December 1, 2016 – Page 12 – Electronic Discovery Law

Marten Transp. Ltd. v. Platform Advertising, Inc., No. 14-cv-02464-JWL-TJJ, 2016 WL 492743 (D. Kan. Feb. 8, 2016)

Dec 01 2016

Key Insight: Court denied motion for spoliation sanctions where, although a general duty to preserve arose in 2013, the duty to preserve the internet history of the at-issue employee did not arise until June 2015, which was after the employee had been moved to a different work station

Nature of Case: Trademark infringement, unfair competition

Electronic Data Involved: Internet history

Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2015 WL 5027899 (E.D.N.Y. Aug. 25, 2015); Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2016 WL 128154 (E.D.N.Y. Jan. 12, 2016)

Dec 01 2016

Key Insight: Addressing motion for sanctions for the loss of emails in third party custody (GoDaddy), Iron Mountain back ups, and miscellaneous computer files, the Magistrate Judge concluded: 1)that Exeter had a duty preserve reasoning that since 2009 it had been involved in other litigation involving the disclosure of its books, records and financial documents, and that Exeter therefore knew or should have known that the documents ?could be relevant to future litigation? and also found that even if the filing of the 2009 lawsuit (involving different parties) did not trigger the preservation obligation, receipt of a 2009 subpoena should have and that in any event, the duty to preserve arose no later than Exeter?s 2011 bankruptcy filing; 2)that Exeter?s loss of ESI was ?intentional and done in bad faith? absent evidence of any effort to ensure preservation or to contact the third-party providers to inform them of the duty; and 3) that as a result of the intentional loss, a presumption of relevance was warranted and therefore recommended a sanction of an permissive adverse inference at trial; upon Exeter?s objection, District Court adopted the sanctions recommendation entirely and indicated that ?[W]hen there has been intentional destruction of evidence by an officer of a closely held corporation, other officers of the closely held entity may be subject to sanctions, even if they did not have direct control of the evidence at issue.?

Nature of Case: Plaintiff claims that Defendants defrauded Exeter?s creditors by transferring funds from Exeter to themselves, certain trusts, and other entities.

Electronic Data Involved: Email in third-party custody, Iron Mountain backups, miscelaneous ESI

Spear Mktg., Inc. v. Bancorpsouth Bank, No. 3:12-CV-3583-B, 2016 WL 193586 (N.D. Tex. Jan. 14, 2016)

Dec 01 2016

Key Insight: Court allowed Defendant to recover electronic conversion costs where conversions were undertaken to meet discovery requests of Plaintiff

Nature of Case: Theft of trade secrets

Electronic Data Involved: Taxable costs related to e-Discovery

Intercontinental Great Brands, LLC v. Kellog N.A. Co., No. 13 C 321, 2016 WL 316865 (N.D. Ill. Jan. 26, 2016)

Dec 01 2016

Key Insight: Court declined to allow costs for OCR, ?concordance hosting,? ??volume mastering,? ?unitization,? ?document imaging,? ?CD duplication,? and ?media formatting,?? but did allow costs associated with TIFF and PDF conversion

Nature of Case: Patent

Electronic Data Involved: Taxable Costs related to e-Discovery

Procaps S.A. v. Patheon, Inc., NO. 12-24356-CIV-GOODMAN, 2016 WL 411017 (S.D. Fla. Feb. 2, 2016)

Dec 01 2016

Key Insight: Addressing taxable costs for electronic discovery, the court acknowledged the lack of any ?on-point Eleventh Circuit law? and deemed CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320, 1325 (Fed. Cir. 2013) ?to be the most persuasive circuit court opinion on the issue?; where even CBT Flint Partners LLC did not address costs related to OCR, however, the court indicated it would ?follow the fundamental principle that the costs statute is ?modest? and ?narrow? and ?limited to minor, incidental expenses? and excluded OCR costs from Defendant?s costs request

Nature of Case: Antitrust

Electronic Data Involved: Taxable costs for electronic discovery

Mathur v. Hospitality Props. Trust, No. 13-cv-7206, 2016 WL 520999 (N.D. Ill. Feb. 10, 2016)

Dec 01 2016

Key Insight: Addressing Plaintiff?s claim that defendant?s duty to preserve surveillance footage was triggered by the fact that it knew Defendant was robbed in its hotel, that the police were involved, and that both the police and Defendants ?were using the footage to investigate the incident? (perhaps evidenced by the preservation of different footage at the request of police), the court reasoned that ??mere knowledge of the accident and the possible causes of the accident? is not enough to create a duty to preserve evidence? and found that defendant?s spoliation claim failed

Nature of Case: Claims arising from robbery of hotel guest

Electronic Data Involved: Surveillance footage

Benefield v. MStreet Entm?t, LLC, No. 3:13-cv-1000, 2016 WL 374568 (M.D. Tenn. Feb. 1, 2016)

Dec 01 2016

Key Insight: Where, despite a request from Plaintiff?s counsel to preserve all communications between plaintiff and defendants or their employees AND Defendants? OWN REQUEST that Plaintiff preserve information from her cellular phones, Defendants failed to preserve potentially relevant text messages, the court rejected defendants? arguments that ?due to the nature of text message communications and the cellular devices they are stored on?a requirement to preserve text messages from private cellular phones is unduly burdensome and an invasion of privacy? and found that the messages should have been preserved and indicated that a ?spoliation instruction to the jury? would be given at trial but declined to preclude defendants? reliance on plaintiff?s text messages at trial or to order defendants to pay fees and cost associated with the extraction of plaintiffs? text messages from her own phone

Nature of Case: Employment

Electronic Data Involved: Text messages

McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., No. 3:14-cv-2498-B, 2016 WL 98603 (N.D. Tex. Jan. 8, 2016)

Dec 01 2016

Key Insight: In this case, the court addressed Plaintiff?s motion to compel ?the production and organization of certain documents and metadata? and considered the applicability of Fed. R. Civ. P. 34(b)(2)(E)(i) and (ii) to the production of electronically stored information. Ultimately, ?[t]he Court [found] persuasive the analysis that, where Rule 34(b)(2)(E)(i) addresses the organization of a production and Rule 34(b)(2)(E)(ii) specifically addresses the form for producing ESI (where form of production is inherently not an issue with hard-copy documents), and in light of the purposes of the 2006 amendments to Rule 34 and of Rule 34(b)(2)(E)(i)?s requirements, Rules 34(b)(2)(E)(i) and 34(b)(2)(E)(ii) should both apply to ESI productions.?

Nature of Case: Breach of commercial lease agreement

Electronic Data Involved: ESI

Stinson v. City of New York, No. 10 Civ. 4228(RWS), 2016 WL 54684 (S.D.N.Y. Jan. 5, 2016)

Dec 01 2016

Key Insight: Court found Defendants? discovery failures, including failing to implement a litigation hold for three years, failing to adequately communicate the hold, and failure to ensure compliance with the litigation hold were grossly negligent and imposed a permissive adverse inference as a sanction; court?s analysis included the admonition that ?the reasonableness or unreasonableness of one party?s demands does not determine the scope of the other party?s obligation to preserve documents?

Nature of Case: Class action civil rights

Electronic Data Involved: ESI: email, text messages, har copy

Hausman v. Holland Am. Line-U.S.A., No. CV13-0937 BJR, 2015 WL 51273 (W.D. Wash. Jan. 5, 2016)

Dec 01 2016

Key Insight: Judgment vacated and new trial ordered for deliberate spoliation of relevant emails revealed by credible witness after original trial

Nature of Case: Personal injury

Electronic Data Involved: Emails

Archive - December 1, 2016