May 2016 – Electronic Discovery Law

Plaintiff’s “Lackadaisical attitude towards document preservation” Results in Prejudice to Defendant, Sanctions

May 31 2016

Mathew Enter., Inc. v. Chrysler Grp. LLC, No. 13-cv-04236-BLF, 2016 WL 2957133 (N.D. Cal. May 23, 2016)

The rules governing parties’ duties to preserve data do not demand perfection. Only when a party should have preserved electronically stored information “in the anticipation or conduct of litigation” and when that party “failed to take reasonable steps to preserve it” may a court order corrective measures. The standard is an attainable one.

Applying newly-amended Rule 37(e) (which “now provides a genuine safe harbor for those parties that take ‘reasonable steps’ to preserve their [ESI]”) the court concluded that Defendant was prejudiced by Plaintiff’s failure to preserve customer communications and imposed curative measures.

Al-Ameri v. Johns Hopkins Hospital (D. Md. , 2016)

May 26 2016

Key Insight: cant compel production of overseas medical records not in plaintiff’s possession

Nature of Case: medical malpractice, failure to warn

Electronic Data Involved: medical documents

Keywords: UAE patient cant get lien records from overseas entities

View Case Opinion

Owen v. Cigna, No. 1:15-cv-9880, 188 F.Supp.3d 790 (N.D. Ill. May 25, 2016)

May 25 2016

Key Insight: Plaintiff alleges Defendant accessed personal email on her former work computer. Court only allowed Stored Communications Act claim to move forward to discovery.

Nature of Case: Federal Wiretap Act, Computer Fraud and Abuse Act,

Electronic Data Involved: Personal Email Account on Work Computer, Stored Communications Act

Keywords: email access; personal email

View Case Opinion

Flagship Theatres of Palm Desert v. Century Theatres (California, 2016)

May 24 2016

Key Insight: Deletion of emails at recommendation of email provider is not deletion with intent to destroy evidence, therefore terminating sanctions are overbroad

Nature of Case: Antitrust

Electronic Data Involved: Deleted emails

Keywords: Theatres, Cinemark, terminating sanctions, Bryan Cranston

View Case Opinion

Once Again, UK Court Approves Use of Predictive Coding

May 23 2016

It seems that predictive coding may be catching on in the UK. Not long ago, the English High Court approved the use of predictive coding for the first time in Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (Ch). In that case, the parties agreed to the use of predictive coding software and merely sought approval from the court. Now, The Lawyer (registration required) reports that the High Court has once again weighed in on the issue, this time to approve the use of predictive coding despite the apparent objection of at least one party. This is the first time such an order has been granted. While the details of the order and underlying disagreement have yet to be revealed, the result bodes well for parties seeking to rely on such technology in future.

Stay tuned to this space for more information as it becomes available.

Matthew Enterprise, Inc. v. Chrysler Group LLC, No. 13-cv-04236-BLF (N.D. Cal. May 23, 2016).

May 23 2016

Key Insight: Plaintiff threatened legal action, but failed to have it’s vendor stop automatic deletion and did not preserve recrods when email system changed. Defendant was prejudiced by this spoilation. Court allowed witnesses to testify to spoilation and potential contents of those communications.

Nature of Case: incentive programs and Robinson-Patman Act violations

Electronic Data Involved: internal and external communications

Keywords: spoilation; vendor

View Case Opinion

Citing Restoration and Production of Deleted Emails, Court Denies Sanctions

May 17 2016

FiTeq Inc. v. Venture Corp., No. 13-cv-01946-BLF, 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016)

In this case, the court denied Plaintiff’s motion to “instruct jurors that they may presume Venture carried out or allowed the destruction of relevant evidence favorable to FiTeq” despite an executive’s deletion of potentially relevant emails where the messages were eventually recovered and produced and where Plaintiff failed to prove that other responsive documents existed or to establish that the ESI was not restored or replaced.

In re Bridge Construction Services of Florida, Inc., No. 12-cv-3536 (S.D.N.Y. May 12, 2016).

May 12 2016

Key Insight: Adverse inference granted where physical evidence was lost.

Nature of Case: Marine

Electronic Data Involved: notebook/logbook

Keywords: adverse inference

Court Orders Production of “Download Your Info” Report from Facebook

May 11 2016

Rhone v. Schneider Nat’l Carriers, Inc., No. 4:15-cv-01096-NCC, 2016 WL 1594453 (E.D. Mo. Apr. 21, 2016)

In this personal injury case, the court ordered Plaintiff to produce a “Download Your Info” report from Facebook, spanning from the date of the at-issue incident (June 2, 2014) through the present. Per Facebook’s Help Center (last accessed May 10, 2016) a report contains 70 categories of information, including: About Me, Chat (history), Friends, Followers, Logins, Logouts, Messages, Photos, Photos Metadata, Posts by You, Posts by Others, Post to Others, Removed Friends, Searches, Shares, Status Updates, and Videos.

Archive - May 2016