December 2015 – Page 11 – Electronic Discovery Law

Flanders v. Dzugan, No. 12-1481, 2015 WL 5022734 (W.D. Pa. Aug. 24, 2015)

Dec 01 2015

Key Insight: Court declined to impose sanctions, despite Defendant?s failure to issue a litigation hold, where Plaintiff could not show that evidence was actually lost or destroyed and where, although the court acknowledged that Defendant?s record keeping appeared ?slipshod,? Plaintiff could not show bad faith (?in no case in the Third Circuit cited by Plaintiff, or found by this Court, has a court granted a spoliation inference on nothing more than a failure to institute a litigation hold?)

Nature of Case: [A]lleged constitutional violations arising out of the building permit approval process

Electronic Data Involved: ESI, email

City of Sterling Heights Gen. Emps.? Ret. Sys. V. Prudential Fin., Inc., No. 12-05275(MCA)(LDW), 2015 WL 5055241 (D.N.J. Aug. 21, 2015)

Dec 01 2015

Key Insight: Citing its broad discretion to manage discovery and the limitations posed by Rule 26(b)(2)(C), court granted in part and denied in part Plaintiffs? motion to compel Defendant to identify additional custodians and utilize additional search terms and ordered that Plaintiffs would be allowed to choose up to 10 additional custodians and that Defendant must apply the four disputed search terms proposed by Plaintiffs

Nature of Case: Securities Class Action

Electronic Data Involved: ESI

S.E.C. v. CKB168 Holdings, Ltd., No. 13-CV-5584 (RRM), 2015 WL 4872553 (E.D.N.Y. Jan. 7, 2015)

Dec 01 2015

Key Insight: Rejecting defendants? explanation that their failure to preserve was the result of a vendor?s refusal to continue assistance for the reason of non-payment, the court found that defendants? had a duty to preserve the information stored on the corporate server that began ?well before the vendor stopped providing services? and reasoned that it was defendants? obligation to ?take ?all necessary steps to guarantee that relevant data was both preserved and produced,?? and also found that defendants were ?at a minimum grossly negligent? for failing to preserve relevant evidence where there was no evidence of efforts to preserve a readable copy of the corporate server nor evidence that they sought modification of the freeze on their assets in able to make payments to the vendor; magistrate judge recommended sanction of an adverse inference

Nature of Case: Securities and Exchange Commission investigation (SEC)

Electronic Data Involved: Contents of corporate server / “back office data”

Farley v. Callais & Sons LLC, No. 14-2550, 2015 WL 4730729 (E.D. La. Aug. 10, 2015)

Dec 01 2015

Key Insight: Court declined to compel production of log in information and all Facebook information posted since the underlying accident but granted the motion in part and compelled the production of certain categories of information to be identified by a review of Plaintiff?s account by his counsel; courts also ordered submission of sworn declaration that all such information was produced and that counsel ensured preservation of the Facebook materials lest a dispute arise in future

Nature of Case: Personal injury

Electronic Data Involved: Social Media

Artt v. Orange Lake Country Club Realty, Inc., No. 6:14-cv-956-Orl-40TBS, 2015 WL 4911086 (M.D. Fla. Aug. 17, 2015)

Dec 01 2015

Key Insight: In FLSA case seeking compensation for ?off the clock? work, court found that defendant?s request for any social media activity posted between 7AM and 7PM on any date between June 19, 2011 and Plaintiff?s termination was ?on its face overbroad, unduly burdensome and unreasonable?

Nature of Case: FLSA

Electronic Data Involved: Social media

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

Archive - December 2015