eDiscovery Import – Page 30 – Electronic Discovery Law

Ballai v. Kiewit Power Constructors, Co., No. 110166, 2015 WL 423795 (Kan. Ct. App. Jan. 23, 2015)

Dec 01 2015

Key Insight: Court of Appeals of Kansas found no abuse of discretion by the district court for failing to order sanctions related to the recycling of the laptop computer used by appellant during his employment, as the district court did not issue an order to preserve and there is no statutory or common-law duty to preserve evidence in Kansas; court further found no abuse of discretion by the district court for excluding evidence of recycling the computer; court also found that a chat log was relevant, material, and probative and the appellant was protected from prejudice because the district court only allowed the redacted version of the chat log into evidence.

Nature of Case: Employment

Electronic Data Involved: Laptop; Chat Log

Fid. Nat?l Title Ins. Co. v. Captiva Lake Invs., L.L.C., No. 4:10?CV?1890 (CEJ), 2015 WL 94560 (E.D. Mo. Jan. 7, 2015)

Dec 01 2015

Key Insight: Where inspection by court-appointed specialist revealed that plaintiff deleted emails, failed to institute a litigation hold, and delayed completing a comprehensive search of its electronic files, events which defendant and the court would not have known about but for the inspection, the court said plaintiff was subject to sanctions for failing to secure relevant emails and for prejudicial delay in production of discoverable material and that the court would instruct jurors that they may, but are not required to, assume the contents of deleted emails would have been adverse to the plaintiff, but the court would also allow for plaintiff to put on rebuttal evidence showing ?an innocent explanation of its conduct.? Additionally, the court ordered plaintiff to pay one-half of the reasonable costs of the inspection and to pay defendant?s reasonable attorneys? fees associated with bringing the sanctions motion.

Nature of Case: Insurance Coverage Dispute

Electronic Data Involved: ESI, database contents

Advantor Sys. Corp. v. DRS Technical Servs., Inc., No. 6:14-cv-533-Orl-31DAB, 2015 WL 403308 (M.D. Fla. Jan. 28, 2015)

Dec 01 2015

Key Insight: The Magistrate Judge denied Advantor?s motion for sanctions against DRS for intentional bad faith spoliation of evidence, finding that sanctions were not warranted because there was no showing that the destroyed evidence was critical to litigate the case issues. DRS had a duty to preserve the contents of a laptop that was used by an employee who was hired away from Advantor and subsequently fired by DRS after receiving notice from Advantor that litigation was reasonably anticipated. Despite having a duty to preserve the contents of the laptop, DRS reformatted the laptop and erased files that were potentially proprietary to Advantor and in violation of their Nondisclosure Agreement. However, Advantor failed to show that the files contained relevant information critical to the case or that DRS was aware the files were on the laptop. Despite the unexplained reformatting of the laptop, sanctions were not granted.

Nature of Case: Employment

Electronic Data Involved: Hard Drive

Banks v. St. Francis Health Ctr., Inc., No. 15-cv-2602-JAR-TJJ, 2015 WL 7451174 (D. Kan. Nov. 23, 2015)

Dec 01 2015

Key Insight: Addressing Plaintiff?s Motion to Compel, court overruled Defendant?s objection to producing ESI in native format with metadata where Defendant failed to indicate in its objection the form of production it intended to use instead and did not support its objection by explaining why it could not or should not be required to produce as requested and, in fact, admitted that it had previously produced material in native format; court denied without prejudice Plaintiff?s motion to compel responses outlining Defendant?s search efforts (sometimes called “discovery on discovery”) where Plaintiff?s counsel failed to confer with Defense counsel prior to bringing the motion, as is required by the District of Kansas? ESI Guidelines

Nature of Case: Title VII: racial discrimination, retaliatory conduct

Electronic Data Involved: ESI

Hausman v. Holland Amer. Line – USA, No. 13cv00937 BJR, 2016 WL 11234152

Dec 01 2015

Key Insight: Where Plaintiff sought to shift the costs of ?preparing emails for production? (estimated to be $16,325), the court reasoned that Plaintiff assumed the responsibility for producing relevant documents by initiating the litigation, that cost shifting is ?appropriate ?only when electronic data is relatively inaccessible?? (citing Zubulake v. Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003)), that ?[d]ata may be described as ?inaccessible? due to an undue cost or burden associated with accessing the data,? and concluded that the ?emails in this case [were] readily available? and that the high costs of production were not associated with ?accessing or delivering the emails? but rather with counsel?s review for privilege which was more like attorney?s fees and thus the court denied the motion

Nature of Case: Personal Injury

Electronic Data Involved: Emails

Caputi v. Topper Realty Corp., No. 14-cv-2634(JFB)(SIL), 2015 WL 893663 (E.D.N.Y. Feb. 25, 2015)

Dec 01 2015

Key Insight: Court granted in part defendants? motion to compel Plaintiff?s cell phone records for the purpose of determining her activities during work hours and ordered the production of a sampling of such records from a two year period with an invitation for defendants to renew their application if the sampling provided probative evidence; court denied defendants? motion to compel social media content for the purpose of proving that Plaintiff was engaged in non-work related activities while she claimed to be working where defendants offered little more than their hope that they would find something of relevance but ordered production of a sampling of content from Plaintiff?s Facebook account for the purpose of determining her emotional state, limited to the production of content referencing claimed emotional distress and any related treatment and any alternative sources for the alleged distress

Nature of Case: Employment litigation (FLSA, NYLL)

Electronic Data Involved: Cell phone records, Social media (Facebook)

Johnson v. BAE Sys., Inc., —F. Supp. 3d—, No. 11-cv-02172 (RLW), 2015 WL 3397036 (D.D.C. May 27, 2015)

Dec 01 2015

Key Insight: Where Plaintiffs bad discovery behaviors included hiring a computer technician to work on her computer before producing it for inspection, including using C Cleaner to delete files; deleting several .pst files; and producing a seemingly incomplete set of documents from Facebook, the court called it ?an exceedingly close case? but, because of the lack of meaningful prejudice, declined to impose terminating sanctions and ordered an adverse inference and other evidentiary sanctions and that Defendants were entitled to recoup their fees related to the sanctions motion

Nature of Case: Claims arising from alleged sexual harassment on the job

Electronic Data Involved: ESI, email, Facebook (social network)

In re Milo?s Kitchen Dog Treats Consol. Cases, No. 12-1011, —F.R.D.—, 2015 WL 1650963 (W.D. Pa. Apr. 14, 2015)

Dec 01 2015

Key Insight: Upon Defendant?s motion to compel production of all of Plaintiff?s Facebook materials, the court found ?nothing improper? in Plaintiff?s redaction of irrelevant information from her prior Facebook production, distinguishing the present case from Largent v. Reed, 2011 WL 5632688 (Pa. Ct. Com. Pl. Nov. 8, 2011) in which the court compelled production of Plaintiff?s username and password, and reasoned, in part, that Plaintiff had already provided Facebook information relevant to the case and that Defendant failed to show that further production would result in more relevant information or that Plaintiff?s counsel?s assessment of relevance was questionable

Nature of Case: Claims related to harm to pet from jerky treats

Electronic Data Involved: Facebook (Social Media)

Case Citation: Nucci v. Target Corp., 162 So.3d 146 (Fla. Dist. Ct. App. 2015).

Dec 01 2015

Key Insight: Circuit Court denied petition for certiorari relief to quash Trial Court order compelling discovery of photographs from Plaintiff?s Facebook account, finding no departure from the essential requirements of law, because the photographs were ?powerfully relevant to the damage issues in the lawsuit,? Plaintiff?s privacy interest in them were minimal because ?photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established,? and the Stored Communications Act ?does not apply to individuals who the use the communications services provided.?

Nature of Case: Personal Injury

Electronic Data Involved: Facebook/social media photographs

L-3 Commcn?s Corp. v. Sparton Corp., 313 F.R.D. 661 (M.D. Fla. 2015)

Dec 01 2015

Key Insight: Court addressed topic of key word searching and sustained in part and overruled in part Defendant?s objections to the Magistrate Judge?s order to run all searches proposed by the Plaintiff where certain terms were vague or duplicative; court laid out framework for resolving disputes regarding search terms deemed overly burdensome, including a requirement that the parties confer in good faith before coming to the court

Nature of Case: Claims alleging defect in m

Electronic Data Involved: ESI (search terms at issue)

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