December 1, 2014 – Page 24 – Electronic Discovery Law

Shlian v. Shoppers Food Warehouse Corp., No. BPG-13-954, 2014 WL 1320102 (D. Md. Mar. 31, 2014)

Dec 01 2014

Key Insight: Spoliation sanction of a negative inference jury instruction based on defendant?s failure to preserve CCTV tape that recorded plaintiff?s fall was not warranted, since defendant had no duty to preserve the tape because it had no reason to anticipate litigation, and defendant lacked the requisite mental state as the incident footage was taped over in the normal course of business and not through an intentional act

Nature of Case: Slip and fall personal injury

Electronic Data Involved: Closed-circuit TV tape

Safety Today, Inc. v. Roy, No. 2:12-cv-510, 2014 WL 1049962 (S.D. Ohio Mar. 17, 2014)

Dec 01 2014

Key Insight: Magistrate judge denied plaintiff’s motion for monetary sanctions based on defendants’ alleged disobedience of discovery orders, which plaintiff asserted made its imaging of certain electronic devices more expensive than necessary, since plaintiff did not submit any proof that piecemeal production of devices for imaging caused it additional vendor expense and record was too sparse to find a violation of the express terms of the orders

Nature of Case: Misappropriation of confidential business information, unfair competition

Electronic Data Involved: Hard drives, servers and smart phones

Luellen v. Hodge, No. 11-CV-6144P, 2014 WL 1315317 (W.D.N.Y. Mar. 28, 2014)

Dec 01 2014

Key Insight: Although severe sanctions were not warranted where plaintiff did not establish bad faith or egregious gross negligence by defendant, or that he had been prejudiced by the loss of bank account records, lesser monetary sanctions to cover fees and costs of motion were appropriate given that defendant was negligent in failing to preserve the records

Nature of Case: RICO and related state law claims

Electronic Data Involved: Bank records

Cusato v. Greenberg Traurig, LLP, No. B242696, 2014 WL 1349493 (Cal. Ct. App. Apr. 7, 2014) (unpublished)

Dec 01 2014

Key Insight: Terminating sanctions dismissing cross-complaint deemed proper where cross-complainants used “File Shredder” to delete gigabytes of data from their computers in violation of orders requiring cross-complainants to preserve computer data and to turn over their computers to computer expert; however, trial court instructed to reconsider monetary sanctions imposed against cross-complainants given that computer expert hired by plaintiff began its forensic examination of the computer media months before it was authorized to do so, in violation of the court’s orders

Nature of Case: LLC members asserted claims and cross-claims after failed business venture

Electronic Data Involved: Hard drives of individual cross-claimants

Thompson, I.G., LLC v. Edgetech I.G., Inc., No. 11-12839 (E.D. Mich. Feb 25, 2014)

Dec 01 2014

Key Insight: Noting the limited application of 28 U.S.C. ?1920(4), the court declined to allow recovery of electronic discovery costs for ?forensic consulting and collection,? ?early case assessment,? and ??electronic discovery processing and hosting, data collection, imaging,? and the like? because they were ?not associated with the copying of digital materials?

Nature of Case: Contract dispute

Electronic Data Involved: taxable costs for electronic discovery

Lozoya v. Allphase Landscape Constr., Inc., No. 12-cv-1048-JLK, 2014 WL 222326 (D. Colo. Jan. 21, 2014)

Dec 01 2014

Key Insight: Court ordered production of ESI from plaintiff?s girlfriend?s computer upon finding that the information, including when she searched for an attorney for the plaintiff and the search terms she employed, was relevant to the litigation and ordered the production of plaintiff?s ESI, despite his claims that his computers were ?broken? absent factual support for the contention that the data was not accessible; court further ordered production of all relevant ?phone ESI? in plaintiff?s possession

Nature of Case: Employment litigation (wage and hour)

Electronic Data Involved: ESI on plaintiff’s computers and on third party’s computer, “Phone ESI”

Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950(AT)(JCF), 2014 WL 716521 (S.D.N.Y. Feb. 18, 2014)

Dec 01 2014

Key Insight: Court denied a motion to compel defendants to produce all documents (including those determined to be not responsive) identified by ?a computerized search tool that utilized a series of search terms agreed to by the parties? reasoning that the parties did not agree to such production, that the agreed upon protocol did not ?override the discovery demands and responses? (including defendants’ objection to the scope of certain requests) and that it was ?too late in the day for the plaintiffs to contest the scope defined by the defendants? objections, which were served in January 2011?

Nature of Case: Class action employment discrimination

Electronic Data Involved: All ESI identified by search terms

Castillon v. Corrections Corp. of Am., No. 1:12-cv-005590EJL, 2014 WL 517505 (D. Idaho Feb. 7, 2014)

Dec 01 2014

Key Insight: Where defendant produced data from timekeeping system in searchable .PDF format and provided attestation from the vice president of technology and chief information officer that that .PDF was the ?only, built-in, reasonably accessible data format? and that producing in the requested format would require Defendant to undertake the ?lengthy and daunting? task of writing a script and where Plaintiffs did not specify the format of production in their request, the court declined to compel re-production of the at-issue data, but noted that if Plaintiffs were willing to pay for the expense of writing a script, ?they may approach Defendant with such a request.?

Nature of Case: Prisoners’ civil rights

Electronic Data Involved: Data from timekeeping system

In re Actos (Pioglitazone) Prods. Liab. Litig., MDL No. 6:11-md-2299, 2014 WL 355995 (W.D. La. Jan. 30, 2014)

Dec 01 2014

Key Insight: Despite defendants? claims that litigation regarding claims of bladder cancer were not reasonably foreseeable until 2011, and thus the preservation obligation did not attach as to evidence related to those claims, the court found that the duty to preserve began in 2002, when defendants disseminated a broad and general litigation hold requiring the preservation of documents and ESI which ?discuss, mention, or relate to Actos? and that documents destroyed after that (including the files of 46 employees) were spoliated; court ordered that the jury would hear about the destruction and be instructed by the court on how to proceed (instruction would be crafted after hearing all the evidence)

Nature of Case: Products Liability

Electronic Data Involved: ESI (46 “custodial files”)

Jones v. Union Pac. R.R. Co., No. 12 C 771, 2014 WL 37843 (N.D. Ill. Jan. 6, 2014)

Dec 01 2014

Key Insight: Videotape of collision filmed from train was admissible, despite inability of defendant to produce the hard drive from which it originally was copied, where both eyewitness testimony which corroborated the footage and chain of custody evidence established its authenticity; no spoliation sanctions for reuse of hard drive where such reuse was a ?routine practice? for defendant and because plaintiff could not establish prejudice resulting from the loss of the hard drive (the video was available)

Nature of Case: Personal injury (train/car collision)

Electronic Data Involved: Original hard drive containing video footage

Archive - December 1, 2014