December 1, 2015 – Page 11 – Electronic Discovery Law

Ballard v. Williams, No. 3:10-cv-01456, 2015 WL 179071 (M.D. Pa. Jan. 14, 2015)

Dec 01 2015

Key Insight: Where surveillance footage of hallway in which alleged assault occurred was overwritten, the court reasoned there was no indication that the evidence was intentionally lost or destroyed, that the named defendants were not responsible for the video system, and that defendant was not ?materially prejudiced? because he could still testify as to what happened and therefore denied the motion for sanctions

Nature of Case: Alleged assault by prison officers and related claims

Electronic Data Involved: Surveillance video

Scott v. Moniz, No. 3:14-CV-5684-RJB, 2015 WL 38223705 (W.D. Wash. June 19, 2015)

Dec 01 2015

Key Insight: Failure to preserve emails after defaulting to regular document retention policies based on mistaken belief that Plaintiff had not appealed the dismissal of her case was ?at least negligent,? but court continued motion subject to renoting when discovery was complete to allow for an evaluation of prejudice

Nature of Case: Employment litigation

Electronic Data Involved: Emails

In re Delta/AirTran Baggage Fee Antitrust Litig., No. 1:09-md-2089-TCB, 2015 WL 4635729 (N.D. Ga. Aug. 3, 2015)

Dec 01 2015

Key Insight: Where Special Master declined to recommend spoliation sanctions but recommended $1,855,255.09 in monetary sanctions ?to compensate Plaintiffs for the additional time and expenses that they have incurred as a result of Delta?s failure to comply with discovery obligations,? including Defendant?s delayed identification and production of relevant evidence (including backup tapes and other ESI), the District Court agreed that monetary sanctions were appropriate but found that a higher amount was warranted and thus increased the monetary sanctions to $2,718,795.05

Nature of Case: Antitrust (Bag fees)

Electronic Data Involved: ESI, backup tapes

Charvat v. Valente, No. 12 CV 5746, 2015 WL 4037776 (N.D. Ill. July 1, 2015)

Dec 01 2015

Key Insight: Court declined to impose sanctions for loss of former employees? ESI where ESI was deleted pursuant to ?established document retention policy? absent any evidence of bad faith

Nature of Case: Prohibited Telemarketing

Electronic Data Involved: ESI

US ex rel Oughatiyan v. IPC The Hospitalist Co., Inc., No. 09 C 5418, 2015 WL 4249195 (N.D. Ill. July 14, 2015)

Dec 01 2015

Key Insight: Court addressed motion to compel nationwide discovery in action for fraudulent billing of Medicare and Medicaid but, considering the ?scope of discovery expressed in Rule 26(b)(1) along with the principle of proportionality implicit in Rule 26(b)(2)(C)(iii)? limited initial phase of discovery to the seven states regarding which ?factual allegations? had been alleged in the complaint, recognizing that ?staged discovery [was] the way to move discovery forward,? and indicated that the motion would be denied without prejudice

Nature of Case: False Claims Act

Electronic Data Involved: ESI records from nationwide locations

State Farm Mut. Auto. Ins. Co. v. Warren Chiropractic & Rehab Clinic, P.C., No. 4:14-CV-11521, 2015 WL 4094115 (E.D. Mich. July 7, 2015)

Dec 01 2015

Key Insight: Court granted motion to compel and rejected objections based on burden where Defendants offered no evidence in support of the alleged claims of burden nor ?any specificity regarding the approximate cost of production?

Nature of Case: Fraud

Electronic Data Involved: ESI

Arkansas River Power Auth. v. Babcock & Wilcox Power Generation Grp., Inc., No. 14-cv-00368-CMA-NYW, 2015 WL 2128312 (D. Colo. May 5, 2015)

Dec 01 2015

Key Insight: Addressing several disputes, court concluded that parties having agreed on an ESI production ?must only comply with Rule 34(b)(2)(E)(ii)? and that the question was therefore whether the defendant ?produced its ESI in the form in which it is ordinarily maintained or in a reasonably usable form or forms. The rule clearly requires one or the other, but not both.?; where defendant produced majority of its documents in a reasonably usable form (TIFF), court declined to compel production of additional metadata

Nature of Case: Breach of contract and related claims

Electronic Data Involved: ESI

Commonwealth v. Mulgrave, 33 N.E.3d 440 (Mass. July 13, 2015)

Dec 01 2015

Key Insight: Where murder victim sent text message to son stating that defendant was threatening to kill her and that she was scared and 6 minutes later called 911 to report that defendant was stabbing her, court did not err in allowing text message to son into evidence under the ?spontaneous utterance? exception to the hearsay rule

Nature of Case: Murder

Electronic Data Involved: Text message

United States v. Lizarraga-Tirado, —F.3d—, 2015 WL 3772772 (9th Cir. June 18, 2015)

Dec 01 2015

Key Insight: Court found that Google Earth satellite image was not hearsay because it makes no assertion and also found that ?[a] tack placed by the Google Earth program and automatically labeled with GPS coordinates isn?t? hearsay? because the ?relevant assertion isn?t made by a person? its made by the Google Earth program? and therefore, there is no statement as defined by the hearsay rule (where the rule applies ?only to out-of-court statements? and where ?it defines a statement as ?a person?s oral assertion, written assertion, or nonverbal conduct?); however, ?[i]f the tack is place d manually and then labeled . . . its classic hearsay?

Nature of Case: Illegal re-entry into the U.S.A.

Electronic Data Involved: Google Earth image and tack

HMS Holdings Corp. v. Arendt, NO. A754/2014, 2015 WL 2403099 (N.Y. Sup. Ct. May 19, 2015)

Dec 01 2015

Key Insight: For one defendant?s repeated use of a cleaning software (?Disk Utility? and its ?Secure Erase Free Space? function) to delete files and loss of a relevant hard drive without an adequate explanation and for another defendant?s loss of relevant ESI, including her intentional deletion of information from the desktop registry and her disposal of her cell phone (which she notably was unaware had been automatically backed up each time it was connected to her computer), ongoing deletion of text messages (on her new phone), and misrepresentations about when the old phone was discarded, the court found that a mandatory adverse inference was warranted and rejected Defendants? argument that the court should decline to employ the adverse inference at the preliminary injunction state, reasoning that the objective of promoting fairness was best served by ?employing an adverse inference at all relevant states of the litigation?; court also ordered defendants to pay Plaintiff?s attorneys fees without seeking reimbursement from their new employer and indicated its intention to forward its decision to the NY Bar in light of one defendant?s status as an attorney

Nature of Case: Misappropriation of trade secrets, breach of “post-employment covenants”

Electronic Data Involved: ESI, hard drive, text messages (iphone)

Archive - December 1, 2015