December 1, 2014 – Page 20 – Electronic Discovery Law

Freedman v. Weatherford Int?l, Ltd., No. 12 Civ. 2121(LAK)(JCF), 2014 WL 3767034 (S.D.N.Y. July 25, 2014)

Dec 01 2014

Key Insight: Court considered plaintiffs? motion to compel production of ?certain reports comparing the results of the defendants document search and production in this case with? the search terms proposed by the plaintiff and with searches and productions related to prior investigations but denied the motion upon defendant?s showing that preparing only a sample report took ?several weeks, over 250 hours of vendor time, and 750 hours of computer processing time? and where plaintiffs offered ?no adequate factual basis for their belief that the current production [was] deficient? in support of what amounted to a request for ?discovery on discovery?; court acknowledged, however, that ?there are circumstances where such collateral discovery is warranted?

Nature of Case: False and misleading statements in violation of securities laws

Electronic Data Involved: ESI

Quintero Cmty. Assoc. v. Hillcrest Bank, No. 04-11-CV-00893-DGK, 2014 WL 1764791 (W.D. Mo. May 2, 2014)

Dec 01 2014

Key Insight: Where defendants produced ESI that had previously been provided to the FDIC in the course of its investigation but could not provide the passwords to access the information and where the requesting party was told by “several companies” that the documents would be ?nearly impossible? to unencrypt, the court declined to impose spoliation sanctions reasoning that ?a presumption of spoliation only arises when there is evidence of ?intentional destruction indicating a desire to suppress the truth?? and that the requesting party had not shown intentional destruction (?QCA has not provided the court with sufficient evidence that Defendants, or their attorneys, placed the passwords on the discs, let alone evidence that these actors did so to intentionally block QCA’s access.?)

Nature of Case: Claims arising from failed property investment

Electronic Data Involved: Password protected ESI

Smith v. Hillshire Brands, No. 13-2605-CM, 2014 WL 2804188 (D. Kan. June 20, 2014)

Dec 01 2014

Key Insight: Court ordered plaintiff to respond to request for social networking documents that directly referenced or mentioned defendant or the matters raised in plaintiff?s complaint; court found request for production of complete copies of plaintiff?s social networking accounts to be overly broad and indicated its intention to ?follow what appears to be the intermediate course? i.e., allowing defendant ?to discover not the contents of plaintiff’s entire social networking activity, but any content that reveals plaintiff’s emotions or mental state, or content that refers to events that could reasonably be expected to produce in plaintiff a significant emotion or mental state? and ordered plaintiff to produce all such documents

Nature of Case: Violations of Title VII, Family Medical Leave Act

Electronic Data Involved: Contents of social networking accounts (Facebook, MySpace, Twitter)

Dixon v. Experian Info. Solutions, Inc., No. 2:13-CV-227-PPS-PRC, 2014 WL 2881589 (N.D. Ind. June 25, 2014)

Dec 01 2014

Key Insight: Where Plaintiff requested production of ESI in native format and defendant failed to object (thus waiving any objection) but produced the requested data as scanned .pdfs and argued that the native format would contain the same information but would be more difficult to understand (because of shortcut codes, etc.), the court reasoned that plaintiff nevertheless requested native format to no objection and ordered that the native format be produced

Nature of Case: Fair Credit Reporting Act

Electronic Data Involved: ESI, database

Cheng v. Lake Forest Assocs., No. CBD-13-1365, 2014 WL 2964082 (D. Md. June 30, 2014)

Dec 01 2014

Key Insight: Court reasoned that ?[c]aselaw demonstrates that a contractual relationship between two parties, which privies one party to access documents or information physically possessed by the other, can be sufficient to establish the requisite control necessary to compel production of a discovery-related document[]? and found that defendant had such control over video surveillance footage in the possession of a third party and granted Plaintiff?s motion to compel

Nature of Case: Personal injury (Slip & fall)

Electronic Data Involved: video surveillance

Duluc v. AC & L Good Corp., 990 N.Y.S.2d 24 (N.Y. App. Div. 2014)

Dec 01 2014

Key Insight: Court affirmed denial of motion for sanctions where defendant preserved 84 seconds of surveillance footage in response a request to preserve footage or photos that ?depict the subject slip and fall accident? and where the remainder of the footage had been automatically overwritten before plaintiff requested broader preservation; court reasoned that: ?While it may have been a better practice to preserve any footage of the area from any camera for a period before and after the accident, that was not the request made to defendants, and it would unfair to defendant to penalize it for not anticipating plaintiff’s additional requests.?

Nature of Case: Personal injury / slip and fall

Electronic Data Involved: Video surveillance footage

Clemons v. Corrections Corp. of Amer., Inc., No. 1:11-CV-339, 1:11-cv-340, 2014 WL 3507299 (E.D. Tenn. July 14, 2014)

Dec 01 2014

Key Insight: Where defendant attempted to preserve relevant video by assigning a part time maintenance/IT employee to copy the relevant portion but failed to discover that the wrong portion was copied before the tape was overwritten, the Magistrate Judge found that the failure to preserve the relevant footage was grossly negligent and recommended a mandatory adverse inference, that defendant be prohibited from offering evidence or testimony from witnesses who viewed the unavailable footage and that plaintiff be awarded reasonable attorney?s fees; the district court adopted the recommendations

Nature of Case: Claims of deliberate indifference to prisoner’s medical needs

Electronic Data Involved: Video surveillance footage

Hawley v. Mphasis Corp., No. 12 Civ. 592(DAB)(JLC), 2014 WL 3610946 (S.D.N.Y. July 22, 2014)

Dec 01 2014

Key Insight: Court declined to impose sanctions for spoliation of contents of Plaintiff?s work laptop (by deleting the data and reissuing the computer to another employee) where despite the court?s finding that defendant had been grossly negligent in its failure to preserve, a presumption of relevance was not warranted and plaintiff failed to demonstrate that the lost documents would have supported his claim; regarding the destruction of plaintiff?s supervisor?s laptop (who had resigned), the court ordered an adverse inference where the court found that the failure to preserve was grossly negligent and where defendant?s conduct was sufficiently egregious to warrant a finding that the evidence was unfavorable to it (notably, the court indicated it ?[did] not matter? who had wiped the hard drive because defendant should have taken steps to preserve the data well in advance of the supervisor?s resignation); court ordered an adverse inference for defendant?s failure to produce certain evidence

Nature of Case: Employment discrimination

Electronic Data Involved: Contents of plaintiff’s laptop and supervisor’s laptop

Lopez v. Cate, No. 1:10-cv-01773-AWI-SKO, 2014 WL 3615480 (E.D. Cal. July 21, 2014)

Dec 01 2014

Key Insight: Court denied motion for preliminary injunction and preservation order, reasoning as to the request for a preservation order that defendants had issued a litigation hold letter and that plaintiff had not shown that such an order was needed due to ?any actual risk that specific evidence will be lost or destroyed during the pendency of this action?

Nature of Case: Civil rights action (pro se prisoner)

Electronic Data Involved: [F]iles and records, including e-files and intact meta data

Mazzei v. Money Store, No. 01cv5694 (JGK)(RLE), 2014 WL 3610894 (S.D.N.Y. July 21, 2014)

Dec 01 2014

Key Insight: Defendant failed to preserve data in its control (an issue it hotly contested) when it sold certain assets of its wholly owned subsidiary, including the database/?system? that contained the at issue data; court found failure to preserve was willful and in bad faith and that plaintiff had been prejudiced by the loss; where a non-party who works with defendant indicated that it had information from the at issue system but that the information was not ?readable? and that it would be expensive to extract and convert it, the court ordered defendant to bear the cost of determining whether the system was searchable and to pay plaintiff his attorneys fees for the motion for sanctions

Nature of Case: Class action re: violation of Truth in Lending Act

Electronic Data Involved: Database

Archive - December 1, 2014