admin – Page 14 – Electronic Discovery Law

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

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

Grande v. U.S. Bank National Association (W.D. Wash. 2020)

Feb 20 2020

Key Insight: The requested business guidelines were relevant. The scope of discovery is very broad. A request for discovery is relevant “unless it is clear that the information sought can have no possible bearing upon the subject matter of the action.”

The court declined to find the guidelines so confidential that they cannot be produced. Defendants did not move for a protective order nor did they provide any evidence of harm that would result from producing the guidelines.

Attorney fees were awarded to Plaintiff because Defendant caused substantial delay in responding to discovery despite Plaintiff’s multiple good faith attempts to obtain the requested discovery.

Nature of Case: Breach of Contract

Electronic Data Involved: Business Guidelines, Business Policies

Case Summary

Houston v. Southwest Airlines (N.D. Tex. 2020)

Feb 18 2020

Key Insight: The litigation was over employment discrimination based on disability. Plaintiff brought the suit pro se. After Plaintiff failed to time respond to Defendant’s discovery requests, Plaintiff filed a Motion for Summary Judgment that was primarily based on Defendant’s failure to produce evidence of her claims a Motion for CR 11 sanctions was also filed.

Defendant based its Motions on Plaintiff’s failure to produce evidence of her purported disability, that she provided notification to her employer of the disability and/or that her employer failed to provide reasonable accommodation for her purported disability. The Magistrate Judge recommended that the Court grant Defendant’s Motion and dismiss all of Plaintiff’s claims and causes of action with prejudice. However, the Judge did not recommend imposing CR 11 sanctions against Plaintiff.

Nature of Case: Employment Discrimination, Disability Discrimination

Electronic Data Involved: Surveillance Videos

Case Summary

Lawson v. Love’s Travel Stops & Country Stores, Inc. (M.D. Penn. 2020)

Feb 17 2020

Key Insight: The court denied Plaintiffs’ requests for additional text message discovery or the forensic imaging of cell phone data. The court emphasized the privacy implications of producing broad cell phone data, which often contain “the most intimate of persona details on a host of matters, many of which may be entirely unrelated to issues in specific litigation.”

The court recognized “a more narrowly tailored request, supported by a more specific showing of relevance, might be appropriate.” The court directed the parties to work together to come to an agreement regarding the scope of a “carefully tailored, relevant search for such data.” Only if the parties cannot reach an agreement, would the court intercede.

Nature of Case: Fair Labor Standards Act, Employment Law

Electronic Data Involved: Text Messages, Cell Phone Data

Case Summary

Nevis v. Rideout Memorial Hospital, et al. (E.D. Cal. 2020).

Feb 06 2020

Key Insight: At the start of litigation, Plaintiff sent a preservation letter to Defendant(s). Subsequently, a Defendant requested Plaintiff produce records and screenshots of text messages from his phone for the month of the incident that was the basis of the litigation. Plaintiffs produced several screenshots of text messages, but was unable to provide the requested phone records. During a subsequent deposition, Plaintiff claimed that he still had the phone.

Additional Defendants subsequently requested a digital download of all information on the phone. However, in response Plaintiff claimed that he no longer possessed the phone. Defendants responded with a Motion for Terminating Sanctions on the basis of spoliation of evidence.

Utilizing a five-part test for imposing sanctions adopted by the Ninth Circuit, the Court found that none of the factors were in favor of sanctions in the litigation. Defendants’ Motion for Terminating Sanctions was denied.

Nature of Case: Personal Injury

Electronic Data Involved: Cell Phone Data, Cell Phone Data Image, Text Messages, Phone Records

Case Summary

Digital Mentor, Inc. v. Ovivo USA, LLC (W.D. Wash. 2020)

Feb 04 2020

Key Insight: The communications with Plaintiff’s consultant were not privileged because the consultant was not a “functional employee.” There is no evidence that the consultant had “information about the company that would assist the company’s attorneys in rendering legal advice.” Additionally, there was no evidence that consultant’s communications with counsel were primarily of a legal nature rather than a business one.

Defendant’s request for sanctions was premature. Rule 37 sanctions are only allowed against a party for disobeys a court issued discovery order. Additionally, no evidence was presented in support of Defendant’s spoliation theory other than a failure to produce documents to its subpoena. Without evidence regarding what was destroyed, when it occurred, the extent of Plaintiff’s involvement, and resulting prejudice, sanctions are inappropriate.

Nature of Case: Trademark Infringement, Breach of Contract

Electronic Data Involved: Email

Case Summary

Nguyen v. Costco Wholesale Corporation (S.D. Fla 2020)

Jan 27 2020

Key Insight: Defendant had no duty to preserve the allegedly spoliated video for the almost two years before the filing of the lawsuit because there was no indication Plaintiffs intended to pursue litigation. Plaintiffs failed to present evidence indicating the allegedly spoliated video was relevant to this litigation which would trigger a duty to take reasonable steps to preserve it. No sanctions are warranted.

Nature of Case: Slip and Fall Liability, Personal Injury

Electronic Data Involved: Surveillance Video

Case Summary

Hurry Family Revocable Trust, et al. v. Frankel (M.D. Fla. 2020)

Jan 14 2020

Key Insight: Plaintiffs filed a Motion to Compel Production of Documents and Request for Sanctions. The documents sought were specific emails. Opposing the Motion, Defendant argued that it was untimely as it was submitted four months after the discovery deadline, and that the emails sought were not responsive to Plaintiff’s earlier document (discovery) request. The Court denied Plaintiffs’ Motion.

Nature of Case: Intellectual Property, Trade Secrets

Electronic Data Involved: Email

Case Summary

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