December 2014 – Page 19 – Electronic Discovery Law

Lawrence v. Dependable Med. Transp. Servs., LLC, No. 2:13-cv-0417-HRH, 2014 WL 2510623 (D. Ariz. June 4, 2014)

Dec 01 2014

Key Insight: Where plaintiffs supported their motion for partial summary judgment with plainly privileged e-mails between defendants and their attorneys, which defendants had inadvertently produced, court granted defendants’ motion to strike and ruled that, because plaintiffs had failed to comply with FRCP 26(b)(5)(B), they would not be allowed to use the e-mails for any purpose

Nature of Case: Fair Labor Standards Act claims

Electronic Data Involved: Privileged e-mails

Rodriguez v. City of New York, No. 114739/10, 2014 WL 2438436, May 29, 2014 (unpublished)

Dec 01 2014

Key Insight: Court granted plaintiff?s cross-motion for sanctions in the form of an adverse inference instruction, finding that it was particularly concerning that defendant Department of Education permitted surveillance video depicting at least some of the activity involved in litigation to be taped over where a police investigation immediately ensued, a Notice of Claim was filed by plaintiff, and the faculty of the school thought to view the video soon after the events occurred, and in the case of one teacher, prior to her deposition

Nature of Case: Student assaulted during school field trip sued for inadequate supervision and negligent hiring

Electronic Data Involved: Surveillance video

Enters. Int?l, Inc. v. Int?l Knife & Saw, Inc., No. C12-5638 BHS, 2014 WL 2009087 (W.D. Wash. May 16, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff?s motion for appointment of a neutral discovery expert and instead directed parties to meet and confer in person to create a plan to fully resolve their discovery dispute; court issued various directives and deadlines and recommended that plaintiffs send at least one paralegal or other individual with knowledge of or the capability to understand defendants? electronic and paper filing systems, to work with an appointed representative from defendants? side to search through defendants? electronic databases, and that defendants should appoint someone who could fully explain what is in the databases and assist in the search process

Nature of Case: Breach of contract, misappropriation of trade secrets, copyright infringement

Electronic Data Involved: Electronic databases

Emery v. Harris, No. 1:10-cv-01947-JLT (PC), 2014 WL 710957 (E.D. Cal. Feb. 21, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for spoliation sanctions because it was untimely and because plaintiff did not establish that defendant had control over the subject videotape or that defendant was on notice that litigation would ensue before the videotape was taped over

Nature of Case: Excessive use of force claims brought by pro se state prisoner

Electronic Data Involved: Videotape of prison yard area where altercation took place

State v. Otkovic, No. 20120197-CA, 2014 WL 969232 (Utah Ct. App. Mar. 13, 2014)

Dec 01 2014

Key Insight: Remanding case for retrial on other issues, appellate court found no error by trial court in admitting text messages into evidence, and discussed foundational requirements that must be met for admission of text messages

Nature of Case: Criminal

Electronic Data Involved: Text messages

Klipsch Group, Inc. v. Big Box Store Ltd., No. 12 Civ. 6283 (VSB)(MHD), 2014 WL 904595 (S.D.N.Y. Mar. 4, 2014)

Dec 01 2014

Key Insight: Where defendants failed to issue litigation hold and their belated oral instructions were inadequate both in form and content, court authorized plaintiff to undertake a forensic investigation into state of defendants’ computer systems for purpose of determining likelihood of document destruction, likely nature and volume of any such destroyed documents, whether some or all of those documents may be recovered, and the status of sales information on the computers; court deferred ruling on plaintiff’s motion for adverse inference instruction or cost-shifting pending results of investigation

Nature of Case: Trademark infringement

Electronic Data Involved: E-mails and other ESI

Brandofino Commc’ns, Inc. v. Augme Techs. Inc., No. 652639/11, 2014 WL 302227 (N.Y. Sup. Ct. Jan. 24, 2014) (unpublished)

Dec 01 2014

Key Insight: Where parties had each produced documents in text-searchable format for review in Concordance, and defendants made later, supplemental electronic productions in several ?massive? PDF files without any metadata and abruptly refused to follow prior practice, court granted plaintiff?s motion directing defendants to produce all documents in text-searchable format with necessary Concordance load files given that plaintiff?s initial document requests specified such format, defendants? initial production was made in accordance with those instructions without any objection, and sheer volume of documents at issue required production in an accessible format that allowed for easy sorting and searching

Nature of Case: Breach of contract

Electronic Data Involved: ESI and Concordance load files

Audio Visual Innovations, Inc. v. Burgdolf, No. 13-10372, 2014 WL 505565 (E. D. Mich. Feb. 3, 2014)

Dec 01 2014

Key Insight: Forensic examination of defendants’ electronic devices was appropriate given nature of case and allegations against individual defendants; court identified particular devices to be examined and provided specific guidelines for the examination and review of ESI, but denied plaintiff’s request for attorneys’ fees since defendants’ objections were reasonable; court further ruled that costs associated with obtaining the information from the devices would be borne by plaintiff

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI on defendant’s electronic devices

XL Specialty Ins. Co. v. Bollinger Shipyards, Inc., No. 12-2071, 2014 WL 295053 (E.D. La. Jan 27, 2014)

Dec 01 2014

Key Insight: Court rejected plaintiff’s complaints regarding format of defendant’s production of documents, because plaintiff failed to make any Rule 34(b)(2)(B) ESI specification in its discovery requests and defendant’s production of scanned images on OCR readable disc was a reasonably usable form; court ordered defendant to explain its document naming and numbering system to the extent it had not already done so, but denied any additional logistical relief, stating: ?Whatever burden XL and its counsel face in reviewing these materials that they themselves have requested is rightfully borne by them.?

Nature of Case: Insurance coverage

Electronic Data Involved: Database of more than 808,000 documents consisting of more than four million pages

Dewhurst v. Century Aluminum Co., No. 2:09-1546, 2014 WL 555164 (S.D. W. Va. Feb. 12, 2014)

Dec 01 2014

Key Insight: Court denied defendant’s motion for spoliation sanctions based on union’s failure to preserve evidence, noting that union appeared to have been diligent in trying to gather up relevant documents once litigation commenced, there was no way to determine when the missing records were destroyed, and union was autonomous organization and none of the existing plaintiffs shouldered any blame for the union’s negligence

Nature of Case: Class action regarding defendant’s obligation to restore certain retiree healthcare benefits

Electronic Data Involved: E-mail and other ESI

Archive - December 2014