2014 – Page 12 – Electronic Discovery Law

Melian Labs, Inc. v. Triology, LLC, No. 13-cv-04791-SBA (KAW), 2014 WL 4386439 (N.D. Cal. Sep. 4, 2014)

Dec 01 2014

Key Insight: Court denied defendant?s motion to compel production of all emails and spreadsheets in native format, since the parties? Joint Rule 26(f) Report was a stipulation and therefore Rule 34(b) did not govern their dispute; the parties? Joint Rule 26(f) Report did not require that all ESI be produced electronically but only stated that ESI may be produced in paper, PDF, or TIFF and that electronic files should be produced in native format when it was more practicable to do so; defendant failed to articulate why metadata was important to emails; and plaintiff had already produced some of its spreadsheets in native format (Excel) where the printouts were difficult to read

Nature of Case: Trademark infringement

Electronic Data Involved: Email and spreadsheets

Vasquez v. Cal. Sch. of Culinary Arts, 230 Cal.App.4th 35(2014)

Dec 01 2014

Key Insight: Trial court did not err in awarding plaintiffs their attorneys’ fees and costs incurred after successfully opposing Sallie Mae’s motion to quash subpoena, as Sallie Mae lacked substantial justification for its motion given that plaintiffs did not seek to have Sallie Mae extract and compile information from paper files but only asked that Sallie Mae extract ESI from an existing database, plaintiffs never expressed an unwillingness to pay for the reasonable cost of doing so but repeatedly asked for a cost estimate, and Sallie Mae ignored plaintiffs’ requests and did not provide a cost estimate until after its motion to quash had been denied and plaintiffs’ request for attorneys’ fees was being heard

Nature of Case: 1,034 former students asserted claims of fraud, breach of contract and violations of consumer laws

Electronic Data Involved: Loan records maintained by Sallie Mae

Shipley v. Forest Labs., No. 1:06-cv-00048-TC-DBP, 2014 WL 4270939 (D. Utah Aug. 29, 2014)

Dec 01 2014

Key Insight: Stating it could not speculate about defendant’s claimed burden given lack of any details, court granted in part plaintiff’s motion to compel and ordered defendant to run a preliminary search of custodial files belonging to particular sales representatives using search terms and time limits set forth in Case Profile Form, and to submit a certification to the court describing the volume of responsive documents and the approximate cost defendant would incur in running a full search through its vendor and through privilege review; once the court received the certification, it would determine whether the burden of producing such custodial documents outweighed the benefit of production

Nature of Case: Products liability wrongful death action

Electronic Data Involved: ESI

Weitzman v. Maywood, Melrose Park, Broadview Sch. Dist. 89, No. 13 C 1228, 2014 WL 4269074 (N.D. Ill. Aug. 29, 2014)

Dec 01 2014

Key Insight: Court granted plaintiff?s motion for an adverse inference instruction where school district destroyed clearly relevant recordings of school board?s closed session meetings by failing to suspend its usual document destruction policies after having notice of its duty to preserve, and where plaintiff suffered substantial prejudice as a result because she was deprived of perhaps the best evidence concerning school district?s real reasons for her termination; court further denied school district?s pending motion for summary judgment since, in light of the adverse inference against the school district, the material facts as to the district?s reasons for terminating plaintiff were, at a minimum, disputed, and in fact appeared to support plaintiff?s claim of discrimination

Nature of Case: Age Discrimination in Employment Act claim

Electronic Data Involved: Tape recordings of school board’s closed session meetings during which board members discussed the decision not to renew contracts of plaintiff and others

Dover v. British Airways, PLC (UK), No. CV 2012-5567 (RJD)(MDG), 2014 WL 4065084 (E.D.N.Y. Aug. 15, 2014), affirmed, Dover v. British Airways, PLC (UK), No. CV 2012-5567 (RJD)(MDG), 2014 WL 5090021 (E.D.N.Y. Oct. 9, 2014)

Dec 01 2014

Key Insight: Where parties entered into a stipulated protective order approved by the court that contained a provision concerning inadvertent disclosures, and plaintiffs inadvertently produced the protected information on the spreadsheets twice and conceded they were “careless,” court did not find plaintiffs’ conduct to be so “completely reckless” as to warrant a finding of waiver given the totality of the circumstances and particularly the nature of the production, plaintiffs’ prompt request for return of the protected information, and the overriding issues of fairness

Nature of Case: Class action alleging that defendant British Airways violated its frequent flyer program contract by imposing unlawful fuel surcharges on rewards flights

Electronic Data Involved: Spreadsheets prepared by non-testifying, consulting experts

Kinsler v. City of Philadelphia, No. 13-6412, 2014 WL 3964925 (E.D. Pa. Aug. 11, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for spoliation sanctions based on police department’s loss of cell phone video, as the video did not capture any interaction between plaintiff and the two police officers and it was unclear how the video could be relevant to plaintiff’s claims, plaintiff possessed a second video that did capture the events of the night in question and therefore plaintiff was not prejudiced by loss of the cell phone video, and there was no evidence that the two officers (the only remaining defendants in the case) were ever in possession or control of the cell phone video or responsible for its destruction

Nature of Case: Claims for excessive force and malicious prosecution

Electronic Data Involved: Cell phone video recorded by a witness to the events, 15-30 seconds in duration, which was uploaded onto a Philadelphia Police Department computer and subsequently lost

Gloucester Twp. Hous. Auth. V. Franklin Square Assocs., No. 12-0953 (RMB/AMD), 2014 WL 3974168 (D.N.J. Aug. 12, 2014)

Dec 01 2014

Key Insight: Court evaluated five factors to determine that defendant’s inadvertent disclosure waived the attorney-client privilege, where defendant did not describe the precautions taken, if any, to prevent the disclosure of privileged information, but instead relied on the purportedly voluminous nature of the production, the disputed letters set forth communications between attorney and client concerning clearly privileged, substantive information relating to the litigation, the letters were produced in the litigation on two separate occasions, and defense counsel waited over three months after the letters’ production before attempting to rectify the disclosures and only discovered the inadvertent disclosure while preparing for a deposition

Nature of Case: Breach of contract

Electronic Data Involved: Privileged letters

Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 12-2350-SAC, 2014 WL 806122 (D. Kan. Feb. 28, 2014)

Dec 01 2014

Key Insight: Court denied in most respects plaintiff’s motion for protective order, finding that plaintiff’s undue burden and expense arguments were unsupported and conclusory; court further denied plaintiff’s alternative proposal to shift some of the uncalculated ESI costs onto defendants as plaintiff failed to show that the disputed ESI production was inaccessible because of undue burden or cost, and because other relevant factors did not weigh in plaintiff’s favor; court further denied plaintiff?s request for a discovery conference or appointment of an ESI master, and ordered the parties to meet and confer regarding the proper method to search custodian hard drives, and suggested the parties consider a clawback provision specifically for ESI harvested after running the parties? respective search terms

Nature of Case: Insurance coverage dispute

Electronic Data Involved: ESI in databases and stored on custodian hard drives

Campbell Alliance Group, Inc. v. Dandekar, No. 5:13-CV-00415-FL, 2014 WL 145037 (E.D.N.C. Jan. 13, 2014)

Dec 01 2014

Key Insight: Court granted plaintiff’s motion for additional, expedited discovery to conduct forensic examination of additional storage devices, and set out in full the parties’ Stipulation Regarding Protocol for Forensic Investigation and Analysis

Nature of Case: Former employer asserted breach of contract and breach of fiduciary duty claims against former employees for alleged violations of post-employment activity restrictions and confidentiality covenants contained in employment agreements

Electronic Data Involved: Various electronic storage devices

Crissen v. Gupta, No. 2:12-cv-00355-JMS-WGH, 2014 WL 1431653 (S.D. Ind. Apr. 14, 2014)

Dec 01 2014

Key Insight: Court criticized plaintiff for not complying with inadvertent production provision of protective order and ordered plaintiff to delete all copies of the recalled documents and any information gleaned therefrom from its network drive, and further ruled that plaintiff may not use the documents or any work product derived therefrom unless and until it is determined that those documents should have been produced; court further awarded bank its fees and costs in connection with the motion, to be paid by plaintiff’s counsel, because the language of the claw back provision was clear and plaintiff’s counsel not only ignored that language but then took the extra step of reviewing the very documents the bank sought to recall

Nature of Case: Racketeering, fraud, unjust enrichment

Electronic Data Involved: Tax returns, bank documents containing defendants’ personal financial information, and internal bank documents

Archive - 2014