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FTC v. Vyera Pharms., LLC (S.D.N.Y. June 1, 2021)

Jun 01 2021

Key Insight: Vyera’s company policy was to issue employees iPhones that were backed up through iCloud but one executive, Mithani, whose conduct was central to the government’s antitrust claims, had requested and received a Blackberry as his company phone, which had no systemic back up of text communications. Despite being under an obligation to preserve evidence, the executive confirmed deleting texts on his work and personal mobile phones before and after receiving a hold notice from Vyera, and wiped his work phone upon leaving the company. A forensic expert confirmed no data could be retrieved or restored from the Blackberry. The court concluded Vyera’s conduct constituted spoliation and warranted sanctions as plaintiffs were prejudiced by Vyera’s conduct and the former executive acted intentionally to deprive plaintiffs of discoverable information. The court declined to adopt an adverse inference sanction and instead adopted Vyera’s proposed sanction that it be precluded from calling the former employee to testify in its defense or introducing into evidence documents that he authored.

Nature of Case: Antitrust

Electronic Data Involved: Text messages

Case Summary

Maurer v. Sysco Albany, LLC (N.D.N.Y. 2021)

May 27 2021

Key Insight: Plaintiff’s Motion to Compel Defendants to produce electronically stored information responsive to specific keyword searches as well as predictive coding. Defendants opposed the Motion on the basis that the information sought was overbroad, and not proportional or relevant to the litigation. Defendants proposed their own electronically stored information “search protocol”.

The Court partially granted Plaintiff’s Motion, allowing specific keyword searches and search methods requested by Plaintiff. Notably, the Court granted Plaintiff’s request to utilize predictive coding in the search for electronically stored information.

Nature of Case: Wrongful Termination, Disability Discrimination

Electronic Data Involved: Electronic Documents, Emails,

Case Summary

Aviles v. S&P Global, Inc. (S.D.N.Y. 2021)

May 24 2021

Key Insight: Plaintiffs filed a Motion to Compel to allow them unfettered access to all information located on a server. Defendant objected, claiming that Plaintiffs had no legal right to the server, and information on the server was irrelevant, confidential and/or privileged. The Court found that the request (Motion to Compel) was overbroad and premature, and denied Plaintiffs’ Motion.

Nature of Case:Fraud, Shareholder Suit, Diversity Jurisdiction

Electronic Data Involved: Hard Drive, Server,

Case Summary

D’Agostin v. Fitness Int’l, LLC (D. Conn. May, 12, 2021)

May 21 2021

Key Insight: The scope of discovery for Plaintiff is limited to requesting information regarding accidents involving falls in locker rooms with tile surfaces in Defendant’s facilities that occurred up to five years prior to the accident giving rise to litigation. Allowing Plaintiff to expand the scope to any tiled floor(s) within Defendant’s facilities would move discovery beyond the focal point of litigation.

Nature of Case: Premises Liability

Electronic Data Involved: N/A

Case Summary

Bursztein v. Best Buy (S.D.N.Y. 2021)

May 17 2021

Key Insight:

Plaintiff moved to sanction Defendant for failure to comply with discovery obligations and spoliation of evidence in personal injury and premises liability litigation. The discovery requests that led to Plaintiff’s Motion were for video surveillance of, and facilities records and training manuals related to the “slip and fall” incident at issue in the litigation; the Defendant did not fully respond to the requests, and failed to preserve electronically stored information (ESI) relating to the incident.

The Court partially granted Plaintiff’s Motion for Sanctions, allowing Plaintiff to present evidence at trial regarding Plaintiff’s spoliation of the ESI, and awarding attorney’s fees and costs incurred in briefing the Motion. The Court found that the Defendant failed to preserve the surveillance footage as well as entries in its Facilities Request System. Moreover, the Defendant failed to produce the above mentioned facilities records and training manuals.

Nature of Case: Personal Injury, Premises Liability

Electronic Data Involved: Surveillance Video, Facilities Request System (Database)

Case Summary

Boegh v. Harless (W.D. Ky. 2021)

May 13 2021

Key Insight: The pro se plaintiff was ordered to produce social media (Facebook) content relating to the events at issue in the amended complaint. Based on his public Facebook posts, plaintiff commented extensively on the case and identified evidence and witnesses. Plaintiff argued that defendants already had the information from the public posts, but the court found there is a strong indication plaintiff was withholding relevant and discoverable evidence that was private in his account.

Nature of Case: Civil rights – personal injury

Electronic Data Involved: Social media

Case Summary

Hall v. Marriott Int’l, Inc. (S.D. Cal. 2021)

May 12 2021

Key Insight: This is a putative consumer class action alleging that defendant engaged in false and deceptive advertising in the way it represents the prices for its hotel rooms, services, and amenities. The court granted plaintiff’s motion to compel, finding that the revenue data sought by plaintiffs was relevant to damages—in how damages will be ascertained and how a damages model will be provided. Additionally, discovery regarding the fees charged (including: destination, amenity, resort, destination amenity fee, wi-fi, parking, and other fees) were relevant to understand the nature of the fees and the relationship to defendant’s revenues and determine the scope of the case for settlement discussions. The court also ordered defendant to obtain the requested revenue data from franchised hotels if it has a right to access the financial data through an audit or other contractual provision with the franchisee. Policies and procedures and consumer complaints relating to the charging of fees were also ordered to be produced.

Nature of Case: Consumer Class Action

Electronic Data Involved: Financial Data

Case Summary

In re Rail Freight Fuel Surcharge Antitrust Litig. (D.D.C. May 12, 2021)

May 12 2021

Key Insight: District court rejected, in part, plaintiffs’ request for new discovery of rail-freight transaction data from defendants, the four largest railroads operating in the Unites States. Plaintiffs alleged defendants engaged in a price-fixing conspiracy to increase the price of rail-freight transport from 2003 to 2008. The court granted the request to produce 2009 data as proportional because defendants already had access to the data. The court denied the request for 2010-2012 data, finding it was not proportional at that stage in the litigation. It was not connected to the central issue in the case as to whether defendants engaged in a price-fixing conspiracy, even though it might be relevant to certain plaintiffs’ calculation of full damages.

Nature of Case: Antitrust

Electronic Data Involved: Transaction Data

Case Summary

Healthedge Software, Inc. v. Sharp Health Plan (D. Mass. 2021)

Key Insight:

Defendant filed a Motion to Compel Plaintiff to produce documents, including source code, and Plaintiff filed a Motion to Compel Defendant to disclose how it collected and searched its electronically stored information (ESI). The Court granted Plaintiff’s Motion while partially granting Defendant’s Motion.

A significant issue in both Motions was the respective parties’ collection of ESI. The Court noted that the parties failed “to engage in cooperative planning regarding ESI”, and directed the parties to confer regarding custodians and search terms of ESI collection and review. In partially granting Defendant’s Motion, the Court directed Plaintiff to further articulate its objections, but stated that some of Defendant’s discovery requests were premature even if Plaintiff was obligated to respond to them by the close of discovery.

Nature of Case: Breach of Contract

Electronic Data Involved: Electronic Documents, Source Code

Case Summary

Martinez-Sanchez v. Anthony Vineyards, Inc. (E.D. Cal. Apr. 29, 2021)

Apr 29 2021

Key Insight: The burden of production and utility of the employee badge scans sought by plaintiffs outweighed the benefit to plaintiffs of analyzing the information because: (1) the timekeeping software did not have a reporting function for timestamps and collecting the information would require at least 22,000 hours of manual work; (2) the software only contained records for some months of 2019, less than a quarter of the four-year class period; and (3) the timestamps do not definitively establish the time at which the event happened. Plaintiffs were only entitled to the data in the form in which it is ordinarily maintained. Further, plaintiffs’ request for another copy of defendants’ payroll data would be needlessly cumulative as defendants had provided alternative solutions to plaintiffs’ data extraction and reporting issues. Lastly, although the magistrate judge’s order did not explicitly cite to Rule 26(b)(2), the court’s reasoning clearly fell under Rule 26(b)(2)(B), which permitted the court to deny the production of ESI where the information is “not reasonably accessible because of undue burden or cost” irrespective of whether the magistrate judge had analyzed all the proportionality factors contained in Rule 26(b)(1).

Nature of Case: Labor and Employment

Electronic Data Involved: Timekeeping Data

Case Summary

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