eDiscovery Import – Page 43 – Electronic Discovery Law

In re Text Messaging Antitrust Litig., No. 08 C 7082, MDL No. 1997, 2014 WL 4343286 (N.D. Ill. Sep. 2, 2014)

Dec 01 2014

Key Insight: After granting summary judgment to defendants, court evaluated defendants’ bills of costs under Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) and sustained plaintiffs’ objections to several categories of defendants’ claimed e-discovery expenses because they did not constitute the cost of “making copies” under Section 1920(4), but were preparatory steps that occurred prior to copying or occurred after copying, e.g., electronic data “processing” expenses, “quality check” expenses, OCR costs, ?tech time,? ?data capture,? ?master CD replication,? costs associated with processing or creation of a “load file,” or cost of software packages used in production process; costs of converting native files to TIFF were recoverable

Nature of Case: Plaintiffs unsuccessfully claimed price-fixing among providers of text messaging services

Electronic Data Involved: ESI

Tedeschi v. Kason Credit Corp, No. 3:10CV00612 DJS, 2014 WL 1491173 (D. Conn. Apr. 15, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for adverse inference based on defendant’s failure to preserve printouts from its computer system, finding that defendant did not have a duty to preserve printouts so long as the electronic files themselves were preserved

Nature of Case: Claims under Fair Debt Collection Practices Act

Electronic Data Involved: Printed fact sheets that showed collection activity maintained on defendant’s computer system

Del Gallo v. City of New York, 997 N.Y.S.2d 98 (Table) (N.Y. Sup. Ct.2014)

Dec 01 2014

Key Insight: Addressing request for discovery of Plaintiff?s social media contents, specifically LinkedIn, court indicated that ?[t]o warrant such discovery, ?defendants must establish a factual predicate for their request by identifying relevant information in plaintiff?s [social media] account — that is, information that contradicts or conflicts with plaintiff?s alleged restrictions, disabilities, and losses, and other claims?? and, although it acknowledged that Defendants could obtain information pertinent to Plaintiff?s communications with recruiters related to job offers and related inquiries, indicated that Defendants had not shown that they were entitled to Plaintiff?s communications with former colleagues about her condition or to the other materials on LinkedIn

Nature of Case: Wrongful death and personal injuries resulting from falling tree limb

Electronic Data Involved: Social Media Contents (e.g., LinkedIn)

Fleming v. Escort, Inc., No. 1:12-CV-066-BLW, 2014 WL 4853033 (D. Idaho Sep. 29, 2014)

Dec 01 2014

Key Insight: Where allegations covered events occurring over past 15 years and defendant produced almost no email in response to 65 document requests and 12 interrogatories, and despite general claim of privilege defendant did not provide a privilege log, court granted plaintiff’s motion and ordered defendant to answer three questions to allow plaintiff and court to evaluate defendant’s claim that it had produced everything: 1) What search terms did you use? 2) What computers or repositories did you search within? and 3) What was the time frame for your search? If questions were not answered fully and completely in 10 days, plaintiff would be allowed to file a new motion for sanctions

Nature of Case: Patent infringement

Electronic Data Involved: Email

State v. Francis, 455 S.W.3d 56 (Mo. Ct. App. 2014)

Dec 01 2014

Key Insight: Court reversed conviction and remanded for new trial based on error in admission of text messages found on Blackberry in Defendant?s possession at the time of his arrest where the State argued that ownership of the Blackberry could be inferred and failed to establish that at-issue text messages were authored by the defendant, which in turn, negated the state?s arguments for admitting the outgoing text messages as well: ?There was no evidence that Appellant owned the BlackBerry or, more importantly, authored the messages. The fact that Appellant possessed the phone at the time of arrest is insufficient by itself to establish that Appellant authored text messages sent hours or days earlier. Because the State failed to establish that the text messages were authored by Appellant, the outgoing messages were not admissible as admissions by a party opponent and, thus, the incoming messages were not admissible under any identified exception to the hearsay rule.?

Nature of Case: Drug conviction

Electronic Data Involved: Text messages from Blackberry

Abdulahi v. Wal-Mart Stores E., L.P., 76 F. Supp. 3d 1393 (N.D. Ga. Dec. 2014)

Dec 01 2014

Key Insight: Where plaintiff was fired for failure to lock a gate?which he disputed?during the pendency of separate EEOC investigations into plaintiff?s charges of discrimination and where the at-issue manager claimed to have viewed footage confirming the gate was unlocked but failed to preserve it, the court determined that Defendant was under a duty to preserve (?due to an ongoing EEOC investigation during the applicable time period, Wal-Mart?s own investigation into the alleged employee misconduct including a review of the video footage, and litigation being reasonably foreseeable?), that plaintiff was prejudiced by the loss because neither the at-issue manager?s testimony or emails were equivalents for the video, and that plaintiff showed ?more than mere negligence? in the destruction, the court ordered an adverse inference creating a presumption that ?Wal-Mart?s stated reason for terminating Plaintiff was pretextual and that retaliation was the but-for cause of Plaintiff?s termination? and awarded attorney?s fees

Nature of Case: Employment litigation

Electronic Data Involved: Video surveillance footage

Abcon Assocs., Inc. v. Haas & Najarian, No. CV 12-928(LDW)(AKT), 2014 WL 4981440 (E.D.N.Y. Oct. 6, 2014)

Dec 01 2014

Key Insight: Where there was no evidence that plaintiff ever instituted litigation hold, and documents were either discarded during plaintiff?s office move or lost due to server failure and/or corruption, court found that a fair reading of the record overall indicated that plaintiff?s failure to preserve was at most negligent and not in bad faith, and that no sanctions were warranted given that the alleged relevance of the missing documents appeared purely speculative and conclusory

Nature of Case: Breach of legal services agreement

Electronic Data Involved: Documents concerning plaintiff’s liabilities and financial condition

Savage v. City of Lewisburg, No. 1:10?0120, 2014 WL 6827329 (M.D. Tenn. Dec. 3, 2014 )

Dec 01 2014

Key Insight: District court said that where Defendant was under a duty to preserve audio recordings and should have taken steps to prevent their destruction; and where Defendant refused to produce payroll and promotion data ordered by the court; and where Defendant had not produced documents ordered by the court; Plaintiff would be permitted to argue adverse inferences to the jury and file an affidavit of reasonable costs and attorneys? fees in bringing its sanctions motion.

Nature of Case: Employment Discrimination

Electronic Data Involved: Audio recordings, payroll and promotion data, documents

Alter v. Rocky Pt. Sch. Dist., No. 13-1100 (JS)(AKT), 2014 WL 4966119 (E.D.N.Y. Sep. 30, 2014)

Dec 01 2014

Key Insight: Notwithstanding court?s finding that defendants lost materials due to their negligence in failing to: (1) institute a litigation hold until more than two years after plaintiff filed her notice of claim, (2) discuss a litigation hold with named individual defendants and other key players, (3) preserve all ESI regarding plaintiff from named individual defendants and all key custodians in separate backup tapes or in some other medium, or (4) preserve work-related ESI utilized by key players on their personal computers or other devices, court declined to impose spoliation sanctions as it found no intent on the part of defendants to spoliate material evidence and plaintiff failed to meet burden of showing with some degree of factual detail that lost materials were relevant or helpful in prosecuting her claim; court further denied plaintiff?s request for appointment of independent forensic computer expert, but did impose $1,500 sanction against school district and its counsel given that court found merit to some of plaintiff?s arguments

Nature of Case: Workplace discrimination claims

Electronic Data Involved: ESI, emails

Culp v. Alabama, CR-13-1039, 2014 WL 6608543 (Ala. Crim. App Nov.21, 2014)

Dec 01 2014

Key Insight: In his appeal of a domestic violence conviction, Culp claimed that emails between himself and the victim were improperly admitted into evidence and were never properly authenticated under Rule 901(b)(4), Ala. R. Evid.. Alabama?s Rule 901(b)(4), which is identical to the federal version, provides that evidence can be authenticated by ?[d]istinctive characteristics and the like,? including ?[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.? The court ruled that the emails were properly authenticated because each email contained Culp?s photograph, a screen name that he used, and many of the emails concluded with Culp?s initials. Additionally, the emails contained drug references that were uniquely used by Culp and the victim.

Nature of Case: Criminal

Electronic Data Involved: Email

Author - eDiscovery Import