December 1, 2016 – Page 11 – Electronic Discovery Law

Camesi v. Univ. of Pittsburgh Med. Ctr., —Fed. Appx.—, 2016 WL 7402982 (3d Cir. Mar. 21, 2016)

Dec 01 2016

Key Insight: Court indicated that it was “not readily apparent what ESI activities the charges at issue cover[ed], or how th[ose] activities constitute[d] either of the two applicable types of taxable costs identified in Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., 674 F.3d 158 (3d Cir. 2012) and, following an extensive discussion of the reasoning and findings in Race Tire, indicated that ?the highly technical nature of the services simply does not exempt parties who seek to recover their electronic discovery costs under ?1920(4) from showing that the costs fall within the subsection?s limited allowance for ?the cost of making copies of any materials?? and vacated and remanded the case, suggesting that the court consider an evidentiary hearing or taking additional evidence to make its decision

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: Taxable Costs

Accurso v. Infra-Red Servs., Inc., —F. Supp. 3d.—, 2016 WL 930686 (E.D. Pa. Mar. 11, 2016)

Dec 01 2016

Key Insight: Court denied motion for a negative inference for Plaintiff?s alleged deletion of emails evidencing Plaintiff?s intention of taking business from Defendants where Defendants provided no basis for the court to conclude: 1) that there was ?actual suppression or destruction of evidence, let alone that [Plaintiff] was responsible,? 2) that the evidence was not obtainable from other sources, or 3) that Defendant acted with the requisite intent to deprive under Fed. R. Civ. P. 37(e)

Nature of Case: Claims and counterclaims include: violations of Employee Polygraph Protection Act, breach of contract, intentional interference with contract, fraud, misappropriation of trade secrets

Electronic Data Involved: Emails

Moore v. Lowe?s Home Centers, LLC, No. 14-1459 RJB, 2016 WL 687111 (W.D. Wash. Feb. 19, 2016)

Dec 01 2016

Key Insight: Court declined to compel Defendant to conduct additional searches of witnesses? email accounts using 88 new search terms and excluding Plaintiff?s name finding that the request was ?overly broad and not proportional to the case? and reasoning that Plaintiff relied upon a multi-plaintiff case to justify her position and that she had not provided specifics regarding what she reasonably expected to find or shown that the information could not be found through other means, such as by asking additional questions of witnesses already scheduled for deposition ; court ordered Defendant to produce the relevant policies it operated under where Defendant claimed emails were deleted in the ordinary course of business according to Company policy, and that Defendant should also provide Plaintiff with the date of the deletion and the name of the person who made the deletion or the process of deletion, if known

Nature of Case: Wrongful termination

Electronic Data Involved: Email

Ye v. Veissman, Inc., No. 14-cv-01531, 2016 WL 950948 (N.D. Ill. Mar. 7, 2016)

Dec 01 2016

Key Insight: Where Defendants requested a full archive of social media contents from the decedent and her next of kin from 2007 through the date of Plaintiff?s death in April 2013, the court acknowledged that some social media content may be relevant to the claims and defenses at issue but found that where the request was not tailored to relevant content or limited to a reasonable period of time it was overbroad and Defendants? motion to compel was denied

Nature of Case: Wrongful death

Electronic Data Involved: Social media (Facebook)

Broadspring, Inc. v. Congoo, LLC, No. 13-cv-1866(RJS), 2016 WL 817449 (S.D.N.Y. Feb. 24, 2016)

Dec 01 2016

Key Insight: Allowing taxable costs for the conversion of native files to TIFF

Nature of Case: Defamation

Electronic Data Involved: Taxable costs

Wilmington Trust Co. v. AEP Generating Co., No. 2:13-cv-01213, 2016 WL 860693 (S.D. Ohio Mar. 7, 2016)

Dec 01 2016

Key Insight: Court granted in part Plaintiffs? motion to compel additional searching in two previously excluded timeframes, denying the motion as to documents generated at a time in which ?nothing of significance was happening? as indicated by Defendants and because the cost and burden of the requested discovery would violate the rule of proportionality but granting the motion as to information created after the filing of the complaint, where the court rejected Defendants? claim that nothing created after that time could have possibly been relevant and noted that Defendants failed to present any specific argument about undue burden, apart from having disassembled their review teams

Nature of Case: Breach of contract

Electronic Data Involved: ESI from previously unsearched timeframes

Magdaluyo v. MGM Grand Hotel, LLC, no. 2:14-cv-01806-RFB-GWF, 2016 WL 614397 (D. Nev. Feb. 16, 2016)

Dec 01 2016

Key Insight: Where Plaintiff specifically requested preservation of certain video that was not preserved, court concluded that Defendant ?simply ignored? the request and imposed an adverse inference that the video would have been favorable to Plaintiff; for Defendant?s failure to preserve surveillance video of alleged harassment for which there was no specific request to preserve, court reasoned that Defendant had a duty to investigate the allegation and preserve any video that existed of the incident and concluded that the jurors would be instructed that ?Defendant had a duty to preserve the video if it existed and that they may, but are not required to, infer that the video recording would have been favorable to the Plaintiff?

Nature of Case: Employment litigation (discrimination, harassment, etc.)

Electronic Data Involved: Video surveillance footage

Ericksen v. Kaplan Higher Ed., LLC, No. RDB-14-3106, 2016 WL 695789 (D. Md. Feb. 22, 2016)

Dec 01 2016

Key Insight: Where forensic examination revealed that immediately prior to that examination Plaintiff had run ?several ?optimizer? or ?data destruction programs?? that destroyed ?some data? the court found that Plaintiff acted willfully and, addressing Defendant?s request for dismissal, cited newly amended Rule 37(e) for the proposition that the ?Court need impose ?measures no greater than necessary to cure the prejudice?? and ordered that Plaintiff would be precluded for presenting evidence that Defendants?because of her actions?could not confirm as authentic but reasoned that dismissal was not necessary

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Lewis v. Bellows Falls Congregation of Jehovah?s Witnesses, No. 1:14-cv-205, 2016 WL 589867 (D. Vt. Feb. 11, 2016)

Dec 01 2016

Key Insight: Court granted motion to compel relevant contents of Plaintiff?s Facebook account but was not ?persuaded that unfettered access was warranted? and therefore ordered Plaintiff?s counsel to review Plaintiff?s ?entire Facebook account? to determine the relevance of the material therein, as determined by the court?s identification of 7 categories of relevant materials

Nature of Case: [N]egligence based on a duty (1) to perform an undertaking and (2) to supervise

Electronic Data Involved: Social Media contents (Facebook)

Theidon v. Harvard Univ., NO. 15-cv-10809-LTS, 2016 WL 447447 (D. Mass. Feb. 4, 2016)

Dec 01 2016

Key Insight: Where Defendant objected to the production of duplicate documents but agreed to provide a spreadsheet with metadata for every document and to produce duplicates identified by Plaintiff, court concluded that Plaintiff had not demonstrated that Defendant?s proposal was unreasonable and denied her motion to compel

Nature of Case: Denial of tenure based on gender discrimination and retaliation

Electronic Data Involved: ESI

Archive - December 1, 2016