December 1, 2014 – Page 21 – Electronic Discovery Law

Cormack v. United States, No. 13-232C, 2014 WL 3555255 (Fed. Cl. July 18, 2014)

Dec 01 2014

Key Insight: Court found no waiver resulting from the production of a privileged email (work product) in light of the scope of discovery (more than one million pages produced), defendant?s use of ?advanced software to screen for privilege,? and the ?numerous steps? intended to protect privilege as outlined for the court and because counsel sought the email?s return ?within hours? of receiving a filing with the email attached; defendant was also found to be in control of documents in the possession of a ?wholly owned but indirect French subsidiary? in light of the companies? collaboration on the at-issue software as illustrated by the companies? representations to the potential client regarding their collaboration, agreements between the companies, and the close working relationship between the two

Nature of Case: Patent infringement

Electronic Data Involved: Email, documents in possession of non-party

Toppan Photomasks, Inc. v. Park, No. 13-cv-03323-MMC (JCS), 2014 WL 2567914 (N.D. Cal. May 29, 2014)

Dec 01 2014

Key Insight: Where defendant?s duty to preserve arose upon threat of litigation and where he was reminded of the obligation in correspondence with opposing counsel and then ordered by the court to preserve, the court found that the level of culpability rose with each indication and thus found that the defendant had failed to preserve ESI in bad faith but, absent evidence of the level of resulting prejudice (attempts to recover the deleted data had not yet been undertaken), declined to impose a an adverse inference but ordered monetary sanctions

Nature of Case: Trade secret, breach of contract

Electronic Data Involved: ESI on multiple devices

Woodlands Dev. LLC v. Regions Bank, 141 So.3d 357 (La. Ct. App. 2014)

Dec 01 2014

Key Insight: Trial court abused its discretion in dismissing Defendant?s case where there was no evidence that Defendant?s document retention policy (which gave employees discretion to determine which emails should be saved and deleted the remainder after 90days) was operated in bad faith and where the potentially relevant emails were already deleted by the time suit was filed, thus lessening (if not eliminating) the impact of the delay in issuing a litigation hold

Nature of Case: Declaratory judgment action brought by promissory note maker and guarantors against note holder

Electronic Data Involved: Email

Volcan Group Inc. v. Omnipoint Commc?ns, Inc., 552 Fed. Appx. 644 (9th Cir. Jan. 9, 2014)

Dec 01 2014

Key Insight: District court did not abuse discretion in dismissal of Plaintiff?s breach of contract action where Plaintiff failed to preserve (i.e., spoliated) relevant materials and where the record also suggested that certain evidence had been falsified

Nature of Case: Breach of contract, promissory estoppel, unjust enrichment

Electronic Data Involved: ESI

Koninklijke Philips N.V. v. Hunt Control Sys., No. 11-3684 DMC, 2014 WL 1494517 (D.N.J. Apr. 16, 2014)

Dec 01 2014

Key Insight: Where Defendant sought to take a 30(b)(6) deposition to inquire regarding whether Plaintiff was ?using the appropriate search tools for ESI discovery,? based on Defendant?s expert?s determination that Plaintiff had ?some of most (sic) sophisticated and comprehensive state-of-the-art document search and location tools? and the assertion that ?Philips refuses to use these tools? and where Plaintiff indicated that it had always used ?a custodian-based approach to collecting ESI[ ],? and that it outsourced its collection to Microsoft Online Services and did not have a contract that permitted the type of searching and collecting suggested by the defendant, the court found that Plaintiff had adequately established the reasonableness of its approach and also reasoned that while the deposition itself would not be a burden, it would open the door to potentially burdensome additional discovery that was unlikely to be productive and thus was not warranted

Nature of Case: Appeal of decision of Trademark Trial and Appeal Board

Electronic Data Involved: ESI

EEOC v. SVT, LLC, No. 2:13-CV-245-RLM-PRC, 2014 WL 2177796 (N.D. Ind. May 22, 2014)

Dec 01 2014

Key Insight: Where defendant utilized third party?s hiring program to allow applicants to apply online, etc. and had limited access to the system?s data (i.e., limitations on the format and content of reports from the system), the court found that the data that could be regularly accessed by the defendant per its contract with the third party was accessible and subject to production and that data housed by the third party and not readily available to the defendant was ?not reasonably accessible . . . because of both undue burden and cost? and ordered that if the EEOC wanted the inaccessible data, it would have to pay for it

Nature of Case: Employment litigation

Electronic Data Involved: ESI (Kronos)

Knickerbocker v. Corinthian Colleges, No C12-1142JLR, 2014 WL 1356205 (W.D. Wash. Apr. 7, 2014)

Dec 01 2014

Key Insight: Court found that Defendant and its counsels? ?lackluster search for documents, failure to implement a litigation hold, deletion of evidence, refusal to cooperation with Plaintiffs in the discovery process (particularly as evidenced by its withholding of information regarding both the backup tapes and its interpretation of the parties? Stipulated Order), reliance on a recklessly false declaration, shifting litigation positions, and inaccurate representations to the court constitute bad faith or conduct tantamount to bad faith? and ordered payment of Plaintiffs? attorneys fees ?incurred due to Corinthian?s bad faith discovery practices? and also ordered fines against Defendant ($25,000) and its counsel ($10,000)

Nature of Case: Employment Litigation (discrimination, hostile work environment)

Electronic Data Involved: ESI, including email, ESI on backup tapes

Miller v. Fed. Express Corp., No. 49A02-1307-PL-619, 2014 WL 1318698 (Ind. Ct. App. Apr. 3, 2014)

Dec 01 2014

Key Insight: Although there may have remained a genuine issue of material fact concerning spoliation based on employer’s failure to preserve contents of employee?s computer or make a complete archival backup of the contents when the computer was replaced, summary judgment in favor of the employers was properly granted since the employers were immune from the claims under Section 230(c) of the federal Communications Decency Act as providers of an interactive computer service (i.e., company network and access to internet)

Nature of Case: Individual alleged defamation and intentional infliction of emotional distress against employers of authors of anonymous comments posted regarding online article

Electronic Data Involved: Comments posted regarding online article; contents of computer used by author of comments

Mpala v. City of New Haven, No. 3:12-CV-01580 (VLB), 2014 WL 883892 (D. Conn. Mar. 6, 2014)

Dec 01 2014

Key Insight: Plaintiff’s motion for sanctions based on spoliation of evidence denied, where two surveillance videos that plaintiff claimed had been destroyed never actually existed, and relevance of the third video that may have existed was “tenuous at best”

Nature of Case: Pro se plaintiff alleged constitutional violations stemming from his suspension from the New Haven Public Library

Electronic Data Involved: Surveillance videos

Cognate Bioservices, Inc. v. Smith, Civil No. WDQ-13-1797, 2014 WL 988857 (D. Md. Mar. 12, 2014)

Dec 01 2014

Key Insight: Court denied motion for an order to preserve evidence, finding that defendant had complied with his duty to preserve — he gave opposing party notice that the laptop he used in connection with his employment at competitor would be returned after his resignation, provided the name and address of the person in possession of the laptop, and made efforts to ensure that relevant information on the laptop was not deleted

Nature of Case: Employer sued former employee and his new consulting firm for violations of Computer Fraud and Abuse Act, misappropriations of products, misappropriations of trade secrets

Electronic Data Involved: Laptop, computer passwords to former employer’s virtual private network and server computers

Archive - December 1, 2014