December 2014 – Page 5 – Electronic Discovery Law

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.

Ablan v. Bank of Am. Corp., No. 11 CV 4493, 2014 WL 6704293 (N.D. Ill. Nov. 24, 2014)

Dec 01 2014

Key Insight: Adopting magistrate judge’s report and recommendation, district court granted defendants? motion to strike plaintiffs? additional damages claim as sanction for plaintiffs? tardy production of documents relating to additional damages claim, which production occurred more then three months after discovery period closed, as plaintiffs offered no justification for failing to timely produce the documents and defendants would be prejudiced if plaintiffs were allowed to rely on the new evidence to defeat summary judgment or at trial; court further awarded defendants their attorneys? fees incurred in filing the motion, but denied defendants? request for expert costs associated with reviewing the new information because defendants? experts would have reviewed any new information even if it had been timely, and there was no evidence that defendants? experts had to revise their expert reports due to the belated production, and therefore no excess expert costs resulted from the late production

Nature of Case: Breach of contract

Electronic Data Involved: Documents on eight CD-ROMS

Commonwealth v. Foster F., No. 13-P-1427, 2014 WL 6909045 (Mass. App. Ct. Dec. 10, 2014)

Dec 01 2014

Key Insight: Because the relevancy and admissibility of the Facebook messages depended on their being authored by the juvenile, the judge was required to determine whether the evidence was sufficient for a reasonable jury to find by a preponderance of the evidence that the juvenile authored them; while the evidence was sufficient to support the judge’s conclusion that the Facebook messages were authored by the juvenile, as the juvenile?s actions served as a basis for concluding that the records were authentic, the better practice would have been to instruct the jurors that, in order to consider the Facebook messages as evidence of the statements contained therein, they first needed to find by a fair preponderance of the evidence that the juvenile was the author

Nature of Case: Juvenile court matter in which juvenile was adjudicated delinquent

Electronic Data Involved: Social networking Internet website messages

Linex Techs., Inc. v. Hewlett-Packard Co., No. 13-cv-00159-CW (MEJ), 2014 WL 5494906 (N.D. Cal. Oct. 30, 2014)

Dec 01 2014

Key Insight: Magistrate judge evaluated defendants’ bills of taxable costs and plaintiff’s objections thereto, and allowed and disallowed various e-discovery related costs; magistrate judge observed that courts within the Northern District of California have awarded costs under 28 USC s. 1920(4) for such things as scanning paper documents, electronic scanning and conversion to PDF, TIFF conversion, OCR and OCR conversion, image endorsement/Bates stamping, slip sheet preparation, blow-back scanning paper documents, and media hardware used for production; she further awarded costs related to the loading and processing of data, designed to make the data usable, actual data production costs, and migration and restoration costs designed to move the data — already stored in another database — into another database for use in the litigation; magistrate judge further ruled that e-discovery hosting costs and associated fees and FedEx costs associated with e-discovery costs were not compensable

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Palma v. Metro PCS Wireless, Inc., 18 F.Supp.3d 1346 (M.D. Fla. 2014)

Dec 01 2014

Key Insight: Observing that, generally, social media content is neither privileged nor protected by any right of privacy, nevertheless, a defendant does not have a generalized right to rummage at will through information that plaintiff has limited from public view, court denied defendant?s motion to compel, questioning the relevance of the material sought and finding that ?the burden of requiring all of the opt-in Plaintiffs to review all of their postings on potentially multiple social media sites over a period of four years and determine which posts relate to their job, hours worked, or this case, would be an ?extremely onerous and time-consuming task’?

Nature of Case: Fair Labor Standards Act claims

Electronic Data Involved: Posts to social media accounts and private messages sent from social media sites

Warren Indus., Inc. v. PMG Ind. Corp., No. 13-CV-13026, 2014 WL 5705011 (E.D. Mich. Nov. 5, 2014)

Dec 01 2014

Key Insight: Court rejected defendants’ argument that they did not have access to the email of defendants? Chairman of the Board because the email was kept on a server in Germany that defendants did not own or control, and ruled that, although defendants’ IT manager may not be able to access the Chairman’s email from his Indiana location, the Chairman, as Chairman of the Board of defendant companies, “indeed has possession, custody, and control over his own e-mail communications, regardless of where the server containing these e-mails [was] located; court granted plaintiff’s motion to compel and awarded plaintiff its attorney’s fees and costs associated with the motion

Nature of Case: Breach of contract

Electronic Data Involved: Email stored on server in Germany

James v. Nat?l Fin. LLC, No. 8931-VCL, 2014 WL 6845560 (Del. Ch. Dec. 5, 2014)

Dec 01 2014

Key Insight: Where defendant failed to provide all the information required by the court’s first discovery order, then failed to comply with second discovery order that required production of an updated spreadsheet with an affidavit from defendant?s IT consultant explaining how the consultant extracted data from defendant’s systems and imported the data into the updated spreadsheet, and where defendant made numerous misrepresentations to plaintiff and to the court regarding the data and defendant?s efforts to comply with the orders, court declined to enter default judgment as a discovery sanction and instead ordered that certain facts adverse to defendant were to be deemed established; court further awarded plaintiff her expenses, including attorneys? fees, to be paid by both defendant and its counsel

Nature of Case: Putative class action alleging that defendant’s loan practices were unconscionable and its loan terms unenforceable

Electronic Data Involved: Spreadsheet containing loan history information

Flagstar Bank, FSB v. Walker, No. 05-13-00724-CV, 2014 WL 6065713 (Tex. App. Nov. 14, 2014)

Dec 01 2014

Key Insight: Trial court did not abuse its discretion in denying plaintiff’s request for adverse inference instruction as sanction for defendant?s inability to produce additional communications – which defendant had explained were not available because defendant had replaced its servers and had not backed-up the data – because there was no proof that defendant intentionally concealed evidence or that the spoliation irreparably deprived plaintiff of any meaningful ability to present its claims

Nature of Case: Claims arising from misappropriation of over $8 million in load proceeds designated to fund a series of residential loan transactions

Electronic Data Involved: Email

Green v. Am. Modern Home Ins. Co., No. 1:14-cv-04074, 2014 WL 6668422 (W.D. Ark. Nov. 24, 2014)

Dec 01 2014

Key Insight: Court granted parties’ Joint Motion for Entry of Agreed Order Establishing Protocol for Production of Electronically Stored Information, which addressed search terms, production format, and various other e-discovery matters

Nature of Case: Insurance coverage

Electronic Data Involved: ESI

Archive - December 2014