December 1, 2014 – Page 16 – Electronic Discovery Law

Donati v. State, No. 1538, 2014 WL 351964 (Md. Ct. Spec. App. Jan. 29, 2014)

Dec 01 2014

Key Insight: Court evaluated various emails and concluded that trial court did not err when it admitted them into evidence as they were properly authenticated by direct or circumstantial evidence; nor did court err when it accepted detective as an expert in digital forensic examination

Nature of Case: Criminal case in which defendant was convicted of electronic mail harassment and other offenses

Electronic Data Involved: Email

U.S. v. Capitol Supply, Inc., No. 13-mc-0373 (BAH), 2014 WL 1046006 (D.D.C. Mar. 19, 2014)

Dec 01 2014

Key Insight: Where government had requested production in specific electronic formats (Database, Access or Excel) but company produced materials in PDF format that lacked requested detail and was not searchable across multiple documents, court found production insufficient and noted that the fact that company’s databases lacked certain functionality did not relieve company from responding to subpoenas with responsive information in usable, searchable format and directed company to produce responsive information “in a format that is reasonably usable, which includes searchable, just as its databases are presumably designed to respond to search queries”

Nature of Case: Investigation by Office of the Inspector General re whether company violated the False Claims Act; government petitioned for summary enforcement of OIG supboenas to Capitol Supply, Inc.

Electronic Data Involved: Sales data, country-of-origin information

Chewning v. Commonwealth of Virginia, No. 2204-12-4, 2014 WL 931053 (Va. Ct. App. Mar. 11, 2014) (unpublished)

Dec 01 2014

Key Insight: Trial court did not err in admitting cell phone records or the content of text messages exchanged between Chewning and girlfriend (who pleaded guilty to murdering her mother) on the day of murder, as records were admissible as computer-generated records not requiring hearsay analysis, and, alternatively, as hearsay admissible under business records exception, text messages were admissible under exception for party and adoptive admissions, and authentication of records and texts was achieved through testimony of Verizon Wireless records custodian; further, court did not err in permitting prosecutor and detective to read aloud certain portions of texts during trial or in permitting the limited interpretation of abbreviations and misspellings provided by the readers

Nature of Case: Criminal

Electronic Data Involved: Cell phone records, text messages

Siani v. State Univ. of New York at Farmingdale, No. 2:09-CV-0407 (JFB) (WDW), 2014 WL 1260718 (E.D.N.Y. Mar. 28, 2014)

Dec 01 2014

Key Insight: Court denied motion for spoliation sanctions based on defendant campus counsel?s deletion of emails, because defendants produced emails from other custodians who did not delete them, and plaintiff failed to show that other deleted emails were relevant to the action and favorable to him; counsel?s deletion of email was not done in bad faith, but was instead part of his normal practice, he placed a litigation hold on the actual decisionmakers but did not include himself because he had a limited, non-decisive role, and, as an attorney, considered his own communications to be privileged and work product and any email not covered by these doctrines would be preserved by the parties subject to the litigation hold, making his own preservation redundant; court further denied plaintiff?s motion to compel production of emails withheld on the basis of privilege after conducting an in camera review and finding defendants? objections to be well-taken

Nature of Case: Age Discrimination in Employment Act claims

Electronic Data Involved: Email

JPMorgan Chase Bank, N.A., v. East-West Logistics, LLC, No. 1-12-1111, 2014 WL 1292905 (Ill. App. Ct. Mar. 31, 2014)

Dec 01 2014

Key Insight: Trial court did not abuse its discretion when it ordered defendant to pay $3,026 of plaintiff’s requested $18,771 electronic discovery costs, as court had discretion under court rule to issue a protective order as justice required, had ordered the parties to confer on the scope of production and reserved the allocation of costs, and had properly balanced defendant’s need for the discovery material against the expense of the production incurred by plaintiff

Nature of Case: Action to collect amounts due under credit agreement and enforce guaranty

Electronic Data Involved: Electronically stored documents

EEOC v. Suntrust Bank, No. 8:12-cv-1325-T-33MAP, 2014 WL 1364982 (M.D. Fla. Apr. 7, 2014)

Dec 01 2014

Key Insight: Court denied without prejudice EEOC?s motion for an adverse inference jury instruction, indicating it may consider this ruling at a later date if presented with further evidence tending to show bad faith conduct by SunTrust; court would permit the EEOC to introduce evidence at trial concerning SunTrust?s video surveillance system, SunTrust?s policies relating to use and preservation of video surveillance footage, and SunTrust?s failure to preserve video footage at issue, where Suntrust isolated and carefully reviewed tapes to investigate (and partly validate) one plaintiff?s claims, but then put that same footage back into circulation to be taped over and did not retain or preserve the footage

Nature of Case: Sexual harassment

Electronic Data Involved: Video surveillance footage from bank’s security cameras

Kawamura v. Boyd Gaming Corp., No. 2:13-cv-00203-JCM-GWF, 2014 WL 3953179 (D. Nev. Aug. 13, 2014)

Dec 01 2014

Key Insight: Considering motion to compel production of evidence of incidents similar to the attack on plaintiff, which was the underlying subject of the litigation, the court granted plaintiff?s motion to compel, in part, and reasoned as to defendant?s assertions that the database containing the requested information could not be easily searched (i.e., that the request was overly burdensome)that ?the fact that a corporation has an unwieldy record keeping system which requires it to incur the heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.?

Nature of Case: Complaint for damages against casino in which plaintiff was attached: premises liability

Electronic Data Involved: ESI from database

FDIC v. Baldini, No. 1:12-7050, 2014 WL 1302479 (S.D. W. Va. Mar. 28, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for protective order, rejecting plaintiff’s proposed protocol that would require defendants to supply search terms (which plaintiff would then apply to the ESI) and require defendants to pay ESI copying costs; court ordered plaintiff to fashion initial set of search terms and work with defendants to reach agreement on search terms to be used, and set out protocol to be followed by the parties for the production

Nature of Case: Breach of fiduciary duties, negligence

Electronic Data Involved: ESI

Sanofi-Aventis Deutschland GMBH v. Glenmark Pharm. Inc., USA, 748 F.3d 1354 (Fed. Cir. 2014)

Dec 01 2014

Key Insight: Concluding that trial court did not err in giving permissive adverse inference instruction where defendant failed to suspend its email retention policy (whereby all emails and related electronic documents were retained for only one month) at the point when patent infringement litigation became reasonably foreseeable, i.e., the earliest date asserted by defendant for work product protection in its privilege log, appellate court commented: “The destruction of documents in the course of preparation for litigation has no entitlement to judicial protection, and need not be concealed from the jury.”

Nature of Case: Patent infringement

Electronic Data Involved: Email

Metro. Life Ins. Co. v. Ogandzhanova, No. CV-12-00372-PHX-GMS, 2014 WL 2616523 (D. Ariz. June 12, 2014)

Dec 01 2014

Key Insight: Where defendant had testified regarding frequent use of computers but the two computers she produced after being ordered by the court to do so showed very little activity, court found that defendant had willfully failed to comply with court’s order to identify and provide the computers she used during the relevant time period; court further found that defendant failed to produce relevant documents within her control and applied five-factor test to impose sanctions in the form of a permissive adverse inference instruction and payment of plaintiff?s attorneys’ fees and expenses incurred in bringing the motion

Nature of Case: Disability insurance dispute

Electronic Data Involved: Hard drives, ESI

Archive - December 1, 2014