December 1, 2014 – Electronic Discovery Law

Virco Mfg. Corp. v. Hertz Furniture Sys., No. CV 13-2205 JAK(JCx), 2014 WL 12591482 (C.D. Cal. Fan. 21, 2014)

Dec 01 2014

Key Insight: The court granted Defendant?s motion to compel production of email attachments, noting that ?by failing to produce email attachments, plaintiff has effectively redacted, based upon relevance, portions of documents it otherwise apparently views to be discoverable/relevant/responsive to defendants? discovery requests.? The court further noted that Plaintiff ?offered no evidence that it would suffer any undue burden from producing such electronic data.?

Electronic Data Involved: Email

Stewart v. Nucor Corp., No. 3:13-cv-0057-KGB, 2014 WL 12611316 (E.D. Ark. Dec. 8, 2014)

Dec 01 2014

Key Insight: Defendant moved to strike Plaintiffs answer, enter default judgement and give an adverse inference jury instruction as sanctions for alleged spoliation of video footage. The court held that destruction of the footage was prejudicial to Plaintiff, being the only recording of the accident. Defendant did not have an official retention policy and indicated the video at issue was overwritten ?within weeks of the accident through routine system operation.? However the court did not find Defendant acted in bad faith, and thus denied with prejudice Plaintiff?s motion to strike Defendant?s answer and enter default judgement. The court denied without prejudice Plaintiff?s request to strike the affirmative defense asserting Plaintiff?s fault as well as the request to prohibit Defendant from mentioning the tape/contents/employee statements regarding the tape during trial. Plaintiff may file a motion in limine to further pursue exclusion of evidence.

Electronic Data Involved: Video footage

Harrington Enters., Inc. v. Safety-Kleen Sys., Inc., No. 13-00167-CV-W-BP, 2014 WL 12611318 (W.D. Mo. July 11, 2014)

Dec 01 2014

Key Insight: Court denied motion to compel searches of current and proposed custodians using additional search terms where Plaintiff failed to establish the relevance of the terms or the likelihood they would lead to admissible evidence and where Defendant had already provided discovery regarding the alleged issue, thus rendering the discovery cumulative and duplicative; court also denied motion to add custodians where Plaintiff again failed to establish relevance and where Defendant had shown that the ESI for the requested custodians was not reasonably accessible because it would require restoration of disaster backup tapes and ?substantial time, effort, and cost? to search

Electronic Data Involved: ESI (additional search terms, custodians)

Innovation Ventures, LLC v. N2G Distrib., Inc., No. SA CV 12-00717-AB (Ex), 2014 WL 10384643 (C.D. Cal. Dec. 10, 2014)

Dec 01 2014

Key Insight: Court denied recovery of the cost of ?storage of produced documents in [an] electronic discovery database? where Plaintiff failed to establish that the database was necessary and not merely beneficial or convenient

Electronic Data Involved: Taxable costs

State Farm Mut. Auto. Ins. Co. v. Physiomatrix, Inc., No. 12-cv-11500, 2015 WL 1029540 (E.D. Mich. Mar. 3, 2014)

Dec 01 2014

Key Insight: Court found an individual defendant had control over deleted emails in an account located on a Comcast server and that the deletion of the emails was not ?merely coincidental to the winding-down of the business operations? of Defendant but rather was intentional, ?to prevent the discovery of the evidence therein?; reasoning that Plaintiff was not prevent from proving its most crucial allegations, the court declined to impose ?case-terminating? sanctions, but did order monetary sanctions against the individual defendant who controlled the emails and that Defendants? would bear the cost of a forensic search of their computers; notably, the inspection would apply to all defendants? computers, despite the court?s finding that one individual defendant had no control over the deleted emails and could not be held responsible for the deletion where the court explained (in footnote) that the non-spoliating defendant?s email account (used by his clinic) was registered to the spoliating defendant and where the non-spoliating defendant testified that he had not conducted a proper search of his computers

Electronic Data Involved: Emails on third party (Cloud) server

Lee v. Chicago Youth Ctrs., 69 F. Supp. 3d 885 (N.D. Ill. 2014)

Dec 01 2014

Key Insight: Reasoning that ?[h]aving contented themselves to file a response to the motion to compel that was conclusory and factually and legally unsupported, the defendants must live with the consequences of that decision,? the court found privilege was waived as to two allegedly inadvertently produced emails; court?s analysis also criticized Defendants? attempts to rectify the inadvertent production where, upon being notified of possible inadvertent production, they relied upon their vendor?the same vendor responsible for the inadvertent production in the first place?to search for privileged information which the vendor subsequently missed and also criticized defense counsels? failure to undertake a review of the information themselves: ?There is a good deal of merit to the plaintiff?s contention that defendants? four lawyers, who are members of a firm whose ?website boasts a roster of ?nearly 800 attorneys,? having ?delegated document review to an unidentified outside vendor (particularly after having been specifically advised of a potential problem with the production)? simply cannot be heard to argue that they took ?the kind of prompt reasonable steps to rectify any error in production which should allow them now to assert inadvertence and avoid a finding of waiver.??

Electronic Data Involved: Emails

SCR-Tech LLC v. Evonik Energy Servs. LLC, No. 08 CVS 16632 (N.C. Super Ct. Dec. 31, 2014)

Dec 01 2014

Key Insight: Where Plaintiff failed to ensure the preservation of information underlying a highly relevant report regarding the examination of certain Defendants? computers over which the court determined it had ?de facto control? (the underlying information, including copies of the images were in the possession of the third party investigator), the court indicated it was not necessary to make an express finding regarding when litigation was contemplated and reasoned that based on the circumstances, Defendants were ?entitled to the inference? that the information was negligently lost during a time when Plaintiff had the duty to preserve it. Thus, the court found Defendants had presented sufficient evidence of spoliation to trigger Plaintiff?s obligation to rebut it and that Plaintiff had not. As a sanction, the court ordered a permissive adverse inference. Regarding Plaintiff?s request to compel Defendant?s restoration of backup tapes, the court identified the state?s relevant three-part test and ordered that if Plaintiff wanted restoration, it would be required to pay half o f the estimated costs up front, with further allocation to occur following analysis of the results of the search.

Electronic Data Involved: ESI, backup tapes

In re Bridgepoint Educ., Inc., No. 12cv1737 JM (JLB), 2014 WL 3867495 (S.D. Cal. Aug. 6, 2014)

Dec 01 2014

Key Insight: Plaintiff sought to expand the scope of defendants? review and argued that defendants? alleged cost and burden would be lower than represented because defendants based their representations on manual review, rather than predictive coding. Defendants responded that manual review was still necessary where the predictive coding tool merely indicated a probability that a document was relevant and was not ?foolproof? – thus requiring the review. Relying on Rule 26(b)(2)(C), the court concluded that the additional discovery would be unduly burdensome and declined to grant Plaintiff?s request. The court also addressed Plaintiff?s request to require the defendants to run documents already produced through the predictive coding process. The court declined, reasoning that it had previously approved defendants? method of ?using linear screening with the aid of search terms? but, where defendant was willing to run additional terms, directed the parties to meet to discuss such terms.

Electronic Data Involved: ESI, email

Life Plans Inc. v. Security Life of Denver Ins. Co., No. 11 C 8449, 2014 WL 2879881 (N.D. Ill. June 25, 2014)

Dec 01 2014

Key Insight: Court denied request for costs of ?preparing electronic data to be converted to TIFF format? including ?data loading, data processing, and de-duplication and culling?; regarding OCR costs, the court acknowledged that there is ?less uniformity? about the issue of recovery and awarded costs for converting ESI into a ?readable format? (TIFF Conversion) – the equivalent of ?making copies? under 1920(4) – but denied costs for making that document searchable (OCR), noting that the requesting party had not ?shown why OCR was necessary to the production?

Electronic Data Involved: ESI Taxable costs

Black Diamond Mining Co. v. Genser, No. 12-125-ART, 2014 WL 3611329 (E.D. Ky. July 22, 2014)

Dec 01 2014

Key Insight: Court addressed motion for sanctions and found that accused spoliators had acted intentionally and/or negligently, but not in bad faith; court found that sanctions were ?unwarranted? for the negligent loss of certain email attachments because of defendant?s failure to ?access documents in an archive while gathering the original emails?- even despite finding that defendant acted with a ?culpable state of mind? – where plaintiff failed to produce any evidence of the attachments? relevance (court noted that defendant did not ?actively delete the attachments? but rather its agents ?forgot to take steps to preserve the documents before they were deleted from the archive?); for individual actors? negligent and intentional failures to preserve ESI and hard copy documents, the court found that the ?test of relevance [was] satisfied? and imposed a permissive adverse inference, but declined to order reimbursement of the Trustee?s fees or the costs of bringing the motion

Electronic Data Involved: Email attachments, ESI, hard copy

Archive - December 1, 2014