December 1, 2014 – Page 13 – Electronic Discovery Law

Vicente v. City of Prescott, No. CV-11-08204-PCT-DGC, 2014 WL 3939277 (D. Ariz. Aug. 13, 2014)

Dec 01 2014

Key Insight: Where city notified key personnel to preserve relevant evidence but never instructed its IT department to suspend automatic procedure for eliminating deleted emails after 30 days or to assist key individuals in collecting and preserving relevant emails, city?s preservation efforts were “clearly deficient? but no sanctions were warranted as plaintiffs identified only one email that ultimately was lost as a result of defendants? inadequate preservation actions; court further granted plaintiffs? motion to compel production of unredacted versions of two litigation hold letters sent by the city to employees, and ruled on various other dispositive and discovery motions

Nature of Case: First Amendment, retaliation, defamation and related state law claims

Electronic Data Involved: Email

Sentis Group, Inc. v. Shell Oil Co., 763 F.3d 919 (8th Cir. 2014)

Dec 01 2014

Key Insight: Eight Circuit found no abuse of discretion where, for a second time, after remand, trial court concluded that dismissal of complaint was appropriate sanction for plaintiff?s ?consistently evasive and deceptive conduct,? as the record was now adequately set forth and supported the trial court?s judgment regarding the questions of bad faith, plaintiffs? control over accountant witness who disappeared, and the intentional (versus negligent) nature of the ongoing and systematic suppression of evidence by plaintiffs

Nature of Case: Contract and fraud claims

Electronic Data Involved: Financial records maintained on plaintiffs’ accountant’s computer; computers

Oleksy v. Gen. Elec. Co., No. 6 C 1245, 2014 WL 3820352 (N.D. Ill. Aug. 1, 2014)

Dec 01 2014

Key Insight: Where, at time complaint was filed, defendant should have reasonably foreseen that files created by its accused process would be material to the parties’ claims, yet defendant continued to overwrite its files per its standard practice instead of saving the files either manually or automatically, court denied plaintiff’s request for adverse inference instruction but ordered defendant to reconstitute or recreate three complete sequences of old computer code at its own cost

Nature of Case: Patent infringement

Electronic Data Involved: Computer code

Am. Health, Inc. v. Chevere, No. 12-1678 (PG), 2014 WL 3955906 (PG), 2014 WL 3955906 (D.P.R. Aug. 14, 2014)

Dec 01 2014

Key Insight: Court found that entry of default was too harsh a punishment and that lesser sanction such as an adverse inference instruction was available and adequate to temper prejudice to plaintiffs resulting from individual defendant?s admitted deletion of e-mails containing plaintiff?s confidential information; court further ordered defendants to pay plaintiffs $2,500 for attorneys? fees no later than August 22, 2014

Nature of Case: Claims under the Computer Fraud and Abuse Act, Stored Wire and Electronic Communications and Transactional Records Access Act, and the Wire and Electronic Communications and Interception of Oral Communications Act

Electronic Data Involved: Email attachments

United States v. Town of Colorado City, No. 3:12-cv-8123-HRH, 2014 WL 3724232 (D. Ariz. July 28, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for spoliation sanctions as plaintiff offered only “some slight evidence” that city acted with a culpable state of mind, most of the evidence did not support a conclusion that the city intentionally destroyed evidence, and any prejudice that plaintiff would suffer from not having the two dispatch calls was minimal

Nature of Case: Discrimination

Electronic Data Involved: Recordings of dispatch calls, police reports, officer meeting minutes

Dataflow, Inc. v. Peerless Ins. Co., No. 3:11-cv-1127 (LEK/DEP), 2014 WL 148685 (N.D.N.Y. Jan. 13, 2014)

Dec 01 2014

Key Insight: District court adopted magistrate judge?s recommendation (at 2013 WL 6992130) that plaintiff?s motion for adverse inference instruction be granted as sanction for defendant?s grossly negligent failure to preserve internal emails in violation of its own retention policy; court deferred ruling on the language of the jury instruction until the filing of pretrial memoranda so as to consider proposed jury instructions as a whole

Nature of Case: Insurance coverage dispute

Electronic Data Involved: Internal emails

Farstone Tech., Inc. v. Apple, Inc., No. 8-13-cv-01537-ODW(JEMx), 2014 WL 2865786 (C.D. Cal. June 24, 2014)

Dec 01 2014

Key Insight: Court adopted plaintiff’s source-code printing provision in its entirety, rejecting as too restrictive defendant’s proposed limitations that parties may print only that source code ?necessary? to prepare court filings and pleadings, noting that the “reasonably necessary” standard had solid foundation in district?s model protective order, and rejecting as arbitrary defendant?s proposed numerical restrictions: 30-page threshold beyond which the source code printing would be presumed to be excessive, and a total cap on source code printing at the greater of 250 pages or 10 percent of the source code; court also adopted in full plaintiff?s proposed language regarding the use of source code for depositions

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Commonwealth v. Gelfgatt, 11 N.E.3d 605 (Mass. 2014)

Dec 01 2014

Key Insight: Where the facts that would be conveyed by a criminal defendant through his act of decryption of computer files — i.e., his ownership and control of the computers and their contents, knowledge of the act of encryption, and knowledge of the encryption key — are already known to the government and are thus a “foregone conclusion,” compelling the defendant to enter his encryption key does not violate the defendant’s rights under the Fifth Amendment because the defendant is only telling the government what it already knows; accordingly, court reversed trial judge’s denial of government’s motion to compel decryption and remanded the case to the trial court for further proceedings

Nature of Case: Criminal case regarding mortgage fraud scheme

Electronic Data Involved: ESI; encryption key

West Plains, LLC v. Retzlaff Grain Co., No. 8:13CV47, 2014 WL 2515198 (D. Neb. June 3, 2014)

Dec 01 2014

Key Insight: Where plaintiff produced thousands of documents on disc and in hard copy, and divided some of the electronic documents into files on the disc but otherwise provided no indices to guide defendants to responsive materials, court found plaintiff?s responses insufficient and ordered plaintiff to produce index or other tool to guide defendants to the documents responsive to each individual request for production

Nature of Case: Company sued competitor, and former employees who had resigned to join competitor, for misappropriation of confidential business information, tortious interference with business relationships, and related claims

Electronic Data Involved: ESI produced on disc

Apparent, Inc. v. Ai-Daiwa, Ltd., No. C 13-04156 VC (LB), 2014 WL 3738348 (N.D. Cal. July 28, 2014)

Dec 01 2014

Key Insight: Where defendant raised seven problems with plaintiff’s ESI production and sought an order compelling plaintiff to hire a qualified e-discovery vendor, court denied the request because plaintiff was addressing the problems and the circumstances of the case did not support “the potentially expensive outcome of a private vendor” given the short relevant time period and limited universe of documents; court further remarked: ?That being said, generally documents should be produced electronically (not in hard copy), and native file production (or at least processed ESI that contains relevant metadata) is better than paper production.?

Nature of Case: Breach of contract, product defect

Electronic Data Involved: ESI

Archive - December 1, 2014