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Hamilton v. Oswego Community Unit School District 308 (N.D. Ill. 2022)

Feb 25 2022

Key Insight: Plaintiffs sought a motion for sanctions based on spoliation of evidence based on defendants’ failure to preserve a photograph of their child’s bruise that was taken by the school nurse that led to a call to the DCFS hotline. The court found that defendants did not have a duty to preserve the photograph because it was not reasonably foreseeable the instant litigation would be forthcoming. At the time the nurse deleted the photo there was no indication that plaintiffs were contemplating litigation against the school for anything related to the nurse’s visit or the report to DCFS. As such, there was no duty to preserve the photo. Even if there was a duty to preserve the photo, the court found that plaintiffs were not prejudiced by its deletion.

Nature of Case: Civil Rights

Electronic Data Involved: ESI, Photographs

Case Summary

Emerson Creek Pottery v. Emerson Creek Events (W.D. Va. 2022)

Feb 18 2022

Key Insight: Plaintiff moved for spoliation sanctions against defendants relying on (1) an inadvertently disclosed email between defendant and his counsel discussing the preservation of emails, and (2) defendants did not produce a “mirror image” of the emails produced by third parties. Plaintiff contended the content of the email between defendant and his counsel is evidence that defendant failed to preserve ESI and defendant countered that it was part of a longer conversation between defendant and defense counsel about how defendants temporarily lost access to some of their emails during a server migration but later recovered them. The court denied plaintiff’s motion, finding that plaintiff failed to provide any evidence that defendants lost ESI and there was nothing to suggest that there were any additional emails that plaintiff had not received from defendants or third parties. If the court were to consider a remedy, the remedy requested by plaintiff was “draconian” and nearly the entirety of what defendants were expected to argue at trial, and the court would have to tailor a remedy to the particular discovery violation in question.

Nature of Case: Intellectual Property

Electronic Data Involved: Email

Case Summary

Arconic Corp. v. Novelis Inc. (W.D. Pa. 2022)

Feb 10 2022

Key Insight: The court denied plaintiff’s motion for recusal based on metadata in the court’s orders that suggested that the special master was the author of some of the court’s opinions in the case. Plaintiff claimed the author field on the metadata suggested the special master was the author of the court’s opinions but the court explained how this opinion was wrong. The author field of the metadata for a document created from a template will continue to reflect the name of the person who originally created the document unless that name is changed. The court did not change or remove the author field when using a template document that had previously been prepared in the case but acknowledged going forward it would revise the authorship data on its court orders as needed. Further, the court’s decisions demonstrate that the opinions and orders are those of the court, acting independently of the special master, based on the differences between the court’s decisions and the related R&Rs by the special master.

Nature of Case: Trade Secrets

Electronic Data Involved: Metadata

Case Summary

Consultus, LLC v. CPC Commodities (W.D. Mo. 2022)

Feb 04 2022

Key Insight: Plaintiffs argue that defendants’ claims of privilege should be overruled due to the crime-fraud exception. Defendants withheld emails claiming work product and attorney-client privilege. Plaintiffs have not argued that the emails are not covered by either the work product doctrine or the attorney-client privilege. The purpose of the crime-fraud exception is to assure that the “seal of secrecy” between lawyer and client does not extend to communications “made for the purpose of getting advice for the commission of a fraud or crime.” In order to avail itself of the crime-fraud exception, the party seeking disclosure must satisfy a threshold showing of “a factual basis adequate to support a good faith belief by a reasonable person that the [party asserting the privilege] was engaged in intentional fraud and communicated with counsel in furtherance of the fraud.” The court found that plaintiffs’ assertions do not satisfy the threshold showing as they amount to conjecture since there is no other evidence that the communications were made in furtherance of a crime or fraud.

Nature of Case: Antitrust

Electronic Data Involved: Emails

Case Summary

In re Diisocyanates Antitrust Litigation (W.D. Penn. 2022)

Jan 07 2022

Key Insight: This multidistrict litigation involves allegations that the defendants conspired to reduce supply and increase prices for methylene diphenyl diisocyanate (“MDI”) and toluene diisocyanate (“TDI”), chemicals used in the manufacture of polyurethane foam and thermoplastic polyurethanes. The parties filed competing motions to compel regarding the use TAR and search terms. Plaintiffs moved to compel an order requiring the defendants to use plaintiff’s proposed search terms, or alternatively, to establish a process by which disputed search terms could be adjudicated. The E-Discovery Special Master made a recommendation to deny the motions and directed the parties to his prior report and recommendation on the parties’ TAR protocols to address concerns he raised their regarding the parties’ methodologies.

Nature of Case: Antitrust MDL

Electronic Data Involved: ESI

Case Summary

Gunter v. Alutiiq Advanced Security Solutions, LLC (D. Md. 2021)

Dec 28 2021

Key Insight: Defendant alleged that Plaintiff altered the wording of text messages and fabricated a series of text messages. Plaintiff also failed to produce relevant text message and falsely testified that such messages did not exists which was proved by a later forensic review. The Court had serious doubts regarding the text messages at issue. Plaintiff has no explanation for why his cellphone contains some text messages but not others. For these reasons, the Court ruled the text messages could not be used as evidence and the cost of the forensic review of the cell phone would be shifted to Plaintiff. However, the case would not be dismissed as there was not the “clear evidence necessary to conclude that Plaintiff fabricated the text messages.”

Nature of Case: Employment Discrimination

Electronic Data Involved: Text Messages

Case Summary

Fourth Dimension Software v. Der Touristik Deutschland GmbH (N.D. Cal. 2021)

Dec 15 2021

Key Insight: Plaintiff moved for sanctions against defendant alleging that it had a duty to preserve usage records for the software at issue in its breach of contract claim. The court found that defendant had a duty to preserve the usage records, it violated the duty by deleting the records, the deletion prejudiced plaintiff and defendant acted with intent to deprive plaintiff of the records’ use. The duty to preserve the records arose before the litigation was filed since (1) plaintiff gave notice to defendant of both license overuse and third-party use claims; (2) the parties proceeded to attempt to negotiate a settlement of the claims for nearly a year; and (3) plaintiff sent a letter in August 2018 stating that it intended to file a complaint. Shortly after receiving notice that plaintiff intended to file suit, defendant destroyed the records, supporting an inference that defendant intentionally destroyed the usage records. The court ordered that an adverse jury instruction would be an appropriate sanction for defendant’s conduct.

Nature of Case: Breach of Contract

Electronic Data Involved: Usage Records

Case Summary

Axis Ins. Co. v. American Specialty Ins. & Risk Servs., Inc. (December 2021)

Dec 06 2021

Key Insight: The court affirmed the Magistrate’s order granting (in part) plaintiff’s motion to compel discovery to produce documents, to correct metadata issues and to pay expenses plaintiff incurred in pursuing the motion to compel. Defendant only objected to the Magistrate’s order on the fee request. The court adopted the magistrate judge’s order granting a provisional award of fees and costs. It found that the defendant’s opposition to the motion to compel discovery was not substantially justified under FRCP 37(a)(5)(A).

Nature of Case: Breach of Contract

Electronic Data Involved: ESI

Case Summary

America West Bank Members v. State of Utah (D. Utah 2021)

Nov 10 2021

Key Insight: Plaintiff filed a motion to compel after learning through the discovery process that defendants purged or lost emails and documents. Plaintiff sought “discovery on discovery” to discern the identities of individuals whose emails would have been responsive if those emails were still available, the identification of documents or categories of documents no longer available, and an explanation as to why other responsive documents were not produced. The court granted plaintiff’s request but found it “strictly limited to the purged former employee email accounts.” No additional depositions were permitted and plaintiff’s fourteen interrogatories on this topic were “neither reasonable nor proportional” to the limited nature of the discovery needed.

Nature of Case: Civil rights

Electronic Data Involved: Email and documents

Case Summary

Doe v. Wesleyan University (D. Conn. 2021)

Oct 08 2021

Key Insight: Plaintiff was expelled from Wesleyan University after being accused of cheating on her exams. Defendant alleged that plaintiff accessed a computerized learning management system, “Moodle”, while taking her exams. Plaintiff claimed the Moodle logs upon which her expulsion was based were faulty. Plaintiff moved to compel discovery, including ESI relating to Moodle regarding the installation, implementation and administration of Moodle at the college. The court found plaintiff was entitled to explore discovery on how the Moodle system logs and registers time. The discovery was relevant to defendant’s affirmative defense that plaintiff cheated and determining the time zone settings of the Moodle log was relevant to Plaintiff’s contention that Moodle was accessed hours before Plaintiff was taking the exams in question.

Nature of Case: Negligence

Electronic Data Involved: Electronic Devices

Case Summary

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