December 1, 2015 – Page 9 – Electronic Discovery Law

Truesdell v. Thomas No. 5:13-cv-552-Oc-10PRL, 2015 WL 2022991 (M.D. Fla. Apr. 30, 2015)

Dec 01 2015

Key Insight: Court denied Motion to Compel Production of Electronically Stored Data where plaintiff said that 1500 printed pages of defendant?s database usage history were inadequate under FRCP 34(e)(ii) because they were not easily searchable. Plaintiff sought to compel production of the electronic version of the data to include metadata, but the court said that the printed information was not as cumbersome as the plaintiff suggested because only a limited time period contained within the pages was relevant; the data did not originate from the defendant, so the defendant did not have the ability to manipulate the data to provide it only for the limited time period; and the plaintiff was unable to identify any information contained in the electronic version of the data that was not also contained in the printed pages.

Nature of Case: Privacy Rights

Electronic Data Involved: Database

United States v. Vaugh, No. 14-23 (JLL), 2015 WL 6948577 (D.N.J. Nov. 11, 2015)

Dec 01 2015

Key Insight: In this criminal case, a pro se defendant sought sanctions, including dismissal of the indictment, for the Government?s failure to preserve text messages relevant to its investigation. Upon examination of the facts, including the Government?s acknowledged failure to preserve certain texts and constantly changing explanations surrounding that failure as well as the ?different level of diligence? applied to different text messages (care was taken to preserve messages belonging to a cooperating witness), the court determined sanctions were warranted. Accordingly, the court ordered that the Government would be precluded from using any text messages in its case-in-chief and reserved judgement until trial regarding the propriety of an adverse inference instruction.

Nature of Case: Criminal

Electronic Data Involved: Text messages

United States v. Dish Network, LLC, No. 09-3073, 2015 WL 5970446 (C.D. Ill. Oct. 13, 2015)

Dec 01 2015

Key Insight: For defendant?s failure to preserve and produce relevant evidence, copies or versions of which were discovered on a third party?s hard drive (e.g. correspondence between Defendant?s employee and the third party that were not preserved and produced by the defendant), the court found that Plaintiff ?suffered some prejudice? and thus sanctioned Defendant by taking it as ?established fact? that Defendant had similar communications with all of its ?Order Entry Retailers? (of which the relevant third party was one) of the same ?substantive type and quantity? as those discovered on the third party?s hard drive

Nature of Case: FTC Investigation: TCPA

Electronic Data Involved: ESI, email

Moore v. Wayne Smith Trucking, Inc., No. 14-1919, 2015 WL 6438913 (E.D. La. Oct. 21, 2015)

Dec 01 2015

Key Insight: Court concluded that Facebook materials are discoverable but would not require Defendant to produce his username and password and instead ordered Defendant to provide his attorney with postings from the relevant time period to be reviewed by the attorney?and not the defendant?to identify responsive information

Nature of Case: Personal injury

Electronic Data Involved: Social network contents (e.g., Facebook, MySpace)

LBI, Inc. v. Sparks, No. KNLCV126018984S, 2015 WL 6144112 (Conn. Super. Ct. Sept. 18, 2015)

Dec 01 2015

Key Insight: Where Defendant sought to avoid production or allocate costs related to the production of allegedly inaccessible information based on the alleged cost and burdens related to processing and review but acknowledged that some of the ?raw data associated with the documents? was accessible, the court concluded that the affidavit from an attorney for the defendant?s counsel who had not ?attested to having a technical understanding of, or background in, electronically stored data? was not by itself ?enough evidence? to demonstrate that the at-issue ESI was not reasonably accessible and ordered defendant to submit additional evidence re: whether the information was stored in a ?readily usable format?

Nature of Case: Breach of contract, breach of duty of loyalty, misappropriation of trade secrets and tortious interference with a business relationship

Electronic Data Involved: ESI

Appler v. Mead Johnson & Co., LLC, NO. 3:14-cv-166-RLY-WGH, 2015 WL 5793236 (S.D. Ind. Oct. 1, 2015)

Dec 01 2015

Key Insight: Despite ?attenuated? arguments in favor of production, court found that social media content of Plaintiff?s supervisor and Defendant?s human resources representative could contain relevant information and, pursuant to a pre-existing protective order restricting disbursement of discoverable information, concluded that Plaintiff?s counsel could review the individuals’ social networking sites (SNS) content for relevant remarks; court ordered hearing to discuss procedures for searching and limiting SNS content, the costs of such a search, who should conduct the search, etc.

Nature of Case: Employment litigation

Electronic Data Involved: Social media (Facebook, MySpace)

Henry v. Abbott Labs., No. 2:12-cv-841, 2015 WL 5729344 (S.D. Ohio Sept. 30, 2015)

Dec 01 2015

Key Insight: Despite duty to preserve personnel records created by regulation (29 CFR ? 1602.14), court found no ?regulatory violation? in the destruction of documents subject to preservation until a ?final disposition? of the action where documents were destroyed following Plaintiff?s failure to appeal the dismissal of her case; court also found that even if Defendant had an ongoing duty to preserve (because the case was eventually reinstated upon Plaintiff?s motion for relief from the dismissal), there was no evidence of requisite culpability where Defendant reasonably believed (as did the court) that the case had been ?finally adjudicated;? the court also questioned the relevance of the at-issue documents

Nature of Case: Employment discrimination

Electronic Data Involved: ESI: personnel evaluations, surveys related to promotion

Bloom v. Toliver, No. 12-CV-169-JED-FHM, 2015 WL 5344360 (N.D. Okla. Sept. 14, 2015)

Dec 01 2015

Key Insight: Where prisoner alleged that he was attacked by another inmate and that corrections officers failed to properly respond, court found prison had a duty to preserve relevant surveillance footage and the recording of the involved-officer?s phone call to his wife immediately following the incident and that the failure to do so resulted in prejudice; court ordered evidentiary sanctions for the loss of certain footage, but reserved a determination re: sanctions as to lost video of the aftermath of the attack and the officer?s phone call

Nature of Case: Civil rights

Electronic Data Involved: Video surveillance footage and call recording

You v. Japan, No. C 15-30257, 2015 WL 5542539 (N.D. Cal. Sept. 9, 2015)

Dec 01 2015

Key Insight: In this case, the court ordered preservation, including “interdiction of any document-destruction programs . . .” and defendant alleged that preservation of all contents of a proprietary publication application could slow down or crash the system and that installation of a new storage system would cost $18 million dollars and could take up to eight months to install. Accordingly, the defendant sought permission to employ an alternative preservation protocol, namely the use of key word search terms to identify materials to be preserved in a ?searchable environment not subject to auto-delete.? With the addition of one search term to be employed, the court approved Defendant?s proposal.

Nature of Case: Putative personal injury class action involving claims against numerous defendants for alleged sexual violence during World War II

Electronic Data Involved: ESI

Grove City Veterinary Serv. LLC v. Charter Practices Int?l, LLC, No. 3:13-cv-02276-AC, 2015 WL 4937393 (D. Or. Aug. 18, 2015)

Dec 01 2015

Key Insight: Where Plaintiff had a ?continuing business relationship? with Defendant despite the pending litigation and Defendant hosted Plaintiff?s emails on its servers, court rejected Plaintiff?s claim that Defendant?s changes to the email-archiving system resulted in a loss of Plaintiff?s emails where Plaintiff could provide no evidence of Defendant?s alleged access to Plaintiff?s emails and where Defendant credibly posited that Plaintiff had accidentally ?dragged and dropped? the missing email folders into the ?Notes? tab of the archived mailbox (where the emails were ultimately located); court also declined to impose sanctions for Defendant?s initial refusal to assist Plaintiff to locate the emails (that it had requested) where it had no duty to do so, and where despite that lack of duty, it nonetheless ultimately made a good faith, but unsuccessful, search effort; Defendant?s litigation hold on Plaintiff?s email account to retain copies of messages that anyone attempted to delete did not warrant sanctions, despite Plaintiff?s claim that the hold was ?worse than spoliation? because ?unlike evidence unlawfully destroyed by a party, evidence placed in a litigation hold is still available to the party implementing the litigation hold?

Nature of Case: Breach of contract

Electronic Data Involved: Emails

Archive - December 1, 2015