December 1, 2016 – Page 7 – Electronic Discovery Law

Vaughan Co. v. Global Bio-Fules Tech. LLC, No. 1:12-CV-1292(DNH/DJS), 2016 WL 6605070 (N.D.N.Y. May 20, 2016)

Dec 01 2016

Key Insight: Court granted motion to compel inspection of Defendant?s personal computer that was utilized for business where Plaintiff established that relevant information was likely stored there, where the information was potentially ?critical? to Plaintiff?s case (regarding whether Defendant had utilized Plaintiff?s confidential information), where there was ?no other avenue? to obtain the requested discovery, where the costs did not appear substantial, where Plaintiff?s counsel made a good faith effort at alternative resolutions before brining the motion, and?notably?where Defendant had previously agreed to the inspection (but later objected); court also granted access to Defendant?s email accounts, including disclosure of his passwords; as to both repositories, court ordered the parties? to agree on a search protocol/search terms that included allowing Defendant to review the results of the search prior to production

Nature of Case: Defendant’s alleged use of Plaintiff’s confidential files to underbid Plaintiff on various projects

Electronic Data Involved: ESI, email

Bagley v. Yale Univ., No. 3:13-CV-1890 (CSH), 2016 WL 7407707 (D. Conn. Dec. 22, 2016)

Dec 01 2016

Key Insight: Court granted Plaintiff?s motion to compel production of litigation hold notices and related responses to a survey regarding recipients? computer use where, despite the absence of specific evidence of spoliation or a pending spoliation motion, the delayed (9-11 months) and rolling issuance of litigation holds was described by the court as ?leisurely, to an extent making it impossible to dismiss as frivolous [Plaintiff?s] suggestion that she might move for a spoliation sanction? and where the court reasoned that Plaintiff was ?entitled to discovery in these areas, in order to discern the merit or lack of merit of a formal claim for spoliation claim? [sic]; regarding assertions that the hold notices were privileged, the court reasoned that ?the predominant purpose of the communication was to give recipients forceful instructions about what they must do, rather than advice about what they might do?; court?s analysis included identification of six ?decisive questions? relevant to ?spoliation cases involving litigation hold notices? including, when the duty to preserve arose, whether litigation holds were issued, when they were issued, what they said, how recipients responded and what further action was taken beyond the litigation holds to preserve evidence

Nature of Case: Employment discrimination

Electronic Data Involved: Litigation Hold notices and survey to recipients regarding computer use

Scott v. United States Postal Serv., No. 15-712-BAJ-EWD, 2016 WL 7440468 (M.D. La. Dec. 27, 2016)

Dec 01 2016

Key Insight: Court compelled production of limited social media contents after narrowing the requests to a more appropriate scope

Nature of Case: Personal injury

Electronic Data Involved: Social media/social network contents

Archer v. York City Sch. Dist., No. 1:13-cv-2826, 2016 WL 7451562 (M.D. Pa. Dec. 28, 2016)

Dec 01 2016

Key Insight: Where Plaintiffs alleged spoliation resulting from school district?s deletion of former employee?s email account in accordance with its policy and more than 11 months before a complaint was filed, the court concluded that Plaintiffs presented ?no factual basis? in support of their allegations of intentional destruction of evidence favorable to Plaintiffs and declined to find that the school district?s decision not to renew the at-issue school?s charter was sufficient to trigger a duty to preserve such that the deletion would constitute spoliation (?Plaintiffs? argument that by the simple act of doing their jobs, Defendants should have been on notice of litigation that would not commence until nearly a full year later does not create knowledge that litigation is ?pending or probable.?)

Nature of Case: Claims arising from non-renewal of charter school’s charter

Electronic Data Involved: Former employee’s email account

In re Disposable Contact Lens AntiTrust Litig., No. 3:15-md-2626-J-20JRK, 2016 WL 6518660 (M.D. Fla. Nov. 1, 2016)

Dec 01 2016

Key Insight: Where the ?potential relevance? of the information sought was ?essentially undisputed,? but where Defendant claimed to have already spent $700,000 on discovery and that the request for 18 additional custodians could result in an expenditure of at least $1.5 million, court noted that the parties? dispute was essentially a question of proportionality and concluded a that two additional ?upper-management custodians? were warranted (as opposed to the seven requested) and also found that a sample of four sales manages was appropriate (as opposed to the eleven requested); as to Class Plaintiffs? request for a ?hit list? generated by applying the agreed-upon search terms to the collected materials, the court reasoned that in light of the number of custodians and the parties? agreement as to search terms, such a list seemed ?less valuable that it might otherwise be,? but ordered that if one was automatically generated, it should be produced

Nature of Case: Class Action

Electronic Data Involved: Additional Custodians

Moll v Telesector Res. Grp., Inc., No. 04-CV-0805S(Sr), 2016 WL 6095792 (W.D.N.Y. Oct. 19, 2016)

Dec 01 2016

Key Insight: Addressing Plaintiffs? objection to a request for, essentially, all of Plaintiff?s Facebook content, the court cited Giacchetto v. Patchogue-Medford Union Free School Dist., No. 293 F.R.D. 112 (E.D.N.Y. 2013) for the proposition that ?routine status updates and/or communications on social networking websites are not, as a general matter, relevant to [plaintiff?s] claim for emotional distress damages, nor are such communications likely to lead to the discovery of admissible evidence regarding the same,? but further reasoned that ?post specifically referencing? Plaintiff?s emotional distress or at-issue treatment were discoverable and should be produced

Nature of Case: Motion to compel in case alleging discrimination, harassment, hostile environment, retaliation and unequal pay in violation of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law and the Equal Pay Act

Electronic Data Involved: Social media/social network (Facebook)

Applebaum v. Target Corp., 831 F.3d 740 (6th Cir. 2016)

Dec 01 2016

Key Insight: In affirming the verdict of the trial court, the circuit court specifically indicated that the trial court did not err in refusing to give an adverse inference instruction and in its analysis recognized recent amendments to Rule 37(e): ?It bears adding that to the extent Applebaum sought an adverse inference instruction for spoliation of electronic information, a 2015 amendment to Civil Rule 37(e)(2) required her to show that Target had ?intent? to deprive her of the information?s use. A showing of negligence or even gross negligence will not do the trick. Fed. R. Civ. P. 37, 2015 Advisory Comm. Note. Applebaum would not have been able to show any degree of fault for Target?s alleged destruction of records, because she cannot show that Target destroyed the records?if they even existed in the first place?after it was put on notice of litigation.?

Nature of Case: Products Liability

Electronic Data Involved: ESI

Alaska Elec. Pension Fund v. Bank of Am. Corp., No. 14-CV-7126 (JMF), 2016 WL 6779901 (S.D.N.Y. Nov. 16, 2016)

Dec 01 2016

Key Insight: Plaintiffs? broad request for documents previously produced by Defendants in prior investigations or produced to or received from any government agency, regulator, department, etc. related to the issues in the current investigation failed to withstand scrutiny to establish relevance beyond merely ?bear[ing] on? the issues in the investigation, particularly where Plaintiffs failed to point to any specific information that that would be found solely in the unproduced documents and not in the 1.5 million documents Defendants did produce from prior investigations (?At bottom, then, Plaintiffs? entire relevancy argument hinges on a general contention that every communication and work product related to the regulatory investigations is ?likely? to contain additional relevant information. But that sort of conclusory claim is insufficient to support such an expansive discovery request.?); court also concluded that the requested discovery was not proportional, but denied the motion without prejudice, allowing plaintiff an opportunity to renew their motion with ?narrower, more proper discovery requests.?

Nature of Case: Conspiracy to manipulate ISDAfix rates (government investigation)

Electronic Data Involved: ESI previously produced to government, all documents sent to/received from government related to issues in underlying investigation (including correspondence, subpoenas, CIDs, etc.)

Shaffer v. Gaither, No. 5:14-cv-00106-MOC-DSC (W.D.N.C. Sept. 1, 2016)

Dec 01 2016

Key Insight: Court found dismissal was a disproportionate sanction for failure to preserve text messages lost when phone was dropped and broken but did conclude that Plaintiff and her counsel failed to take ?reasonable steps to preserve? those texts which resided only on Plaintiff?s phone, reasoning that ?[o]nce it is clear that a litigant has ESI that is relevant to reasonably anticipated litigation, steps should be taken to preserve that material, such as printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one?; court indicated defendant would be free to examine witnesses who had read the texts and explore the circumstances surrounding their destruction and further indicated that the court had not ruled out a spoliation instruction, an option reserved until after the court heard the evidence at trial

Nature of Case: Employment litigation

Electronic Data Involved: Explicit text messages

Terral v. Ducote, No. 15-2366, 2016 WL 5017328 (W.D. La. Sept. 19, 2016)

Dec 01 2016

Key Insight: Where pro se prisoner sought production of video footage of the alleged use of excessive force but failed to request the video or file a grievance for 30 days and the tape was recorded over, the court found that Plaintiff had failed to demonstrate that Defendant had not taken reasonable steps to preserve the footage or that Defendant acted with the intent to deprive and denied the motion for sanctions

Nature of Case: Pro se prisoner defendant, excessive force

Electronic Data Involved: Video footage

Archive - December 1, 2016