January 2017 – Electronic Discovery Law

Despite Failure to Employ “Best Practices,” Lack of Sufficient Prejudice Results in Lesser Sanctions

Jan 31 2017

F.T.C. v. DirecTV, Inc., Case No. 15-cv-01129-HSG (MEJ), 2016 WL 7386133 (N.D. Cal. Dec. 21, 2016)

In this case, the Court addressed Plaintiff’s motion for sanctions under Fed. R. Civ. P. 37(e)(1) but, despite acknowledging that Defendant “could have been more forthcoming in its disclosures to the FTC, and/or more proactive in its preservation efforts,” declined to grant the request to exclude evidence, including Defendant’s expert’s report, absent a showing of sufficient prejudice. Instead, the Court ordered Defendant to make its expert available for a 4-hour deposition, should Plaintiff find it useful.

Patrick v. Tractor Supply, Co., No. 16-10755, 2017 WL 396301 (E.D. La. Jan. 30, 2017)

Jan 30 2017

Key Insight: Trial court exercises discretion to impose sanctions (no Rule 37(e) used), no bad faith found when requesting footage of the incident where footage surrounding the incident was deleted due to normal retention policies (negligence at best)

Nature of Case: Personal injury (slip and fall)

Electronic Data Involved: Store video footage

Keywords: slip and fall, constructive notice, cable wire, summary judgment

View Case Opinion

Wali Muhammad v. Mathena, No. 7:14CV00529, 2017 WL 3955225 (W.D. Va. Jan. 27, 2017)

Jan 27 2017

Key Insight: intentional destruction of surveillance camera footage

Nature of Case: prisoner civil rights action

Electronic Data Involved: surveillance camera footage

Keywords: spoliation

View Case Opinion

Vir2us, Inc. v. Invincea, Inc. (E.D. Va., 2017)

Jan 27 2017

Key Insight: inadequate search and production, misrepresentation, failure to supplement, follow-up, failure to disclose

Nature of Case: patent infringement

Electronic Data Involved: email, board meeting minutes, investor presentations

Keywords: monetary sanctions, needless burden, late disclosures, post-settlement order, misrepresentation, motion to show cause

View Case Opinion

Regeneron Pharmaceuticals v. Merus (Fed. Cir., 2017)

Jan 27 2017

Key Insight: The court inferred from plaintiff’s improper discovery conduct, hiding documents, privilege problems, etc, into the main case as evidence that the plaintiffs were untrustworthy.

Nature of Case: Patent infringement

Electronic Data Involved: Multiple types of scientific documents, charts, business papers, etc.

Keywords: Spoliation, privilege log, uncooperative discovery, inequitable conduct, litigation misconduct

View Case Opinion

Martinz v. Salazar (District of New Mexico, 2017)

Jan 26 2017

Key Insight: Even with a litigation hold, if a party would have made no efforts to obtain a serial number, bad faith is not found. Sloppy paperwork may be considered gross negligence in a totality of the circumstances. Rule 37(e) was not used.

Nature of Case: Excessive police force

Electronic Data Involved: Electronic data (Taser usage records)

Keywords: taser, cartridge, serial number, spoliation

Hibbett Patient Care, LLC v. Pharmacists Mut. Ins. Co., No. CA 16-00231-WS-C (S.D. Ala. Jan. 26, 2017).

Jan 26 2017

Key Insight: Plaintiff requested information related to outside counsel’s evaluation of claims. Court granted, but limited original request.

Nature of Case: Insurance breach of contract and bad faith

Electronic Data Involved: Various documents related to claims investigations; primarily related to outside counsel evaluations.

Keywords: scope; outside counsel; evaluation of claim

View Case Opinion

Morrison v. Veale, M.D., No. 3:14-cv-1020-TFM, 2017 WL 372980 (M.D. Ala. Jan. 25, 2017)

Jan 25 2017

Key Insight: Spoliation of evidence via a mobile device. Case filed prior to new Rule 37(e) enactment, so, rule does not apply.

Nature of Case: Fair Labor Standards Act violation

Electronic Data Involved: e-mail account records

Keywords: “old” bad faith analysis, misdirection and deception, 2-step verification.

View Case Opinion

ILWU-PMA Welfare Plan v. Connecticut General, 3:15-cv-02965-WHA (N.D. Cal., 2017)

Jan 24 2017

Key Insight: Service provider failed to preserve ESI

Nature of Case: ERISA action

Electronic Data Involved: ESI contained on servers

Keywords: failure to preserve, servers, service provider, inherent power authority

View Case Opinion

Archive - January 2017