eDiscovery Import – Page 34 – Electronic Discovery Law

XL Specialty Ins. Co. v. Bollinger Shipyards, Inc., No. 12-2071, 2014 WL 295053 (E.D. La. Jan 27, 2014)

Dec 01 2014

Key Insight: Court rejected plaintiff’s complaints regarding format of defendant’s production of documents, because plaintiff failed to make any Rule 34(b)(2)(B) ESI specification in its discovery requests and defendant’s production of scanned images on OCR readable disc was a reasonably usable form; court ordered defendant to explain its document naming and numbering system to the extent it had not already done so, but denied any additional logistical relief, stating: ?Whatever burden XL and its counsel face in reviewing these materials that they themselves have requested is rightfully borne by them.?

Nature of Case: Insurance coverage

Electronic Data Involved: Database of more than 808,000 documents consisting of more than four million pages

Quintero Cmty. Assoc. v. Hillcrest Bank, No. 04-11-CV-00893-DGK, 2014 WL 1764791 (W.D. Mo. May 2, 2014)

Dec 01 2014

Key Insight: Where defendants produced ESI that had previously been provided to the FDIC in the course of its investigation but could not provide the passwords to access the information and where the requesting party was told by “several companies” that the documents would be ?nearly impossible? to unencrypt, the court declined to impose spoliation sanctions reasoning that ?a presumption of spoliation only arises when there is evidence of ?intentional destruction indicating a desire to suppress the truth?? and that the requesting party had not shown intentional destruction (?QCA has not provided the court with sufficient evidence that Defendants, or their attorneys, placed the passwords on the discs, let alone evidence that these actors did so to intentionally block QCA’s access.?)

Nature of Case: Claims arising from failed property investment

Electronic Data Involved: Password protected ESI

Crawford v. City of New London, No. 3:11CV1371 (JBA), 2014 WL 2168430 (D. Conn. May 23, 2014)

Dec 01 2014

Key Insight: Spoliation sanctions were not appropriate where original footage on hard drive was recorded over in compliance with standard retention procedures, because: (1) defendants preserved a DVD copy of the video per standard practice, (2) plaintiff failed to present any evidence that the copy was of a lesser quality than the original, other than to allege that it was stored in a format that was inconvenient for enhancement, (3) defendants did not have control over the original security footage nor were they involved in its destruction, (4) recording over original footage occurred long before duty to preserve was triggered, and (5) there was no evidence beyond the fact of destruction itself that would support an inference that the original recording was unfavorable to defendants

Nature of Case: Excessive force claims in connection with plaintiff’s arrest

Electronic Data Involved: Hard drive containing original surveillance footage of plaintiff’s arrest

U.S. Legal Support, Inc. v. Hofioni, No. 2:13-cv-1770 LLK AC, 2014 WL 172336 (E.D. Cal. Jan. 15, 2014)

Dec 01 2014

Key Insight: Motion for spoliation sanctions denied without prejudice where plaintiff argued that individual defendants violated their duty to preserve by continuing to use their personal electronic devices after receiving notice of the action and not “quarantining” the devices pending forensic imaging, as plaintiff did not make a specific showing that spoliation had, in fact, occurred; testimony of plaintiff’s forensic experts was mere speculation as neither expert identified any actual loss of data nor provided any forensic analysis of the personal electronic devices at issue

Nature of Case: Misappropriation of trade secrets, breach of contract, unfair competition

Electronic Data Involved: ESI stored on individual defendants’ personal electronic devices

Rodriguez v. City of New York, No. 114739/10, 2014 WL 2438436, May 29, 2014 (unpublished)

Dec 01 2014

Key Insight: Court granted plaintiff?s cross-motion for sanctions in the form of an adverse inference instruction, finding that it was particularly concerning that defendant Department of Education permitted surveillance video depicting at least some of the activity involved in litigation to be taped over where a police investigation immediately ensued, a Notice of Claim was filed by plaintiff, and the faculty of the school thought to view the video soon after the events occurred, and in the case of one teacher, prior to her deposition

Nature of Case: Student assaulted during school field trip sued for inadequate supervision and negligent hiring

Electronic Data Involved: Surveillance video

Connelly v. Veterans Admin. Hosp., No. 12-2660, 2014 WL 2003093 (E.D. La. May 15, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for an adverse inference instruction where plaintiff failed to demonstrate that, at point in time at which surveillance videotape was overridden pursuant to VA’s 30-day retention policy, VA was on notice that the surveillance tape was relevant to litigation; plaintiff also failed to show any bad faith with respect to the alleged destruction of video surveillance

Nature of Case: Federal Tort Claims Act claim for slip-and-fall injury

Electronic Data Involved: Surveillance video footage

Palma v. Metro PCS Wireless, Inc., 18 F.Supp.3d 1346 (M.D. Fla. 2014)

Dec 01 2014

Key Insight: Observing that, generally, social media content is neither privileged nor protected by any right of privacy, nevertheless, a defendant does not have a generalized right to rummage at will through information that plaintiff has limited from public view, court denied defendant?s motion to compel, questioning the relevance of the material sought and finding that ?the burden of requiring all of the opt-in Plaintiffs to review all of their postings on potentially multiple social media sites over a period of four years and determine which posts relate to their job, hours worked, or this case, would be an ?extremely onerous and time-consuming task’?

Nature of Case: Fair Labor Standards Act claims

Electronic Data Involved: Posts to social media accounts and private messages sent from social media sites

Zeller v. S. Cent. Emergency Med. Servs., No. 1:13-CV-2584, 2014 WL 2094340 (M.D. Pa. May 20, 2014)

Dec 01 2014

Key Insight: Court ruled that plaintiff was entitled to a “first review” of results of independent forensic examination of plaintiff’s email account, and that plaintiff and defendants would share equally in cost of restoring and searching plaintiff’s emails, up to a maximum contribution by plaintiff of $1,500

Nature of Case: Family and Medical Leave Act claims

Electronic Data Involved: Plaintiff’s emails

Dewhurst v. Century Aluminum Co., No. 2:09-1546, 2014 WL 555164 (S.D. W. Va. Feb. 12, 2014)

Dec 01 2014

Key Insight: Court denied defendant’s motion for spoliation sanctions based on union’s failure to preserve evidence, noting that union appeared to have been diligent in trying to gather up relevant documents once litigation commenced, there was no way to determine when the missing records were destroyed, and union was autonomous organization and none of the existing plaintiffs shouldered any blame for the union’s negligence

Nature of Case: Class action regarding defendant’s obligation to restore certain retiree healthcare benefits

Electronic Data Involved: E-mail and other ESI

Jackson Family Wines, Inc. v. Diageo N. Am., Inc., No. 11-5639 EMC (JSC), 2014 WL 595912 (N.D. Cal. Feb. 14, 2014)

Dec 01 2014

Key Insight: Court granted plaintiffs’ motion for spoliation sanctions in the form of an adverse inference instruction and monetary sanctions, where defendants never issued a litigation hold on marketing employee’s documents, never spoke to her about preserving documents, inexplicably deleted image of the her laptop six months after receiving the image from IBM pursuant to defendant?s ?leaver?s process,? waited over six months before notifying the court or plaintiffs about the destruction, and worse, made numerous representations to the court that consistently and vehemently sought to reassure the court that production of the employee?s documents was complete and irreproachable

Nature of Case: Trademark infringement

Electronic Data Involved: Hard drive containing image of departing marketing employee’s e-mail and other ESI

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