September 2017 – Page 2 – Electronic Discovery Law

Court Imposes Adverse Inference for Failure to Preserve Non-Party’s Text Messages within Defendants’ “Control”

Sep 14 2017

Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS), 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017)

In this case, the court imposed an adverse inference against certain defendants for their failure to preserve text messages in the possession of a non-party, where the court found that the defendants had control of the non-party’s text messages, citing the non-party’s close working relationship with the defendants, his prior participation in the litigation (e.g., by providing documents, etc.), and his financial interest in the at-issue film (and thus the outcome of the litigation).

Wright v. National Interstate (Eastern District of Louisiana, 2017)

Sep 12 2017

Key Insight: Court cites rule 37, but not 37(e). No bad faith found for video that automatically overwrote footage, but allowed to question defendant about presence of camera and whereabouts of footage

Nature of Case: Personal injury (automobile accident)

Electronic Data Involved: Electronic data generally (photographs, videos, sketches, maps, diagrams), video

Keywords: ECM data, triggering event

View Case Opinion

Oxbow Carbon & Minerals LLC v. Union Pac. R.R., No. 1:11-cv-01049-PLF-GMH (D.D.C. Sept. 11, 2017)

Sep 11 2017

Key Insight: ability to afford production, parties access to the relevant documents, impact on third parties

Nature of Case: Antitrust

Electronic Data Involved: 467,614 documents from electronic and physical files, 130 GB additional documents

Keywords: scope of discovery, antitrust, Sherman, cost/benefit

View Case Opinion

Barry v. Big M Transportation, No. 1:16-cv-00167-JEO, 2017 WL 3980549 (N.D. Ala. Sept. 11, 2017)

Sep 11 2017

Key Insight: Defendant’s failure to preserve the relevant ESI.

Nature of Case: Motor vehicle accident

Electronic Data Involved: Electronic Data/Electronic Control Module (ECM) Vehicle Data Recorder/Black Box and associated data.

Keywords: Spoliation, ECM data

View Case Opinion

Amgen Inc. v. Hospira Inc (Court of Appeals, 2017)

Sep 10 2017

Key Insight: establishing a clear and indisputable right to a requested discovery

Nature of Case: patent infringement

Electronic Data Involved: Patent information

Keywords: cell culture, absent broad discovery, manufacturing data

View Case Opinion

Stewart v. Belhaven Univ., No. 3:16-cv-744-CWR-LRA (S.D. Miss. Sept. 8, 2017)

Sep 08 2017

Key Insight: Sanctions for willful destruction of cell phone after receiving demand to preserve

Nature of Case: workplace discrimination

Electronic Data Involved: text messages

Keywords: spoliation, preservation of evidence, text messages, iCloud

View Case Opinion

Mann, et al. v. City of Chicago, et al., No. 1:13-cv-04531 (N.D. Ill. Sept. 8, 2017)

Sep 08 2017

Key Insight: Failing to prove even an estimate of the burden costs of discovery will not protect against discovery

Nature of Case: Civil rights (police misconduct)

Electronic Data Involved: Emails

Keywords: Homan square, Chicago Police Department, off the grid,

View Case Opinion

Court: Production of Hard Copy Versions of Documents Also Kept As ESI Does Not “Run Afoul” of Rule 34

Sep 05 2017

Ortega v. Mgmt. & Training Corp., NO. 16-cv-0665 MV/SMV, 2017 WL 3588818 (D.N.M. Jan. 1, 2017)

In this case, Plaintiff sought to compel native/electronic production of documents previously produced in hard copy. Defendant claimed that the documents in question were “ordinarily kept by Defendant both electronically and in hard copy” and produced only the hard copy format. The court found that Defendant’s production did not “run afoul of Rule 34.”

Bouchard v. U.S. Tennis Association (E.D.N.Y., 2017)

Sep 05 2017

Key Insight: Whether sanctions appropriate following defendants’ destruction of recordings, litigation hold

Nature of Case: personal injury

Electronic Data Involved: Video recordings

Keywords: spoliation, intent to deprive, adverse inference, prejudice

View Case Opinion

Archive - September 2017