2016 – Page 21 – Electronic Discovery Law

Finding Application of Recently-Amended Rule 37(e) “Neither Unjust Nor Impractical,” Court Imposes Adverse Inference

Apr 13 2016

Brown Jordan Int’l, Inc. v. Carmicle, Nos. 0:14-CV-60629, 0:14-CV-61415, 2016 WL 815827 (S.D. Fla. Mar. 2, 2016)

In this case, the court heard argument regarding Defendant’s alleged spoliation in October, 2015—before amendments to the Rules of Civil Procedure went into effect—and deferred ruling on the motion until the end of trial. The amendments became effective “shortly after trial concluded.” Upon determining that “applying the new version of Rule 37(e) would be neither unjust nor impractical,” the court found that Defendant failed to take reasonable steps to preserve the information at-issue, despite a duty to do so; that the lost information could not be restored or replaced through additional discovery; and that Defendant acted with the intent to deprive Plaintiffs of the information’s use in the litigation. Accordingly, the court presumed that the lost information was unfavorable to the defendant. The court also noted that the sanction would be appropriate under prior standards, specifically pursuant to the court’s inherent authority to sanction a party’s bad faith litigation conduct.

Vay v. Huston (WDPa, 2016)

Apr 11 2016

Key Insight: Defendant alleges Plaintiff failed to produce documents and requests sanctions, including dismissal.

Nature of Case: Employment discrimination

Electronic Data Involved: ESI and scanned PDF documents and other documents.

Keywords: Proportionality, motion to compel (not filed)

View Case Opinion

Coale v. Metro-North Railroad Co., No. 08-cv-01307 (D.Conn. Apr. 11, 2016).

Apr 11 2016

Key Insight: Court concluded defendant had duty to preserve oily substance and was negligent in doing so. Permissive adverse inference instruction granted.

Nature of Case: personal injury

Electronic Data Involved: oily substance plaintiff slipped on

Keywords: adverse inference;

View Case Opinion

Update: CAT3 Dismissed, Along with Motion for Sanctions

Apr 08 2016

CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (S.D.N.Y. Apr. 4, 2016)

On April 4, the parties in this case stipulated to dismissal, with prejudice, of all remaining claims in the case and Defendants have withdrawn their motion for sanctions and acknowledged that, in light of “various evidence” provided by Plaintiffs, “neither Plaintiffs nor any of their owners or agents engaged in any discovery misconduct or wrongdoing . . . .”

A copy of the Joint Stipulation is available here.

Click here to read the original case summary addressing the application of recently-amended Fed. R. Civ. P. 37(e).

Spring v. Board of Trustees of Cape Fear Community College (S.D. Ind., 2016)

Apr 07 2016

Key Insight: not ordered to reproduce production of documents in native format (with metadata) but only categories specifically requested by plaintiff

Nature of Case: wrongful termination – contract

Electronic Data Involved: email

Keywords: native format

View Case Opinion

UPCOMING EVENT: RULES AMENDMENTS ROADSHOW

Apr 05 2016

Hello “Proportionality,” Goodbye “Reasonably Calculated”: Reinventing Case Management and Discovery Under the 2015 Civil Rules Amendments

Presented by: the ABA Section of Litigation & Duke Law

Join us in Seattle on April 29, 2016

The most significant changes to discovery and case management practices in more than a decade, the 2015 Amendments to Federal Rules of Civil Procedure 16, 26, 34 and 37, took effect on December 1, 2015. The American Bar Association Section of Litigation and the Duke Law Center for Judicial Studies are jointly presenting this unprecedented, 18-city series of dialogues, led by national thought leaders and including local judges, magistrates, and top practitioners in each city. The goal: to further the understanding of the case-management techniques that will help courts and litigants realize the Amendments’ full potential to make discovery more targeted, less expensive, and more effective in achieving justice.

Based on local requests, this popular program has been expanded from the original 13-city tour to 18. Each three-hour program features leaders from the Rules amendment process, who walk the audience through the Amendments and their implications for civil litigation. Spirited panel discussions among local District Court Judges, Magistrate Judges, and leading litigators then explore the Amendments’ practical discovery implications and best practices for case management under the amended Rules. Each program’s attendees discuss application of the new rules to a variety of hypothetical cases and leave with a toolbox of techniques for putting the Amendments into practice.

Relevance “Not Good Enough” Says Court Granting Motion for Protective Order

Apr 05 2016

Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., No. 1:14-cv-01734-WTL-DML, 2016 WL 1162553 (S.D. Ind. Mar. 24, 2016)

In this case, the court granted Plaintiff’s motion for a protective order and ordered that Defendant was prohibited from obtaining the discovery sought from Plaintiff’s shareholder by the at-issue subpoenas. In reaching its conclusion, the court undertook analysis of recently-amended Fed. R. Civ. P. 26(b)(1), highlighting the principle of proportionality, and ultimately concluded that Defendant’s subpoenas constituted “discovery run amok” and “fail[ed] the proportionality test under Rule 26(b).”

In re Eisenstein (Supreme Court of Mo., 2016)

Apr 05 2016

Key Insight: Concealment and use of electronic evidence improperly obtained by a client.

Nature of Case: Divorce.

Electronic Data Involved: Email, hacked and stolen from the wife’s private email account.

Keywords: Unwarranted intrusions into privileged relationships. Stolen evidence.

Identified State Rule(s): 4-4.4(a); 4-8.4(c); 4-3.4(a)

Brackett v. Stellar Recovery, Inc. (E.D. Tennesee, 2016)

Apr 04 2016

Key Insight: No sanctions when electronically stored information is lost during ordinary course of business.

Nature of Case: Sanctions

Electronic Data Involved: electronically stored information

Keywords: Safe harbor, Rule 37(e), good faith, normal course of business, spoiliation

View Case Opinion

McIntosh v. USA (SDNY, 2016)

Mar 31 2016

Key Insight: Plaintiff unsuccessfully seeks injunction to prevent destruction of certain evidence. Defendants argued that sanctions would be inappropriate and no spoliation had occurred.

Nature of Case: Inmate pro se plaintiff asserts a host of constitutional violations against the U.S. and individual prison personnel.

Electronic Data Involved: Deleted video footage.

Keywords: Failure to preserve, destruction of evidence, spoliation, adverse inference.

View Case Opinion

Archive - 2016