December 1, 2017 – Page 2 – Electronic Discovery Law

Singh v. Hancock Nat. Res. Grp., Inc., No. 1:15-cv-01435-LJO-JLT, 2017 WL 710571 (E.D. Cal. Feb. 22, 2017)

Dec 01 2017

Key Insight: Court recommended terminating sanctions for Plaintiffs? discovery violations, including failing to produce documents with metadata, as ordered, and failing to provide an explanation; failing to produce other documents as ordered, including a more legible version of a spreadsheet that Plaintiffs created; and falsifying discovery, but declined to recommend additional monetary sanctions

Electronic Data Involved: ESI

Air Prods. & Chems., Inc v. Wiesemann, No. 14-1425-SLR, 2017 WL 758417 (D. Del. Feb. 2, 2017)

Dec 01 2017

Key Insight: Court denied motion for spoliation sanctions where Defendants ?failed to clear the threshold issue of showing that relevant evidence was lost or destroyed? or, in the case of the alleged spoliation of ESI of one former employee, where defendants failed to show that the emails could not be replaced through additional discovery in light of the production of some of the employee?s emails from other computers

Electronic Data Involved: ESI

Wilson v. Washington, No. C16-5366 BHS, 2017 WL 518615 (W.D. Wash. Feb. 8, 2017)

Dec 01 2017

Key Insight: Addressing Plaintiff?s concerns regarding Defendants production, characterized by the court as ?thousands of pages of unorganized documents,? the court reasoned that ?Rule 33(d) does not supplant a party?s duty to adequately label and identify responsive documents under Rule 34,? that courts have recognized that production of documents as kept in the usual course of business ?may require the producing party to include different identifying information according to the type of document or file produced,? and that ?the most recent? court decisions have held that both Rule 34(b)(2)(E)(i) and (ii) apply to the production of ESI and concluded that Defendant?s response fell short of its duties under 34(b)(2)(E) and 33(d)(1) and stated that ?[s]ome form of further organization or specification is required to signify that they have provided ?rationally organized productions??

Electronic Data Involved: Unorganized ESI

Brown v. Ferguson, No. 4:15CV00831 ERW, 2017 WL 386544 (E.D. Mo. Jan. 27, 2017)

Dec 01 2017

Key Insight: Court clarified discoverability of relevant social media content but indicated that disclosure of passwords was not required and not permitted by the Federal Rules of Civil Procedure

Electronic Data Involved: Social Media/social network (Facebook, etc.)

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Camicia v. Cooley, No. 74048-2-I, 2017 WL 679988 (Wash. Ct. App. Feb. 21, 2017)

Dec 01 2017

Key Insight: Where Defendant destroyed potentially relevant tort-claim records pursuant to its record retention schedule during pending litigation among other discovery abuses and where the trial court therefore ordered monetary sanctions for the discovery violations and indicated that it would consider a spoliation instruction, the appellate court concluded that the trial court?s record did not support a finding that ?the City destroyed the evidence in bad faith, knew that the evidence was important to the pending litigation, or had the duty to preserve the evidence? and thus, it was not clear that spoliation had occurred; error was harmless where $10,000 fine was not based on a finding of spoliation

Nature of Case: Tort (bicycling accident)

Youngevity Int’l Corp. v. Smith, No. 16-cv-704-BTM-JLB (S.D. Cal. Dec. 21, 2017)

Dec 01 2017

Key Insight: 4.2 million pages of keyword “”hit”” documents produced without review, but designated “”Attorney Eyes Only.

Nature of Case: unfair competition

Electronic Data Involved: 4.2 million pages of keyword “”hit”” documents

View Case Opinion

Barcroft Media, Ltd. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF) (S.D.N.Y. Sept. 28, 2017)

Dec 01 2017

Key Insight: Spoliation sanctions for failing to preserve the webpages in which the images were published.

Nature of Case: Intellectual Property infringement

Electronic Data Involved: Images, Webpages

View Case Opinion

Bratcher v. Navient Sols., Inc., 249 F.Supp.3d 1283 (M.D. Fla. 2017)

Dec 01 2017

Key Insight: Where defendant sought to examine plaintiff?s smartphone itself for the purpose of obtaining a log of blocked calls arguing that ?plaintiff is not entitled to recovery for any blocked calls,? the court noted that defendant had failed to provide legal basis for this position and that ?[T]here is no routine right of direct access to a party?s electronic information system. … absent a factual finding of some non-compliance with [the] discovery rules, direct access is unwarranted.? The court further noted that defendant made no effort to comply with the requirement for a proposal for the protection of privacy rights, the protection of privileged information, and the separation of irrelevant information during inspection. On this basis, the court found direct access to the cell phone unwarranted and denied defendant?s motion to compel.

Nature of Case: Telephone Consumer Protection Act

Electronic Data Involved: Cell Phone Call Block Records

Moody v. CSX Transp., —-F.Supp.3d—, No. 07-CV-6398P, 2017 WL 4173358 (W.D.N.Y. Sept. 21, 2017)

Dec 01 2017

Key Insight: Where event data recorder information saved on a laptop computer (1) was transferred to a central repository (?the Vault?) without validation and later found to be unreadable and (2) the original files were destroyed, without validating the files in the Vault, with the laptop after a hardware malfunction, court granted plaintiff?s motion for an adverse inference but declined to strike defendants? answer. Court found defendants? failure to review and validate file uploads to the central repository for over 4 years after the accident ?unfathomable? and concluded that ?their failure to access the files uploaded to the Vault for the four-year period before 2010 conflicted with their duties under the Federal Rules of Civil Procedure.? Court found defendants? actions unreasonable and without credible explanation and therefore sufficient to support a finding that defendants acted with the intent to deprive plaintiff of evidence.

Nature of Case: Personal injury (railway accident)

Electronic Data Involved: Event Data Recorder Files

William C. Blosser v. Ashcroft, Inc., No. C17-5243-BHS, 2017 WL 4168502 (W.D. Wash. Sept. 19, 2017)

Dec 01 2017

Key Insight: Where Defendant contended there was only one way to search the at-issue database but failed to explain why and where Plaintiffs noted Defendant?s failure to offer reasons why optical character recognition could not be used on the database, the court ?agree[d],? reasoning that parties might otherwise be encouraged to ?maintain inaccessible databases to limit their discovery obligations? and noted that Defendant may need to consult a third party vendor if necessary and ordered the parties to meet and confer regarding the issue

Nature of Case: Asbestos exposure liability

Electronic Data Involved: Database

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Archive - December 1, 2017