eDiscovery Import – Page 31 – Electronic Discovery Law

In re Blue Cross Blue Shield Antitrust Litig., No. 2:13-CV-20000-RDP, 2015 WL 10891632 (N.D. Ala. Nov. 4, 2015)

Dec 01 2015

Key Insight: Court held that ?litigation/preservation holds and memoranda (at least in this case) issued by a corporate party to its employees for purpose of giving instruction and direction concerning documents and records to be preserved by those employees, even where that instruction arises from legal advice from counsel, are not shielded by the attorney-client privilege? and ordered production of certain litigation holds, including sections identifying the documents to be preserved, characterizing the litigation holds as ?managerial? and without the protection of attorney-client or work product privileges

Nature of Case: Antitrust

Electronic Data Involved: Litigation holds (i.e., legal holds, record holds)

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

O?Connor v. Newport Hosp., 2015 WL 1225683 (R.I., Mar. 17, 2015)

Dec 01 2015

Key Insight: Court vacated judgment in a medical malpractice case and remanded the case for a new trial where the trial justice admitted 3 exhibits without proper authentication, and exacerbated the error by allowing a biased, incorrect jury instruction which highlighted the information contained in the erroneously admitted exhibits, contributing to their prejudicial effect. Exhibits in question – whose purpose was to impeach plaintiff?s sole medical expert witness – were 2 printed versions of web pages, and a purported printout of an email, all of which were admitted over plaintiff?s objections after plaintiff?s expert witness was asked questions about their contents. With the record indicating no attempt to verify authenticity, no comments or findings from the justice with respect to authentication of any of the documents, nor indication on the record that defendant?s counsel made any representations to the trial justice regarding when or by whom the purported web page print outs were accessed and printed, the court concluded ?While we have not set a ?high hurdle to clear? with respect to authentication ? we hold that the trial justice abused his discretion by admitting exhibits A-C based solely on the brief testimony of one witness who was clearly unfamiliar with all three documents.?

Nature of Case: Medical malpractice

Electronic Data Involved: Email; Web page

Smith v. Williams, No. 06-14-00040-CV, 2015 WL 3526089 (Tx. Ct. App. May 29, 2015)

Dec 01 2015

Key Insight: Trial court erred by giving a spoliation instruction for Defendant?s failure to produce certain information where an explanation was given for the nonexistence of some records and where there was no evidence that the missing records were lost with the requisite intent to conceal or destroy relevant evidence and the error was harmful; judgment was reversed and case remanded

Nature of Case: Personal injury resulting from automobile/tractor-trailer collision

Electronic Data Involved: Miscellaneous records

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)

Cheng v. Lake Forest Assocs., No. CBD-13-1365, 2014 WL 2964082 (D. Md. June 30, 2014)

Dec 01 2014

Key Insight: Court reasoned that ?[c]aselaw demonstrates that a contractual relationship between two parties, which privies one party to access documents or information physically possessed by the other, can be sufficient to establish the requisite control necessary to compel production of a discovery-related document[]? and found that defendant had such control over video surveillance footage in the possession of a third party and granted Plaintiff?s motion to compel

Nature of Case: Personal injury (Slip & fall)

Electronic Data Involved: video surveillance

Cormack v. United States, No. 13-232C, 2014 WL 3555255 (Fed. Cl. July 18, 2014)

Dec 01 2014

Key Insight: Court found no waiver resulting from the production of a privileged email (work product) in light of the scope of discovery (more than one million pages produced), defendant?s use of ?advanced software to screen for privilege,? and the ?numerous steps? intended to protect privilege as outlined for the court and because counsel sought the email?s return ?within hours? of receiving a filing with the email attached; defendant was also found to be in control of documents in the possession of a ?wholly owned but indirect French subsidiary? in light of the companies? collaboration on the at-issue software as illustrated by the companies? representations to the potential client regarding their collaboration, agreements between the companies, and the close working relationship between the two

Nature of Case: Patent infringement

Electronic Data Involved: Email, documents in possession of non-party

Bombardier Recreational Prods. Inc. v. Arctic Car, Inc., No. 12-cv-2706 (MJD/LIB), 2014 WL 10714011 (D. Minn. Dec. 5, 2014)

Dec 01 2014

Key Insight: Addressing a myriad of motions, court declined to compel Defendant?s production of irrelevant ESI hit upon by agreed-upon search terms reasoning that the rules permit and even encourage relevancy screening ?in an effort to avoid large, largely nonresponsive documents dumps mean to obscure and cloak relevant documents? and that Plaintiff failed to establish that Defendant had withheld relevant materials or agreed to the production of all search hits; court declined to compel Defendant?s production of a 30(b)(6)(witness to provide ?discovery on discovery? reasoning that Plaintiff failed to demonstrate that the information sought was ?relevant to – or may lead to the discovery of information relevant to – any claim or defense at issue in the present case? and that the request ?treads dangerously close to encroaching on attorney work product privilege?

Nature of Case: Patent infringement

Electronic Data Involved: ESI search hits, “discovery on discovery”

Clemons v. Corrections Corp. of Amer., Inc., No. 1:11-CV-339, 1:11-cv-340, 2014 WL 3507299 (E.D. Tenn. July 14, 2014)

Dec 01 2014

Key Insight: Where defendant attempted to preserve relevant video by assigning a part time maintenance/IT employee to copy the relevant portion but failed to discover that the wrong portion was copied before the tape was overwritten, the Magistrate Judge found that the failure to preserve the relevant footage was grossly negligent and recommended a mandatory adverse inference, that defendant be prohibited from offering evidence or testimony from witnesses who viewed the unavailable footage and that plaintiff be awarded reasonable attorney?s fees; the district court adopted the recommendations

Nature of Case: Claims of deliberate indifference to prisoner’s medical needs

Electronic Data Involved: Video surveillance footage

Hawley v. Mphasis Corp., No. 12 Civ. 592(DAB)(JLC), 2014 WL 3610946 (S.D.N.Y. July 22, 2014)

Dec 01 2014

Key Insight: Court declined to impose sanctions for spoliation of contents of Plaintiff?s work laptop (by deleting the data and reissuing the computer to another employee) where despite the court?s finding that defendant had been grossly negligent in its failure to preserve, a presumption of relevance was not warranted and plaintiff failed to demonstrate that the lost documents would have supported his claim; regarding the destruction of plaintiff?s supervisor?s laptop (who had resigned), the court ordered an adverse inference where the court found that the failure to preserve was grossly negligent and where defendant?s conduct was sufficiently egregious to warrant a finding that the evidence was unfavorable to it (notably, the court indicated it ?[did] not matter? who had wiped the hard drive because defendant should have taken steps to preserve the data well in advance of the supervisor?s resignation); court ordered an adverse inference for defendant?s failure to produce certain evidence

Nature of Case: Employment discrimination

Electronic Data Involved: Contents of plaintiff’s laptop and supervisor’s laptop

Author - eDiscovery Import