2020 – Page 5 – Electronic Discovery Law

WeRide Corp. v. Kun Huang (N.D. Cal., 2020)

Apr 24 2020

Key Insight: Defendant’s failure to suspend document retention policy resulted in loss of evidence and court ordered judgment against Defendant. Plaintiff also showed evidence that USB Drives had been inserted into a shared laptop and files deleted. Defendants actions had made it impossible for Plaintiff to prove case.

Nature of Case: Trade Secrets

Electronic Data Involved: USB Drives inserted into company laptop; Email accounts

Keywords: records retention policy, spoliation, sanctions

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Brittney Gobble Photography, LLC v. Sinclair Broadcast Group, Inc. (D. Md. 2020)

Apr 09 2020

Key Insight: Plaintiff, a professional photographer, filed a motion for spoliation sanctions against the defendant, claiming the deletion of emails were crucial to the claims and defenses in the litigation. The court denied plaintiff’s motion, finding: there is no evidence that the emails at issue actually existed, and an inference that they did not exist; if the emails existed, there is no evidence that the defendant lost or destroyed any emails in order to prevent plaintiff from using them in the litigation; and plaintiff is not prejudiced by the purported loss. Plaintiff never proved that the purported emails existed and to succeed on a spoliation of evidence motion, mere speculation is not enough.

Nature of Case: Copyright infringement

Electronic Data Involved: Emails

Case Summary

In re Aenergy, S.A. (S.D.N.Y. 2020)

Apr 03 2020

Key Insight: The primary purpose of an email must be to secure legal advice to be privileged. It is not enough to copy counsel on the email. If requests in the email are directed to non-legal employees and counsel does not weigh in, it cannot be said that the primary purpose is to seek legal advice. When it is unclear whether a document is providing legal advice or is driven by business or negotiation considerations, attorney-client privilege will not be extended to the document.

Categorical privilege logs must provide sufficient information to evaluate the privilege claim. The party’s vague and repetitive privilege log along with its attempts to claw-back unprivileged documents led to a loss of credibility with the court. The court ordered a re-review of its privilege determination with a revised document-by-document privileged log.

Nature of Case: Fraud, Contract Dispute

Electronic Data Involved: Email

Case Summary

Lundine v. Gates Corp. (D. Kan. 2020)

Mar 30 2020

Key Insight: Plaintiff moved to compel defendant to produce ESI of class-member pay data in Excel format or native format, or in the alternative, to allow her experts to access the data and download it. Defendant opposed the motion, asserting it had adequately responded by producing the data in PDF format. The court denied plaintiff’s motion. Neither party disputed that defendant produced the information in the form in which it is ordinarily maintained and the data in PDF form is still usable. “[R]equiring defendant to re-produce data in Excel format would be duplicative and unduly burdensome.”

Nature of Case: Wage and Hour Class Action

Electronic Data Involved: Payroll Data

Case Summary

In re Fluor Intercontinental, Inc., 803 Fed.Appx. 697 (4th Cir. Mar. 25, 2020)

Mar 25 2020

Key Insight: Disclosure of summary of internal investigation did not waive privilege of underlying documents. Waiver not inferred simply because of disclosure of materials on same topic.

Nature of Case: employment dispute

Electronic Data Involved: internal investigation files

Keywords: waiver, privilege

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Simpson v. J.L. Guess et al. (Middle District of Florida, 2020)

Mar 20 2020

Key Insight: Proportionality need for records not related to the claim; Relevance; Access to records; Parties resources; Whether the burden or expense of the proposed discovery outweighs it’s likely benefit

Nature of Case: Prisoner Pro Se – Unconstitutional use of excessive force by corrections officers

Electronic Data Involved: Hard copy (discipline records/ Mail logs); collection

Keywords: Compel; Sanctions; Declaration of counsel; Malicious and sadistic purpose to inflict harm; State of Mind; Veracity; narrowed requests; meet and confer;

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Noah’s Wholesale, LLC v. Covington Specialty Insurance Co. (S.D. Fla. 2020)

Mar 13 2020

Key Insight: The work product doctrine applies when litigation is reasonably foreseeable. Generally, litigation is anticipated when an insurance claim is denied. Here, the lawsuit was filed before the claim was formally denied, but after Defendant began investigating the legitimacy of the claim and evaluating potential defenses and exemptions. Defendant argues litigation was anticipated immediately upon receipt of Plaintiff’s insurance claim. Plaintiff contends that litigation was not anticipated until the lawsuit was filed. The Court disagreed with both positions. After the insurance claim was filed, the primary purpose of the documents created was to gather information to evaluate the claim not in anticipation of litigation. The Court found that litigation was reasonably anticipated when Plaintiff informed Defendant he had retained counsel. Defendant responded to the notification as if litigation were imminent. All documents created from that point forward were created in anticipation of litigation. As such, those documents are protected work product.

Nature of Case: Insurance Claim, Theft of business property

Electronic Data Involved: Business Records, Insurance Claim File

Case Summary

Noahs Wholesale, LLC v. Covington Specialty Insurance Co. (Southern District of Florida, 2020)

Mar 13 2020

Key Insight: when work product doctrine comes into play

Nature of Case: theft of business property insurance claim

Electronic Data Involved: insurance file claim work product claim

Keywords: work product doctrine, anticipation of litigation

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U.S. v. Morgan (Western District of New York, 2020)

Mar 06 2020

Key Insight: encryption

Nature of Case: Conspiracy to commit wire fraud and bank fraud; Money Laundering conspiracy

Electronic Data Involved: Servers, computers, storage media, iPhone

Keywords: Search warrant; “GrayKey” program to access passcodes; Unreasonable retention of the iPhone; Motion for Return of Property; 3 part test – 1.entitled to possession, 2. property not contraband, 3. either seizure was illegal or the government’s need for the property as evidence has ended; evidentiary burden

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Archive - 2020