eDiscovery Import – Page 54 – Electronic Discovery Law

Pettit v. Smith, No. CV-11-02139-PHX-DGC, 2014 WL 4425779 (D. Ariz. Sep. 9, 2014)

Dec 01 2014

Key Insight: Granting in part plaintiff’s motion for spoliation sanctions, court ruled that under the special circumstances of the case and notwithstanding that it was not a party to the litigation, Arizona Department of Corrections had duty to preserve the missing evidence, its failure to do so was at least grossly negligent, evidence was plainly relevant and plaintiff was clearly prejudiced by its loss; court declined to impose case-terminating sanctions against individual defendants but would allow parties to present evidence and argument about the lost evidence and would instruct jury that ADC had a duty to preserve evidence, ADC did not preserve the evidence, and jurors may infer that lost evidence would have been favorable to plaintiff

Nature of Case: Inmate alleged correctional officers used excessive force

Electronic Data Involved: Videotape of event, photograph of plaintiff’s hand, and other documentary evidence

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

Joffe v. Google, Inc., No. 10-md-02184-CRB (MEJ), 2014 WL 4681403 (N.D. Cal. Aug. 13, 2014)

Dec 01 2014

Key Insight: Where district court had authorized limited discovery on the issue of standing, and parties disagreed on scope and method of search of data, magistrate judge concluded that the most efficient method was through the appointment of a special master as it would (1) permit a technical expert to review all the data in a timely and effective manner, (2) limit collateral attacks and claims of bias that were likely to result if either party conducted the search, and (3) protect any interests that parties not before the court might have, given plaintiffs’ claims that the data contains private information; magistrate judge recommended appointment of special master and further recommended using Google’s ?Jurisdictional Discovery Proposal? for selection of the special master, development of protocol and depositing of information, and all related matters

Nature of Case: Putative class action in which plaintiffs alleged that Google intentionally intercepted, recorded and stored their Wi-Fi communications

Electronic Data Involved: Google’s “Street View” data

Lewis v. Bay Inds., Inc., No. 12-C-1204, 2014 WL 4925483 (E.D. Wis. Sep. 30, 2014)

Dec 01 2014

Key Insight: Where defendant had taken “extraordinary step” of handing over to plaintiff’s computer expert a mirror image copy of the company’s email server so that expert could conduct his own search, and none of the mostly irrelevant emails retrieved by expert provided support for plaintiff?s claims, and plaintiff failed to offer convincing evidence that defendant violated an order of the court or intentionally destroyed or concealed relevant evidence, court rejected plaintiff?s motion for spoliation sanctions and ultimately granted summary judgment in favor of defendant, dismissing all of plaintiff?s claims

Nature of Case: Unlawful retaliation and wrongful discharge claims

Electronic Data Involved: Email

In re Yasmin & Yaz (Drospirenone) Mkg., Sales Practices & Prods. Liab. Litig., No. 3:09-md-02100-DRH-PMF, MDL No. 2100, 2014 WL 4961490 (S.D. Ill. Oct. 3, 2014)

Dec 01 2014

Key Insight: Court applied Rule 502 to conclude that disclosure of privileged slide presentations was inadvertent and did not waive attorney-client privilege; court ordered plaintiffs to return presentations and all copies to defendants and destroy all work product reflecting content from presentations, and directed clerk of court to strike from the court?s record certain exhibits containing references to the presentations

Nature of Case: 32 class actions relating to at least one of the drospirenone-containing oral contraceptives Yaz and Yasmin

Electronic Data Involved: Presentation prepared by defendants’ in-house counsel to convey legal advice to corporate employees and other presentations in which another employee conveyed the legal advice from the in-house counsel presentation to other corporate employees

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

Freedman v. Weatherford Int?l Ltd., No. 12 Civ. 2121(LAK)(JCF), 2014 WL 4547039 (S.D.N.Y. Sep. 12, 2014)

Dec 01 2014

Key Insight: Where plaintiffs offered 18 emails from “critical custodians” that were produced not by defendant but by a third party as new evidence to support motion for reconsideration of order denying motion to compel, court noted differences in search terms used in respective searches and opined that requests for discovery regarding a party?s discovery efforts should be ?closely scrutinized in light of the danger of extending the already costly and time consuming discovery process ad infinitum?; rejecting plaintiffs’ motion for reconsideration, court observed: ??[T]he Federal Rules of Civil Procedure do not require perfection.? . . . Weatherford has reviewed ?millions of documents and [produced] hundreds of thousands,? comprising ?nearly 4.4 million pages? in this case. It is unsurprising that some relevant documents may have fallen through the cracks.?

Nature of Case: Putative class action alleging securities fraud

Electronic Data Involved: Email

Ades v. Omni Hotels Mgmt. Corp., No. 2:13-cv-02468-CAS(MANx), 2014 WL 4627271 (C.D. Cal. Sep. 8, 2014)

Dec 01 2014

Key Insight: Considering plaintiffs? motion for class certification, court discussed Omni?s efforts to preserve call records and recordings and the apparently accidental loss of related call detail records and attendant search functionality; plaintiffs argued that any difficulties in identifying class members was due to Omni?s destruction of data that could have been used to search call recordings, and that it would unfair to allow such difficulties to prejudice class certification; court ultimately certified class and ruled that, to the extent Omni argued that ?identifying class members? may be difficult, those concerns were more properly addressed after class certification

Nature of Case: Putative class action alleging claims under the California Invasion of Privacy Act

Electronic Data Involved: Audio recordings of telephone calls and related data

Kinsler v. City of Philadelphia, No. 13-6412, 2014 WL 3964925 (E.D. Pa. Aug. 11, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for spoliation sanctions based on police department’s loss of cell phone video, as the video did not capture any interaction between plaintiff and the two police officers and it was unclear how the video could be relevant to plaintiff’s claims, plaintiff possessed a second video that did capture the events of the night in question and therefore plaintiff was not prejudiced by loss of the cell phone video, and there was no evidence that the two officers (the only remaining defendants in the case) were ever in possession or control of the cell phone video or responsible for its destruction

Nature of Case: Claims for excessive force and malicious prosecution

Electronic Data Involved: Cell phone video recorded by a witness to the events, 15-30 seconds in duration, which was uploaded onto a Philadelphia Police Department computer and subsequently lost

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

Author - eDiscovery Import