eDiscovery Import – Page 53 – Electronic Discovery Law

Commonwealth v. Gelfgatt, 11 N.E.3d 605 (Mass. 2014)

Dec 01 2014

Key Insight: Where the facts that would be conveyed by a criminal defendant through his act of decryption of computer files — i.e., his ownership and control of the computers and their contents, knowledge of the act of encryption, and knowledge of the encryption key — are already known to the government and are thus a “foregone conclusion,” compelling the defendant to enter his encryption key does not violate the defendant’s rights under the Fifth Amendment because the defendant is only telling the government what it already knows; accordingly, court reversed trial judge’s denial of government’s motion to compel decryption and remanded the case to the trial court for further proceedings

Nature of Case: Criminal case regarding mortgage fraud scheme

Electronic Data Involved: ESI; encryption key

Dover v. British Airways, PLC (UK), No. CV 2012-5567 (RJD)(MDG), 2014 WL 4065084 (E.D.N.Y. Aug. 15, 2014), affirmed, Dover v. British Airways, PLC (UK), No. CV 2012-5567 (RJD)(MDG), 2014 WL 5090021 (E.D.N.Y. Oct. 9, 2014)

Dec 01 2014

Key Insight: Where parties entered into a stipulated protective order approved by the court that contained a provision concerning inadvertent disclosures, and plaintiffs inadvertently produced the protected information on the spreadsheets twice and conceded they were “careless,” court did not find plaintiffs’ conduct to be so “completely reckless” as to warrant a finding of waiver given the totality of the circumstances and particularly the nature of the production, plaintiffs’ prompt request for return of the protected information, and the overriding issues of fairness

Nature of Case: Class action alleging that defendant British Airways violated its frequent flyer program contract by imposing unlawful fuel surcharges on rewards flights

Electronic Data Involved: Spreadsheets prepared by non-testifying, consulting experts

Weitzman v. Maywood, Melrose Park, Broadview Sch. Dist. 89, No. 13 C 1228, 2014 WL 4269074 (N.D. Ill. Aug. 29, 2014)

Dec 01 2014

Key Insight: Court granted plaintiff?s motion for an adverse inference instruction where school district destroyed clearly relevant recordings of school board?s closed session meetings by failing to suspend its usual document destruction policies after having notice of its duty to preserve, and where plaintiff suffered substantial prejudice as a result because she was deprived of perhaps the best evidence concerning school district?s real reasons for her termination; court further denied school district?s pending motion for summary judgment since, in light of the adverse inference against the school district, the material facts as to the district?s reasons for terminating plaintiff were, at a minimum, disputed, and in fact appeared to support plaintiff?s claim of discrimination

Nature of Case: Age Discrimination in Employment Act claim

Electronic Data Involved: Tape recordings of school board’s closed session meetings during which board members discussed the decision not to renew contracts of plaintiff and others

Crissen v. Gupta, No. 2:12-cv-00355-JMS-WGH, 2014 WL 1431653 (S.D. Ind. Apr. 14, 2014)

Dec 01 2014

Key Insight: Court criticized plaintiff for not complying with inadvertent production provision of protective order and ordered plaintiff to delete all copies of the recalled documents and any information gleaned therefrom from its network drive, and further ruled that plaintiff may not use the documents or any work product derived therefrom unless and until it is determined that those documents should have been produced; court further awarded bank its fees and costs in connection with the motion, to be paid by plaintiff’s counsel, because the language of the claw back provision was clear and plaintiff’s counsel not only ignored that language but then took the extra step of reviewing the very documents the bank sought to recall

Nature of Case: Racketeering, fraud, unjust enrichment

Electronic Data Involved: Tax returns, bank documents containing defendants’ personal financial information, and internal bank documents

Dataflow, Inc. v. Peerless Ins. Co., No. 3:11-cv-1127 (LEK/DEP), 2014 WL 148685 (N.D.N.Y. Jan. 13, 2014)

Dec 01 2014

Key Insight: District court adopted magistrate judge?s recommendation (at 2013 WL 6992130) that plaintiff?s motion for adverse inference instruction be granted as sanction for defendant?s grossly negligent failure to preserve internal emails in violation of its own retention policy; court deferred ruling on the language of the jury instruction until the filing of pretrial memoranda so as to consider proposed jury instructions as a whole

Nature of Case: Insurance coverage dispute

Electronic Data Involved: Internal emails

Riley v. Marriott Int?l, Inc., No. 12-CV-6242P, 2014 WL 4794657 (W.D.N.Y. Sep. 25, 2014)

Dec 01 2014

Key Insight: Where hotel’s security system recorded elevator area before, during and after plaintiff’s fall, but hotel produced only seven minutes of footage, which began about one minute before the accident and ended before plaintiff was removed from the ground and placed into a wheelchair, and hotel offered no sworn facts concerning the circumstances under which the footage was destroyed, court found hotel was grossly negligent at minimum and concluded that permissive adverse inference instruction was appropriate and sufficient to deter hotel from similar future conduct and restore plaintiff’s position in the litigation

Nature of Case: Slip and fall

Electronic Data Involved: Security camera footage of area before, during and after plaintiff’s fall

Siggers v. Campbell, No. 07-12495, 2014 WL 4978648 (E.D. Mich. Mar. 25, 2014)

Dec 01 2014

Key Insight: Notwithstanding that litigation hold was not put into place until more than four years after complaint was filed, court denied plaintiff?s motion for spoliation sanctions where there was no evidence that defendant deleted any documents or evidence, or acted with an intent to conceal or destroy evidence, there was no evidence that defendant routinely exchanged email correspondence about plaintiff with others, and the vigorous work of plaintiff?s appointed counsel led to only one responsive email being produced; plaintiff would be allowed to question defendant at trial about her failure to timely impose a litigation hold and about other matters related to plaintiff?s assertion that she must have had relevant email communications that no longer exist

Nature of Case: Pro se prisoner civil rights claims

Electronic Data Involved: Emails

Lemon Juice v. Twitter, Inc., No. 502898/14, 2014 WL 4287049 (N.Y. Sup. Ct. Aug. 29, 2014)

Dec 01 2014

Key Insight: Where unknown person created Twitter account in plaintiff?s name and in violation of criminal court’s order took photo of child victim in court testifying against her tormentor and posted it to Twitter account, court ruled that plaintiff had met his burden of demonstrating a meritorious claim for intentional infliction of emotional distress and that the discovery sought from Twitter was needed in order to identify who should be named as a defendant, and that anonymous Twitter account creator?s behavior constituted an actionable tort and was not speech covered by First Amendment protection such that anonymity of creator had to yield to plaintiff?s need to redress the actionable wrong perpetrated against him; court directed Twitter to disclose basic subscriber information, records, internet protocol addresses and other similar information sufficient to identify owner of the bogus Twitter account and to preserve certain evidence

Nature of Case: Special proceeding pursuant to CPLR 3102(c) seeking an order directing Twitter to preserve certain evidence and to disclose certain information

Electronic Data Involved: Twitter subscriber information sufficient to identify the individual(s) who owned or operated particular Twitter account and logged into or “tweeted” on the account

Farstone Tech., Inc. v. Apple, Inc., No. 8-13-cv-01537-ODW(JEMx), 2014 WL 2865786 (C.D. Cal. June 24, 2014)

Dec 01 2014

Key Insight: Court adopted plaintiff’s source-code printing provision in its entirety, rejecting as too restrictive defendant’s proposed limitations that parties may print only that source code ?necessary? to prepare court filings and pleadings, noting that the “reasonably necessary” standard had solid foundation in district?s model protective order, and rejecting as arbitrary defendant?s proposed numerical restrictions: 30-page threshold beyond which the source code printing would be presumed to be excessive, and a total cap on source code printing at the greater of 250 pages or 10 percent of the source code; court also adopted in full plaintiff?s proposed language regarding the use of source code for depositions

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Chickadaunce v. Minott, No. 1:13-cv-01223-WTL-MJD, 2014 WL 4980547 (S.D. Ind. Oct. 6, 2014)

Dec 01 2014

Key Insight: Considering the totality of circumstances and balancing the highly relevant and probative value of the information sought with the slight burden to defendant of preparing a database of case files (estimated by defendant to be 15-20 hours), and taking into account society’s interest in furthering the truthseeking function in the case, court granted plaintiffs’ motion to compel and ordered defendants to produce database of electronic case files within 14 days

Nature of Case: Class of approximately 4,800 disabled individuals sued officials of Indiana Family & Social Services Administration alleging violations of Americans with Disabilities Act and other claims

Electronic Data Involved: Electronic case files of approximately 200 past and current class members

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