eDiscovery Import – Page 15 – Electronic Discovery Law

Thurmond v Bowman, No. 14-CV-6465W, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016)

Dec 01 2016

Key Insight: Where Defendants sought spoliation sanctions for Plaintiff?s alleged deletion of social media postings that Defense counsel claimed had disappeared from the relevant account, the evidence indicated that the majority of those posts were merely hidden as the result of Plaintiff?s modification of her security settings and the court noted that the three posts that were missing ?did not seem relevant? and concluded that spoliation sanctions were not warranted; court?s analysis included disagreement with the argument that ?the entirety of a plaintiff?s social media account is per se relevant to any claim for emotional distress damages,? and concluded that the contention that sanctions were warranted for the deletion of any Facebook post swept ?far too broadly?

Nature of Case: Housing discrimination

Electronic Data Involved: facebook (social media / social network)

Family Wireless #1, LLC v. Auto. Techs., Inc., No. 3:15CV01310(JCH), 2016 WL 2930887 (D. Conn. May 19, 2016)

Dec 01 2016

Key Insight: Court granted in part Plaintiffs’ motion to compel discovery from additional custodians (the parties had previously agreed to seven in total) where Plaintiff showed good cause to compel such searching upon establishing two custodians? involvement with a relevant committee and another?s regular contact with the franchisees and the issues in this case and where the court reasoned (among other things) that: ?The mere fact that many documents have already been produced is not sufficient to establish that there are no other relevant materials to be found.? and that ?It is reasonable to believe that discussions and transmissions of potentially relevant information could transpire below the highest echelon of management; indeed, as defendant acknowledged, some of the lower-level employees had direct communication with the franchisees regarding commissions.?

Nature of Case: Breach of contract, misrepresentation, unjust enrichment, and unfair trade practices

Electronic Data Involved: ESI from additional custodians (“plaintiffs argue that the custodians should not be limited to decision-makers” and that lower level employees may also have relevant information)

Melchior v. Hilite Int?l Inc., No. 3:11-CV-3094-M (BH), 2016 WL 1165911 (N.D. Tex. Feb. 26, 2016)

Dec 01 2016

Key Insight: Defendant objected to portion of Plaintiff?s bill of costs for electronic data processing, document conversion, exhibit stamping and copy charges. The court sustained Defendant?s objection relating to costs for (i) ?hosting fees, user fees and other miscellaneous database charges? (outside the scope of ?copying or scanning materials?); (ii) converting ESI documents to TIFF format (parties agreed to produce as either native or TIFF files – ?[b]ecause any conversion of the electronic files was the choice of each party,? the conversion was not ?necessarily obtained for use in the case?); (ii) exhibit stamps (not taxable under 1920(4)); (iv) building an electronic database (?steps leading up to the process of copying? do not fall under copying); (v) Plaintiff?s conversion of documents produced to him by the Defendant (?not necessarily obtained?); and (vi) costs of printing electronic documents to paper (for Plaintiff?s convenience rather than necessary). Plaintiff?s recoverable amount was reduced accordingly.

Nature of Case: Taxable costs

Electronic Data Involved: ESI

Accurso v. Infra-Red Servs., Inc., —F. Supp. 3d.—, 2016 WL 930686 (E.D. Pa. Mar. 11, 2016)

Dec 01 2016

Key Insight: Court denied motion for a negative inference for Plaintiff?s alleged deletion of emails evidencing Plaintiff?s intention of taking business from Defendants where Defendants provided no basis for the court to conclude: 1) that there was ?actual suppression or destruction of evidence, let alone that [Plaintiff] was responsible,? 2) that the evidence was not obtainable from other sources, or 3) that Defendant acted with the requisite intent to deprive under Fed. R. Civ. P. 37(e)

Nature of Case: Claims and counterclaims include: violations of Employee Polygraph Protection Act, breach of contract, intentional interference with contract, fraud, misappropriation of trade secrets

Electronic Data Involved: Emails

Delphi Commc?ns. Inc. v. Advanced Computing Techs. Inc., No. A15A1655, 2016 WL 1176998 (Ga. Ct. App. Mar. 28, 2016)

Dec 01 2016

Key Insight: Appellate court upheld trial court?s decision to strike defendants? answer and enter default judgment (as to one claim) as a spoliation sanction for Defendants? failure to preserve an image of their hard drives

Nature of Case: Claims against former employees and thier employer alleging copying of Plaintiff’s software products and solicitation of Plaintiff’s customers without consent

Electronic Data Involved: ESI

Friedman v. Philadelphia Parking Auth., No. 14-6071, 2016 WL 6247470 (E.D. Pa. Mar. 10, 2016)

Dec 01 2016

Key Insight: Where Defendant failed to preserve relevant evidence for reasons including its failure to timely issue a litigation hold following receipt of a letter threatening litigation and its lack of understanding related to the migration of its data to a new archival system resulting in the loss of ESI (e.g., Defendant was notified of but failed to address an ?over limit folder problem? related to two custodians, failed to confirm that data had successfully migrated before instructing employees to delete information ,etc.) but where Defendant undertook SUBSTANTIAL efforts to address its discovery defects and Plaintiff was unable to identify any specific information that was lost (where much was received from third parties or eventually produced as a result of Defendant?s remedial efforts) or to establish an intent to deprive, the court declined to impose sanctions pursuant to recently amended Rule 37(e); instead, pursuant to Rule 37(a) the court ordered Defendant to reimburse Plaintiff?s reasonable attorney?s fees and expenses necessary to prepare and file their motion for sanctions; regarding Defendant?s lack of a document retention policies and potential loss of data before implementation of its archive after its duty to preserve was triggered, the court indicated that prejudice was ?speculative? but invited a motion from Plaintiff for ?evidentiary rulings? if desired

Javeler Marine Servs. LLC v. Cross, 175 F.Supp.3d 756 (S.D. Tex. 2016)

Dec 01 2016

Key Insight: Addressing taxable costs, court concluded ?generally? that ?creating forensic images of Defendants? devices and conversion of the relevant imaged copies to TIFF format are within the rubric of ?making copies of any materials? under ? 1920(4) in this case, but are taxable costs only upon a showing they were ?necessarily obtained for use in the case.?? Court also held that the statute ?does not authorize taxation of expenses attributable to keyword searches.? Ultimately, the court concluded that in the present case the ?factual record? was ?insufficient? to determine the recoverable amount and ordered the submission of a revised, and more detailed, bill of costs.

Nature of Case: Claims based on alleged misappropriation of confidential information

Electronic Data Involved: Taxable Costs

Procaps S.A. v. Patheon, Inc., NO. 12-24356-CIV-GOODMAN, 2016 WL 411017 (S.D. Fla. Feb. 2, 2016)

Dec 01 2016

Key Insight: Addressing taxable costs for electronic discovery, the court acknowledged the lack of any ?on-point Eleventh Circuit law? and deemed CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320, 1325 (Fed. Cir. 2013) ?to be the most persuasive circuit court opinion on the issue?; where even CBT Flint Partners LLC did not address costs related to OCR, however, the court indicated it would ?follow the fundamental principle that the costs statute is ?modest? and ?narrow? and ?limited to minor, incidental expenses? and excluded OCR costs from Defendant?s costs request

Nature of Case: Antitrust

Electronic Data Involved: Taxable costs for electronic discovery

In re Bard IVC Filters Prod. Liab. Litig., —F.R.D.—, 2016 WL 4943393 (D. Ariz. Sept. 16, 2016)

Dec 01 2016

Key Insight: In this case, the parties disagreed on the discoverability of communications between Defendants? foreign subsidiaries and divisions and foreign regulators regarding the filters at issue in the case. Following analysis of the effects of the December 1, 2015 amendments on the Federal Rules of Civil Procedure and of the specific facts of the case, the court determined that the at-issue communications were ?only marginally relevant? and was persuaded that ?the burden of [the] foreign discovery would be substantial.? Thus, the court concluded that Defendants were not required to search their foreign entities for communications with foreign regulators. In the course of its discussion of the amendments, the court stated: “Amended Rule 26(b)(1) was adopted pursuant to the Rules Enabling Act, 28 U.S.C. ? 2072 et. seq. That statute provides that ‘[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.’ Id., ? 2072(b). Thus, just as a statute could effectively overrule cases applying a former legal standard, the 2015 amendment effectively abrogated cases applying a prior version of Rule 26(b)(1). The test going forward is whether evidence is ‘relevant to any party?s claim or defense,’ not whether it is ‘reasonably calculated to lead to admissible evidence.'”

O?Berry v. Turner, Nos. 7-15-CV-00064-HL, 7:15:CV-00075-HL, 2016 WL 1700403 (M.D. Ga. Apr. 27, 2016)

Dec 01 2016

Key Insight: Where custodian printed single paper copy of relevant driver?s log and PeopleNet data to be maintained in the usual course of business, did nothing more upon receipt of a request for preservation and ultimately misplaced the envelope in which the information was maintained despite claiming to have done ?everything in his power to preserve evidence,? the court found that Defendant filed to take reasonable steps to preserve the data and acted with the intent to deprive Plaintiffs of the information in litigation, reasoning that it was ?simply irresponsible? to print a single paper copy for preservation and noting Defendant?s lack of a document preservation policy and the failure of counsel to contact the at-issue custodian for approximately two and one half years following receipt of the request to preserve, among other things: ?All of these facts, when considered together, lead the Court to conclude that the loss of the at-issue ESI was beyond the result of mere negligence. Such irresponsible and shiftless behavior can only lead to one conclusion?that ADM and Archer Daniel Midlands Company acted with the intent to deprive ??

Nature of Case: Automobile accident

Electronic Data Involved: Driver’s log, PeopleNet data

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