December 1, 2014 – Page 4 – Electronic Discovery Law

Savage v. City of Lewisburg, No. 1:10?0120, 2014 WL 6827329 (M.D. Tenn. Dec. 3, 2014 )

Dec 01 2014

Key Insight: District court said that where Defendant was under a duty to preserve audio recordings and should have taken steps to prevent their destruction; and where Defendant refused to produce payroll and promotion data ordered by the court; and where Defendant had not produced documents ordered by the court; Plaintiff would be permitted to argue adverse inferences to the jury and file an affidavit of reasonable costs and attorneys? fees in bringing its sanctions motion.

Nature of Case: Employment Discrimination

Electronic Data Involved: Audio recordings, payroll and promotion data, documents

Abdulahi v. Wal-Mart Stores E., L.P., 76 F. Supp. 3d 1393 (N.D. Ga. Dec. 2014)

Dec 01 2014

Key Insight: Where plaintiff was fired for failure to lock a gate?which he disputed?during the pendency of separate EEOC investigations into plaintiff?s charges of discrimination and where the at-issue manager claimed to have viewed footage confirming the gate was unlocked but failed to preserve it, the court determined that Defendant was under a duty to preserve (?due to an ongoing EEOC investigation during the applicable time period, Wal-Mart?s own investigation into the alleged employee misconduct including a review of the video footage, and litigation being reasonably foreseeable?), that plaintiff was prejudiced by the loss because neither the at-issue manager?s testimony or emails were equivalents for the video, and that plaintiff showed ?more than mere negligence? in the destruction, the court ordered an adverse inference creating a presumption that ?Wal-Mart?s stated reason for terminating Plaintiff was pretextual and that retaliation was the but-for cause of Plaintiff?s termination? and awarded attorney?s fees

Nature of Case: Employment litigation

Electronic Data Involved: Video surveillance footage

Del Gallo v. City of New York, 997 N.Y.S.2d 98 (Table) (N.Y. Sup. Ct.2014)

Dec 01 2014

Key Insight: Addressing request for discovery of Plaintiff?s social media contents, specifically LinkedIn, court indicated that ?[t]o warrant such discovery, ?defendants must establish a factual predicate for their request by identifying relevant information in plaintiff?s [social media] account — that is, information that contradicts or conflicts with plaintiff?s alleged restrictions, disabilities, and losses, and other claims?? and, although it acknowledged that Defendants could obtain information pertinent to Plaintiff?s communications with recruiters related to job offers and related inquiries, indicated that Defendants had not shown that they were entitled to Plaintiff?s communications with former colleagues about her condition or to the other materials on LinkedIn

Nature of Case: Wrongful death and personal injuries resulting from falling tree limb

Electronic Data Involved: Social Media Contents (e.g., LinkedIn)

Icon-IP Pty Ltd., v. Specialized Bicycle Components, Inc., No. 12-cv-03844-JST (MEJ), 2014 WL 6788182 (N.D. Cal. Dec. 2, 2014)

Dec 01 2014

Key Insight: Plaintiff sought to compel Defendant to produce additional documents relevant to their design infringement claims by searching Defendant?s emails and electronic design documents. Defendant argued that this comprehensive search of electronic design documents would be ?overly burdensome, oppressive, and not reasonably calculated to lead to discovery of admissible evidence,? and conducted a reasonable search responsive to Plaintiffs request, but did not explain why and how the comprehensive search would be burdensome. Defendant complied with a stipulation agreeing to specific email search terms and custodians, subject to objections which Plaintiff did not respond to. The court ordered that Plaintiff was entitled to additional discovery of electronic design documents because Defendant did not meet the burden of showing the request was unduly burdensome. However, since Defendant did comply with the stipulation, further email searches were not needed.

Nature of Case: Patent Litigation

Electronic Data Involved: ESI

State v. Francis, 455 S.W.3d 56 (Mo. Ct. App. 2014)

Dec 01 2014

Key Insight: Court reversed conviction and remanded for new trial based on error in admission of text messages found on Blackberry in Defendant?s possession at the time of his arrest where the State argued that ownership of the Blackberry could be inferred and failed to establish that at-issue text messages were authored by the defendant, which in turn, negated the state?s arguments for admitting the outgoing text messages as well: ?There was no evidence that Appellant owned the BlackBerry or, more importantly, authored the messages. The fact that Appellant possessed the phone at the time of arrest is insufficient by itself to establish that Appellant authored text messages sent hours or days earlier. Because the State failed to establish that the text messages were authored by Appellant, the outgoing messages were not admissible as admissions by a party opponent and, thus, the incoming messages were not admissible under any identified exception to the hearsay rule.?

Nature of Case: Drug conviction

Electronic Data Involved: Text messages from Blackberry

Yontz v. Dole Fresh Vegetables, Inc., No. 3:13-cv-066 2014 WL 5109741 (S.D.Ohio Oct.10, 2014)

Dec 01 2014

Key Insight: In this FMLA interference case, Defendant?s motion for summary judgment was denied, in part because the court found merit in Plaintiff?s spoliation claim. Defendant claimed there was no willful destruction of relevant email that was missing from their computer system. However, in deposition Defendant stated that ?there has not been any automatic deletion? from its system, and ?the only way that emails could have been deleted?would have been manually by an end user.? The Court found that to the extent email was missing a reasonable juror could find it was deleted by an employee. Additionally, the required element of a culpable state of mind was shown by Defendant?s failure to implement a litigation hold, which was a violation of their company policy. ?Where Dole?s own policies require retention, and there is testimony documents were not retained but manually deleted by the user, there is a genuine issue for the jury.?

Nature of Case: Employment Law

Electronic Data Involved: ESI

Spears v. First Am. eAppraiseit, No. 5-08-CV-00868-RMW, 2014 WL 6901808 (N.D. Cal. Dec. 8, 2014)

Dec 01 2014

Key Insight: Non-party JPMorgan Chase Bank moved for an order compelling Plaintiffs to reimburse Chase over $450,000 in costs for producing over 334,000 pages of documents. Chase sought reimbursement under FRCP 45(d)(2)(b)(ii); Plaintiffs argued Chase could not recover costs unless the production resulted from a court order. The Court found that a court order is not required to shift costs and that costs may be shifted under Rule 45(d)(2)(B)(ii) if the requesting party is on notice that the non-party will seek reimbursement of costs. The Court ultimately denied Chase?s motion, stating ?it would be unfair?to reimburse Chase for costs?where Chase failed to inform plaintiffs it would later seek reimbursement??

Nature of Case: RESPA class action

Electronic Data Involved: ESI

Dorchester Fin. Holdings Corp v. Banco BRJ S.A., 11-CV-1529 (KMW) 2014 WL 7051380 (S.D.N.Y. Dec. 15, 2014)

Dec 01 2014

Key Insight: Trial court found Plaintiff committed spoliation when a computer containing key documents was destroyed. Court imposed sanctions of precluding evidence derived from the computer from being presented at trial and ordered Plaintiff to pay Defendant?s attorney fees and costs. Upon review, Court upheld the spoliation ruling but imposed a mandatory adverse inference instead of the preclusion order. Court agreed that Plaintiff had a duty to preserve, was culpable in the destruction of the evidence, and the data that was destroyed was relevant to the Defendant?s claims. The court further elaborated that Plaintiff?s duty to preserve did not end when the computer allegedly crashed, and that Plaintiff should have made reasonable efforts to recover the data it contained. Saying that the spoliation prejudiced the defendant in a ?severe way? that can only be corrected by a ?substantial sanction,? the Court found that a mandatory adverse inference was the best way to repair the damage to Defendant without being a ?harsh measure given the extent of Plaintiff?s reliance of the documents??

Nature of Case: Breach of Contract, Fraud

Electronic Data Involved: Contents of “crashed” laptop computer

UMG Recording, Inc. v. Escape Media Group, Inc., No. 11 Civ. 8407, 2014 WL 5089743 (S.D.N.Y. Sept. 29, 2014)

Dec 01 2014

Key Insight: Court granted motion for sanctions for Defendants? bad faith deletion of relevant records related to uploading infringing materials to its music distribution service despite a duty to preserve and found that Plaintiffs were entitled to judgment as a matter of law that certain defendants illegally uploaded infringing materials; for culpable spoliation of source code, including by failing to preserve relevant data stored on a backup server when the lease on that server expired, court found that defendants were precluded from raising one of their substantive defenses to plaintiff?s motion for summary judgment

Nature of Case: Copyright infringement

Electronic Data Involved: ESI, source code

Finkle v. Howard Cnty., Md., No. SAG?13?3236, 2014 WL 6835628, (D. Md. Dec. 2, 2014)

Dec 01 2014

Key Insight: District Court granted Defendant?s Motion for Protective Order and denied Plaintiff?s Motion to Compel, finding that Plaintiff?s Interrogatory seeking the identification of all email accounts, social media services, internet discussion groups, cellular telephone or text messaging services used by certain County employees from January 2010 through the present, for the purpose of issuing a subpoena to the appropriate service providers, would impose an undue burden on Defendant and that Plaintiff was not lawfully entitled to the content of those accounts under the Stored Communications Act (?SCA?); regarding its reliance on the SCA, the court specifically reasoned that ?there is no reason to invite an unfettered ?fishing expedition? into the personal communications of non-party employees without a viable reason to believe that relevant information would be accessible to Plaintiff or would be contained therein.?

Nature of Case: Employment Discrimination (Title VII)

Electronic Data Involved: Account information for all email, social media (e.g., Facebook, MySpace), discussion groups, text messaging services, etc.

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