December 2015 – Page 5 – Electronic Discovery Law

East Bridge Lofts Prop. Assoc., Inc. v. Crum & Forster Specialty Ins. Co., No. 2:14-cv-2567-RMC, 2015 WL 12831731 (D.S.C. June 18, 2015)

Dec 01 2015

Key Insight: Where Plaintiff sought forensic examination of email accounts not searched by Defendants, the court acknowledged the ?expense and difficulty? of such examinations and reasoned that ?mere skepticism? that relevant information has not been produced is insufficient to warrant such drastic measures and thus denied the request; court reasoned Defendant had failed to reveal the search terms utilized to identify responsive documents in searches of three other email accounts and that Plaintiffs had established the relevancy of all of the requested accounts and ordered the parties to meet and confer as to an appropriate search methodology for all accounts

Nature of Case: Insurance litigation: bad faith

Electronic Data Involved: Forensic examination of email accounts

Hespe v. City of Chicago, No. 13 C 7998, 2016 WL 7240754 (N.D. Ill. Dec. 15, 2015)

Dec 01 2015

Key Insight: Where a magistrate judge found the requested inspection of Plaintiff?s devices was not proportional to the needs of the case ?especially? in light of Plaintiff?s privacy and confidentiality interests despite the production of thousands of text messages by Plaintiffs? mother (which Plaintiff confirmed she had sent to her for safekeeping) and alleged inconsistent testimony from the Plaintiff, the District Court Judge overruling Defendants? objections acknowledged the need for caution in allowing such inspections (including by citing the 2006 Advisory Committee Notes to Fed. R. Civ. P. 34) absent evidence of a responding party?s failure as to its discovery obligations or a ?substantiated connection? between the at-issue device and the claims of the case and concluded that neither had been established in the present case

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, text messages

Hausman v. Holland Amer. Line – USA, No. 13cv00937 BJR, 2016 WL 11234152

Dec 01 2015

Key Insight: Where Plaintiff sought to shift the costs of ?preparing emails for production? (estimated to be $16,325), the court reasoned that Plaintiff assumed the responsibility for producing relevant documents by initiating the litigation, that cost shifting is ?appropriate ?only when electronic data is relatively inaccessible?? (citing Zubulake v. Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003)), that ?[d]ata may be described as ?inaccessible? due to an undue cost or burden associated with accessing the data,? and concluded that the ?emails in this case [were] readily available? and that the high costs of production were not associated with ?accessing or delivering the emails? but rather with counsel?s review for privilege which was more like attorney?s fees and thus the court denied the motion

Nature of Case: Personal Injury

Electronic Data Involved: Emails

In re Blue Cross Blue Shield Antitrust Litig., No. 2:13-CV-20000-RDP, 2015 WL 10891632 (N.D. Ala. Nov. 4, 2015)

Dec 01 2015

Key Insight: Court held that ?litigation/preservation holds and memoranda (at least in this case) issued by a corporate party to its employees for purpose of giving instruction and direction concerning documents and records to be preserved by those employees, even where that instruction arises from legal advice from counsel, are not shielded by the attorney-client privilege? and ordered production of certain litigation holds, including sections identifying the documents to be preserved, characterizing the litigation holds as ?managerial? and without the protection of attorney-client or work product privileges

Nature of Case: Antitrust

Electronic Data Involved: Litigation holds (i.e., legal holds, record holds)

L-3 Commcn?s Corp. v. Sparton Corp., 313 F.R.D. 661 (M.D. Fla. 2015)

Dec 01 2015

Key Insight: Court addressed topic of key word searching and sustained in part and overruled in part Defendant?s objections to the Magistrate Judge?s order to run all searches proposed by the Plaintiff where certain terms were vague or duplicative; court laid out framework for resolving disputes regarding search terms deemed overly burdensome, including a requirement that the parties confer in good faith before coming to the court

Nature of Case: Claims alleging defect in m

Electronic Data Involved: ESI (search terms at issue)

Dekeyser v. Thyssenkrupp Waupaca Inc., No. 08-c-0488, 2015 WL 10937559 (E.D. Wis. Apr. 10, 2015)

Dec 01 2015

Key Insight: Where Defendant initially produced material safety data sheets in TIFF format and later in hard copy but Plaintiff complained they were ?extremely difficult? to utilize because of the number of duplicates, the ?absence of organization? and the small font size (despite having relied upon the productions for purposes of summary judgment), court was swayed by Plaintiff?s expert?s articulation regarding the lack of burden rather than Defendant?s vague attestations of the burden of reproduction and, reasoning that Plaintiff had not produced all of the information requested in its initial production (e.g., certain data fields from the database in which the material safety data sheets were maintained) and that the prior productions were in a form that degraded searchability, ordered reproduction of the requested information i.e., ?all data and information maintained in [Defendant?s] databases relating to the MSDS and all data inputted by [Defendant] concerning the same, in an electronic, organized and usable format.?

Nature of Case: FLSA

Electronic Data Involved: Contents of database

United States v. Zaragoza-Moreira, 2015 WL 1219535 (C.A.9 (Cal.) Mar. 18, 2015)

Dec 01 2015

Key Insight: Court reversed and remanded case to the district court with directions to dismiss indictment in this criminal case after finding that Homeland Security Investigations agent acted in bad faith and in violation of defendant?s due process rights in failing to preserve video footage of defendant the agent knew to be of exculpatory value to the defendant, which the court found was established by a transcript of the agent?s interview with the defendant. The court also noted that the government?s failure to take action in response to a letter from defense counsel to the Assistant United States Attorney requesting preservation of the video tapes related to the defendant?s arrest or events leading to the arrest was ?particularly disturbing,? but declined to decide whether that failure also constituted bad faith given that they had already found bad faith on the part of the HSI agent.

Nature of Case: Criminal

Electronic Data Involved: Video footage

Document Security Systems, Inc. v. Coupons.com, Inc., 2015 WL 1189661 (W.D.N.Y. Mar. 16, 2015)

Dec 01 2015

Key Insight: Cost of converting native email and other native files into imaged format for purposes of production was one of many items considered by the court in defendant?s application for costs following grant of summary judgment. Despite plaintiffs argument that the requested expenses should only be approved if they pertain to documents actually produced to Plaintiff, court was satisfied with defendant?s explanation that the costs were ?actually and necessarily incurred in responding to the Plaintiff?s discovery demands? and allowed recovery of defendant?s tiffing costs, even though Defendant could not ?state with certainty whether every document that was converted was actually turned over to Plaintiff as being responsive to a particular demand.?

Nature of Case: Breach of contract

Electronic Data Involved: Imaged native files

O?Connor v. Newport Hosp., 2015 WL 1225683 (R.I., Mar. 17, 2015)

Dec 01 2015

Key Insight: Court vacated judgment in a medical malpractice case and remanded the case for a new trial where the trial justice admitted 3 exhibits without proper authentication, and exacerbated the error by allowing a biased, incorrect jury instruction which highlighted the information contained in the erroneously admitted exhibits, contributing to their prejudicial effect. Exhibits in question – whose purpose was to impeach plaintiff?s sole medical expert witness – were 2 printed versions of web pages, and a purported printout of an email, all of which were admitted over plaintiff?s objections after plaintiff?s expert witness was asked questions about their contents. With the record indicating no attempt to verify authenticity, no comments or findings from the justice with respect to authentication of any of the documents, nor indication on the record that defendant?s counsel made any representations to the trial justice regarding when or by whom the purported web page print outs were accessed and printed, the court concluded ?While we have not set a ?high hurdle to clear? with respect to authentication ? we hold that the trial justice abused his discretion by admitting exhibits A-C based solely on the brief testimony of one witness who was clearly unfamiliar with all three documents.?

Nature of Case: Medical malpractice

Electronic Data Involved: Email; Web page

Shaw v. Experian Info. Sol., Inc., 2015 WL 1260552 (S.D. Cal. Mar. 18, 2015)

Dec 01 2015

Key Insight: Court granted Plaintiffs? motion to compel production of defendant database records. Defendant argued that the harm to third parties from disclosure of personal information contained in the requested data outweighed the relevance of the information to plaintiffs? claim, and that the preparation, review, and production presented an undue burden. Finding that the requested data was highly relevant to the class certification requirements, the court concluded plaintiffs? need significantly outweighed privacy concerns given the option of producing subject to protective order and Plaintiffs? agreement to accept data with personal information redacted. Nor was the court persuaded by defendant?s burden argument, finding the estimate and explanation from plaintiffs? database consultant ?more persuasive, appropriate, and accurate? than that provided by defendant – particularly in light of modifications Plaintiffs made to their request after defendant clarified how the data was stored in their systems. The court also noted that defendant?s briefing failed to allege any facts supporting its assertion that the information was more readily available from other sources.

Nature of Case: Class Action; Violation of Fair Credit Reporting Act

Electronic Data Involved: Database

Archive - December 2015