December 1, 2016 – Page 6 – Electronic Discovery Law

Carlson v. Jarousek, No. 2-15-1248, 20167243557 (Ill. App. Ct. Dec. 21, 2016)

Dec 01 2016

Key Insight: In personal injury case, the trial court abused its discretion by ordering forensic imaging of ALL of Plaintiff?s devices, including his work computer which was owned by his employer, where, among other things, the appellate court determined that such a request ran ?counter to the traditional protocol of discovery, in which one party requests specific information and the other party searches its own files (and computers) to identify and produce responsive information?; where the computer was not directly involved in the cause of action; where there was no evidence of prior discovery violations; and where ?careful consideration of relevance and proportionality reveal[ed] that forensic imaging was not justified in this case? including because there were ?ample? alternative avenues for discovery (e.g, requests for admission, depositions) and because much of the information sought fell within the categories of ESI identified in Illinois to be presumptively not discoverable; the court also addressed Plaintiff?s privacy concerns

Nature of Case: Personal injury (appeal)

Electronic Data Involved: Forensic imaging of computers (including work computer)

Westmoreland v. Wells Fargo Bank Nw., N.A., No. 1:15-cv-00312-CWD, 2016 WL 6471433 (D. Idaho Oct. 31, 2016)

Dec 01 2016

Key Insight: Defendant sought to compel the return of Plaintiff?s company-issued laptop in order to obtain its contents; production of all emails sent by Plaintiff?s counsel to a joint email account shared by Plaintiff and her husband; as well as an additional search of Plaintiff?s Facebook account. Because it became clear that neither party had accessed the laptop during the litigation but that both parties were interested in its contents, the Court ordered that imaging and retrieval would be conducted by an agreed upon third party but, recognizing Defendant?s security concerns, allowed a representative to be present for the process. The Court denied Defendant?s motion to compel production of emails that Plaintiff?s counsel sent to a joint email account accessible by both Plaintiff and her husband, indicating that Defendant had not shown that Plaintiff waived attorney-client privilege regarding the communications with her counsel by having the emails sent to a shared email account and citing marital privilege. The Court denied the motion requesting a third search of Plaintiff?s Facebook messages, indicating that the messages produced to date were satisfactory and that the time and cost of an additional search was not ?proportional to the needs of this litigation.?

Nature of Case: Employment discrimination

Electronic Data Involved: Company-issued laptop, emails, social media (social network)

Flowrider Surf, Ltd. v. Pacific Surf Designs, Inc., No. 15cv1879-BEN (BLM), 2016 WL 6522807 (S.D. Cal. Nov. 3, 2016)

Dec 01 2016

Key Insight: The parties in this case agreed to produce ESI ?in accordance with the Southern District?s Order Governing Discovery of Electronically Stored Information.? Defendant sought production of all documents that ??hit? on the parties? agreed-upon search terms without further relevance review,? arguing that the terms were narrowly tailored and that any resulting hits were ?presumptively relevant and responsive.? Plaintiffs argued that Defendant?s interpretation of the order was contrary to law and conflicted with the language of Fed. R. Civ. P. 26(b)(1), among other things. Citing a declaration from Plaintiff?s CEO that the search hits, which for some terms numbered in the thousands or tens of thousands, contained a substantial number of irrelevant documents, the court agreed that ?culling for relevance [was] warranted.?

Nature of Case: Patent Infringement

Electronic Data Involved: ESI (search hits)

Orologio of Short Hills Inc. v Swatch Grp. (U.S.) Inc., 653 Fed. Appx. 134 (3rd Cir. 2016)

Dec 01 2016

Key Insight: Court affirmed District Court?s denial of Plaintiff?s motion to strike Defendant?s answer and issue sanctions on alleged spoliation, absent a finding that the hard-copy tapes at issue were destroyed in bad faith. The evidence in the record indicated the tapes were destroyed for the sole reason that the Defendant did not wish to pay a storage fee for the tapes; there was no reference to the litigation in the emails regarding the destruction.

Nature of Case: Alleged violations of Robinson Patman Act and NJ Franchise Practices Act

Electronic Data Involved: Hard-copy tapes containing “tagged television commercials”

Boyington v Percheron Field Servs., LLC, No. 3:14-CV-90, 2016 WL 6068813 (W.D. Pa. Oct. 14, 2016)

Dec 01 2016

Key Insight: Plaintiffs sought to compel production of all emails sent to or from any of the Plaintiffs through a Percheron account. The Court found the emails were relevant because they may shed light on informal work policies, hours worked, and serve as a potential cross-reference to the other records kept by Defendant. Analyzing proportionality, the Court concluded that the importance of the issues (to the Plaintiffs), the amount in controversy (alleged to be ?in excess of several million dollars?), the resources of the parties, the parties? relative access to the information and the importance of the discovery in resolving the issues weighed in favor of Plaintiffs/production. Regarding whether the burden of discovery outweighed the benefit, the Court acknowledged Defendant?s claim that the review ?would likely cost $735,000-$798,964 and take a team of 20 attorneys 12 weeks to complete,? but reasoned that the Court?s refusal to compel production of certain email categories would lessen the estimated costs and that Defendant?s inability to provide certain data had caused Plaintiffs to have to ?puzzle together damages? and concluded that the request did not ?run afoul? of proportionality. The court also relied on Defendants prior agreement to produce the emails. Addressing Plaintiffs? motion to compel information regarding Defendant?s preservation efforts, the court ordered production of the names of those that received litigation holds and related information, but declined to order the litigation holds themselves.

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: Emails, Information re: litigation hold notices

Sweltic Chiropractic & Rehab. Ctr, Inc. v. Foot Levelers, Inc., No. 2:16-cv-236, 2016 WL 1657922 (S.D. Ohio Apr. 27, 2016)

Dec 01 2016

Key Insight: Where third party refused to preserve potentially relevant evidence absent a court order and maintained a retention policy that would result in the automatic deletion of the at-issue information, court granted in part Plaintiff?s motion to compel preservation (finding that the requested scope of preservation appeared overly broad) but declined to compel forensic imaging

Nature of Case: Telephone Consumer Protection Act

Electronic Data Involved: Fax transmission reports and other ESI identifying fax numbers that received advertisements

Thurmond v Bowman, No. 14-CV-6465W, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016)

Dec 01 2016

Key Insight: Where Defendants sought spoliation sanctions for Plaintiff?s alleged deletion of social media postings that Defense counsel claimed had disappeared from the relevant account, the evidence indicated that the majority of those posts were merely hidden as the result of Plaintiff?s modification of her security settings and the court noted that the three posts that were missing ?did not seem relevant? and concluded that spoliation sanctions were not warranted; court?s analysis included disagreement with the argument that ?the entirety of a plaintiff?s social media account is per se relevant to any claim for emotional distress damages,? and concluded that the contention that sanctions were warranted for the deletion of any Facebook post swept ?far too broadly?

Nature of Case: Housing discrimination

Electronic Data Involved: facebook (social media / social network)

United States v. Lewisby, 843 F.3d 653 (7th Cir. 2016)

Dec 01 2016

Key Insight: Circuit Court found no abuse of discretion in admission of text messages where statements were not hearsay and where evidence established phones belonged to defendant sufficient to support a finding that the messages were sent and received by Defendant; Facebook messages also were not hearsay and were authenticated by Defendant?s admission that the posts were his and evidence of his ownership, including use of his nickname, date of birth, etc.

Nature of Case: Criminal

Electronic Data Involved: Text messages, Facebook (social network / social media)

Glob. Materials Techs., Inc. v. Dazheng Metal Fibre Co. Ltd., No. 12 CV 1851, 2016 WL 4765689 (N.D. Ill. Sept. 13, 2016)

Dec 01 2016

Key Insight: Where the court concluded that Defendants deliberately failed to preserve evidence ?in order to prevent [Plaintiff] from obtaining the evidence and using it against defendants in litigation? (e.g., by liquidating computers and delaying accessing an email account until emails were deleted by the provider) and lied to the court and to the plaintiff (?Defendants were not merely dilatory or misleading in their litigation tactics; they were affirmatively deceitful?), the court reasoned that while an adverse inference or prohibition on introducing certain evidence may ?level the playing field? it would not sufficiently punish Defendants for their dishonesty, and therefore imposed default judgment as to liability (damages remained to be proven); court?s analysis noted that under Fed. R. Civ. P. 37(e)(2) a specific finding of prejudice is not required where the finding of intent supports the inference that the missing information was unfavorable to the party who destroyed it

Nature of Case: Trade secrets

Electronic Data Involved: Computers, emails

Virtual Studios, Inc. v. Stanton Carpet, Corp., No. 4:15-CV-0070, 2016 WL 5339601 (N.D. Ga. June 23, 2016)

Dec 01 2016

Key Insight: Where the court acknowledged that after a duty to preserve arose in 2009 Plaintiff ?did little, if anything, to prevent the loss of emails,? including failing to instruct employees to retain relevant documents and emails and failing to backup emails stored on employees individual hard drives, but where Defendant failed to establish bad faith or an intent to deprive, the court declined to impose an adverse inference or other serious sanctions pursuant to Rule 37(e)(2) but, upon finding that the loss of emails was prejudicial to Defendant (where the parties offered competing narratives regarding whether Defendant was informed regarding Plaintiff?s limitations on the use of its images), ordered that the defendant ?may introduce evidence concerning the loss of the e-mails and may make an argument to the jury concerning the effect of the loss of the e-mails?

Nature of Case: Copyright infringement

Electronic Data Involved: Emails

Archive - December 1, 2016