December 1, 2017 – Electronic Discovery Law

IDC Fin. Pub., Inc. v. Bonddesk Grp., LLC, No. 15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)

Dec 01 2017

Key Insight: In this case, the court granted Plaintiff?s motion to compel production of over 600 documents previously produced with extensive non-responsive redactions applied. Defendants argued that the redactions were necessary to protect confidential business information that was not relevant to the underlying dispute and cited In re Takata Airbag Prods. Liab. Litig., 14-24009-CV-MORENO, 2016 WL 1460143 (S.D. Fla. Feb. 24, 2016), in support of their position. In Takata, the court allowed certain non-responsive redactions ?because of its concern that the documents contained competitively sensitive materials that may have been exposed to the public, despite protective orders.? In the present case, the court cited Burris v. Versa Prods., Inc., No. 07-3938 (JRT/JJK), 2013 WL 608742 (D. Minn. Feb. 19, 2013) for the propositions that non-responsive redactions are not explicitly supported by the federal rules and that allowing such redactions has the potential for abuse, where parties would be incentivized to ?hide as much as they dare.? The court further reasoned that Defendants did not assert any privilege or provide a ?compelling reason? for their ?extensive? redactions and that they failed to explain why the existing protective order did not provide adequate protection. Thus, the court concluded that it ?[did] not see a compelling reason to alter the traditionally broad discovery allowed by the rules by letting the defendants unilaterally redact large portions of their responsive documents on relevance grounds? and granted Plaintiff?s motion to compel

Electronic Data Involved: ESI

Storey v. Effingham Cnty., No. CV 415-149, 2017 WL 2623775 (S.D. Ga. June 16, 2017)

Dec 01 2017

Key Insight: For Defendants? negligent (or even reckless) failure to preserve relevant video footage following Plaintiff?s release from jail despite the ?distinct possibility? of litigation in light of the injuries Plaintiff suffered while in custody and his specific threats to sue, the court imposed sanctions to redress the prejudice to Plaintiff and ordered that the court would tell the jury that the video was not preserved and that the parties could present evidence and argument regarding that failure for the jury?s consideration

Electronic Data Involved: Surveillance footage from jail

TLS Mgmt. & Mktg. Servs. LLC v Rodriguez-Toledo, No. 15-2121 (BJM), 2017 WL 1155743 (D.P.R. Mar. 27, 2017)

Dec 01 2017

Key Insight: For an individual defendant?s admitted disposal of his laptop and deletion of the contents of his external drive after transferring the contents to a thumb drive despite Plaintiff?s request to preserve and pending litigation, the court reasoned that Plaintiff ?plausibly suggests? that the laptop and hard drive ?might have? contained relevant ESI based on Defendant?s admitted accessing and copying of confidential files and imposed sanctions, including an adverse inference and an order for Defendants to permit and pay for examination of the at-issue external drive, but the court declined to impose sanctions for the individual defendant?s loss of his cellphone ?based on the current state of the evidentiary record? where Plaintiff failed to proffer evidence sufficient to suggest that the loss was not inadvertent or to clarify the approximate time of the loss

Electronic Data Involved: Laptop, ESI, cellular phone

Realpage, Inc., v. Enter. Risk Control, LLC, No. 4:16-CV-00737, 2017 WL 1180420 (E.D. Tex. Mar. 30, 2017)

Dec 01 2017

Key Insight: The Court granted Plaintiffs? Motion to Compel Production of Defendants? computer images. Defendants made their source code available to Plaintiffs who then identified comments made prior to the produced source code date. Defendants insisted the pre-July 2013 source code was destroyed when Plaintiffs? former employee became a full-time employee of Defendants. The Court found that Defendants provided a sufficient explanation of good faith destruction of pre-July 2013 code but that limited forensic imaging could recover important deleted materials. The Court held that a tailored examination by a third-party forensic expert of Defendants? computers is appropriate to determine whether the pre-July code is recoverable or to assist in cross-examination as to its destruction.

Electronic Data Involved: Mirror image

Blasi v. United Debt Servs. LLC, No. 2:14-cv-83, 2017 WL 2255525 (S.D. Ohio May 23, 2017)

Dec 01 2017

Key Insight: For a defendant?s spoliation and failure to participate in litigation, the court struck the defendant?s motion to dismiss for lack of personal jurisdiction and eventually also awarded default judgment and attorneys fees to the plaintiff; addressing whether to also sanction Defendant?s counsel for failing to prevent the spoliation, the court reasoned that ?it seems obvious that the party requesting sanctions has at least an initial burden of proof with respect to not only whether sanctionable conduct has occurred, but also with respect to whether the misbehaving party?s attorney may have been involved? and found Plaintiff?s assertions and evidence of such involvement ?too thin?

Electronic Data Involved: ESI

TetraVue, Inc. v. St. Paul Fire & Marine Ins. Co., No. 14cv2021-W (BLM), 2017 WL 1008788 (S.D. Cal. Mar. 15, 2017)

Dec 01 2017

Key Insight: Defendant moved to compel Plaintiff to produce additional documents, supplement discovery responses, and remove non-responsive documents from their production. Plaintiff had not been able to obtain the entire underlying action file from former counsel, and argued they do not have actual control over the documents. The court found Plaintiffs did have ?possession, custody or control? of the file under Fed. R. Civ. P. 34 (even though counsel had not been cooperative in turning the materials over) and granted Defendant?s motion to compel production of additional non-privileged and responsive documents. Plaintiffs were ordered to obtain the file and provide supplemental responses to Defendant?s RFPs. Defendant asserted Plaintiff?s previous production was a ?data dump? without an index (and contained numerous non-responsive documents), and did not comply with Fed. R. Civ. P. 34. Plaintiffs contended that Defendant did not request a specific format and that they complied with the discovery order and produced their ESI in a proper format (PDF). Plaintiffs also claimed that Defendant?s request to have Plaintiff organize their production based on RFPs would be disproportionate – the production was in date order, allowing Defendant to ?organize, index and search the data at a low cost and with little effort.? The court agreed, finding the production adequate and cited the advisory committee?s notes for Fed. R. Civ. P. 34 (?contemplated that the parties requesting ESI would be able to organize it themselves?). Finally, the court denied Defendant?s motion for supplemented interrogatory responses, finding the Plaintiffs? responses adequate (the burden of finding the answer would be ?substantially the same for either party?).

Electronic Data Involved: ESI

Duffy v. Lawrence Mem?l Hosp., No. 2:14-v-2256-SAC-TJJ, 2017 WL 1277808 (D. Kan. Mar. 31, 2017)

Dec 01 2017

Key Insight: Despite previously ordering production of ESI, court considered motion for protective order by defendant after the ?enormity of the task became apparent? and granted the motion in light of defendant?s presentation of evidence showing that responding to the at-issue requests would take 8,982 hours of work at a cost of $230,000, if accomplished by contract staff; court indicated that it found ?merit? in Defendant?s proposal to provide a random sample of the at-issue information ?from a standpoint of accuracy,? reasoning that ?human error would be a realistic factor? if Defendant were to employ contract workers to conduct a manual review of all of the records under time constraints

Electronic Data Involved: Electronic hospital records

Kirk v. Invesco, Ltd., No. H-15-833, 2017 WL 1078763 (S.D. Tex. Mar. 22, 2017)

Dec 01 2017

Key Insight: Court sustained objection to award of taxable costs related to vendor?s work to provide Plaintiff with an image of Plaintiff?s work computer

Electronic Data Involved: Taxable costs

Houston v. Coveny, No. 14-cv-6609, 2017 WL 972124 (W.D.N.Y. Mar. 13, 2017)

Dec 01 2017

Key Insight: Court granted motion for preservation order as to relevant audio and video recordings reasoning that a court ?may grant a preservation order if a party can demonstrate that the evidence is in some danger of being destroyed absent court intervention? and that in light of the Department of Corrections and Community Supervision retention policy such an order was appropriate to ensure preservation through the pendency of the case

Electronic Data Involved: Audio and video recordings

Am. Auto. Ins. Co. v. Hawaii Nut & Bolt, Inc., No. 15-00245 ACK-KSC, 2017 WL 80248 (D. Hawai?I Jan. 9, 2017)

Dec 01 2017

Key Insight: Court reserved ruling on request for re-production of ESI where parties were ordered to confer, or, more specifically, to ?put their respective IT representative sin contact to see if an understanding can be reached about the format in which the ESI can be produced, as well as the related metadata (if any such metadata exists).?; in its analysis, court stated: ?ESI must be produced in the form in which it is maintained in the ordinary course of business, and if this includes metadata, the metadata must also be provided to Safeway.?

Electronic Data Involved: ESI, metadata

Archive - December 1, 2017