, Plaintiffs moved to compel answers to their questions about Defendants’ efforts to respond to Plaintiffs’ discovery requests, including what procedures were undertaken to search for responsive electronically stored information. Defendants objected, arguing that such information was not within the scope of discovery. Following its discussion of whether “discovery about discovery [is] ever permissible” (it is), the court turned to the circumstances of this case and ordered Defendants to respond. In its analysis, the court spent significant time extolling the virtues of cooperation.

Criminal Defendant Entitled to Production of Metadata Related to Police Report

Nov 15 2013

United States v. Tutt, No. 13-cr-20396, 2013 WL 5707791 (E.D. Mich. Oct. 21, 2013)

In this case, the court granted in part Defendant’s Motion for Issuance of a Subpoena Duces Tecum seeking production of the arresting officers’ personnel files and disciplinary records as well as the metadata associated with an arresting officer’s police report. Defendant sought to examine the metadata to confirm the alleged time that the report was written in light of the officer’s claim that he overheard the defendant making incriminating statements to the suspect in the adjoining cell while the officer “simultaneously” drafted his report and memorialized those alleged comments. Defendant denied ever making the statements.

Court Orders Imaging to Ensure Preservation of Self-Proclaimed Hacker’s ESI

Nov 07 2013

Battelle Energy Alliance, LLC v. Southfork Sec., Inc., No. 4:13-cv-00442-BLW, 2013 WL 5637747 (D. Idaho Oct. 15, 2013); Battelle Energy Alliance, LLC v. Southfork Sec., Inc., — F. Supp. 2d —, 2013 WL 5818559 (D. Idaho Oct. 29, 2013)

Plaintiff sought an ex parte temporary restraining order requiring Defendants to disable their website and remove information related to allegedly infringing software and also sought to create a forensic image of one defendant’s hard drive(s) to ensure preservation. The court granted Plaintiff’s application, relying in part on Defendants’ self-identification as hackers. Upon learning the at-issue source code had already been released, however, the court denied Plaintiff’s motion for a preliminary injunction and partially dissolved the TRO, but continued to retain images of the hard drives.

Archive - 2013