eDiscovery Import – Page 59 – Electronic Discovery Law

EPL Holdings, LLC v. Apple, Inc., No. C-12-04306 JST (JSC), 2013 WL 2181584 (N.D. Cal. May 20, 2013)

Dec 01 2013

Key Insight: Addressing parties? proposed departures from the court?s Model Protective Order, court approved protocol requiring Plaintiff?s reviewers to utilize an encrypted computer provided by Apple to conduct review of source code, including taking notes, and a ban on cell phones and other recording devices while reviewing source code (Apple promised to provide a land line); court declined to modify the Model Order?s provisions regarding printing source code, which place the burden of persuasion on the requesting party when a request for paper copies is challenged; court declined to include provision allowing Plaintiff to make electronic copies of source code and approved Defendant?s proposal requiring the parties to meet and confer regarding any electronic submission of source code; court approved provision requiring Plaintiff to return or destroy any documents containing source code at end of litigation

Nature of Case: patent infringement

Electronic Data Involved: source code

In re Denture Care Prods. Liab. Litig., 292 F.R.D. 120 (D.D.C. 2013)

Dec 01 2013

Key Insight: Court found information sought in third party subpoena was relevant, that production of documents with missing pages or emails without their attachments did not comply with Rule 45, that subpoena was not unduly burdensome, and that forensic investigation of third party?s computers was not yet warranted in spite of ?discrepancies and inconsistencies? in their production, but warned that third party could be required to bear the cost of forensic investigation of their computers if they failed to comply with court?s order to produce all responsive documents

Nature of Case: Products Liability

Electronic Data Involved: ESI

Flagg v. City of Detroit, 715 F.3d 165 (6th Cit. 2013)

Dec 01 2013

Key Insight: Citing a court?s discretion in determining the strength of any adverse inference to be applied and noting that such a decision is determined on a case by case basis, the appellate court held that the District Court did not abuse its discretion in imposing a permissive rather than a non-rebuttable adverse inference for the defendants? bad faith spoliation of email

Nature of Case: Minor son of murder victim alleged that defendants conducted lax investigation and deliberately ignored or actively concealed material evidence

Electronic Data Involved: Emails

St. Jude Medical S.C. Inc. v. Tormey, No. 11-cv-00327, 2013 WL 3270374 (D. Minn. Mar. 25, 2013)

Dec 01 2013

Key Insight: Court addressed Plaintiff?s motion for sanctions for alleged fabrication of evidence and violation of the court’s order to produce certain hardware (computers, hard drives) related to the alleged fabrication but denied sanctions where Defendant consistently claimed he had no additional hardware to be produced and consistently stuck with his explanations related to the creation of the allegedly fabricated documents and surrounding circumstances; regarding fabrication, court explained that ?Discrepancies and inconsistencies without more, however, do not necessarily fabrication make.?; as to both spoliation and fabrication court indicated it would be up to the jury to decide who to believe

Nature of Case: Claims related to loan repayment and whether loan to defendant was forgiven in “walk-away” agreement

Electronic Data Involved: Contents of hard drives

Digital Reg of Texas, LLC v. Adobe Sys. Inc., No. 12-01971-CW-(KAW), 2013 WL 633406 (N.D. Cal. Feb. 20, 2013)

Dec 01 2013

Key Insight: ?In light of the availability of source code analyzer tools and the extraordinary burden that a compiler would impose on [Defendant], the court denie[d] [Plaintiff?s] request for a compiler for source code review?; court also declined to compel defendant?s production of printouts of 14 complete files (of source code) and ordered the parties to meet to determine which limited portions of the source code would be produced in hard copy and to arrange for [Plaintiff?s] experts to inspect the complete file ?to determine the limited portions of the source code needed, if necessary.?

Nature of Case: Patent Infringement

Electronic Data Involved: Source code, compiler software

Swift Transp. Co. of Arizona, LLC v. Angulo, —F.3d—, 2013 WL 2928094 (8th Cir. June 17, 2013)

Dec 01 2013

Key Insight: Trial court did not abuse discretion in giving a spoliation instruction for a party?s failure to preserve satellite tracking information relevant to the whereabouts of its drivers at the time of the at-issue crash, where trial court was ?abundantly clear? that it believed the destruction was intentional, even if it did not specifically say ?bad faith? and where the victim/plaintiff was prejudiced by the failure to preserve; although the sanctioned party did produce a print out alleged to reflect the relevant satellite information, questions regarding the party?s veracity led the court to mistrust the accuracy of the document which contributed to the imposition of sanctions

Nature of Case: Malpractice related to underlying case involving automobile accident and resulting injuries

Electronic Data Involved: Satellite tracking data

Samaritan Alliance LLC v. Commonwealth of Kentucky, Cabinet for Health & Family Servs., (In re Samaritan Alliance LLC), No. 12-5009, 2013 WL 653624 (Bankr. E.D. Ky. Feb. 20, 2013)

Dec 01 2013

Key Insight: Where ?the Cabinet? inadvertently produced privileged emails and later sought a protective order to preclude a finding of waiver, the court held that privilege had been waived citing the delay in requesting the emails? return, the failure to object to use of the emails as a deposition exhibit, the relatively small volume of information within which the emails had been disclosed and the highly relevant content of the emails at issue

Nature of Case: Medicaid reimbursement

Electronic Data Involved: ESI

Hallmark cards, Inc. v. Monitor Clipper Partners, LLC, No. 08-0840-CV-W-ODS, 2013 WL 1155245 (W.D. Mo. Mar. 20, 2013)

Dec 01 2013

Key Insight: Court held that ?scanning documents and converting computer data into readable format constitute copying within the meaning of section 1920(4)? but that ?costs associated with storing ESI are not recoverable?

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Taxable costs related to ESI

Master Hand Contractors, Inc. v. Convent of the Sacred Heart of Chicago, No. 1-12-3788, 2013 WL 5940641 (Ill. App. Ct. Nov. 4, 2013)

Dec 01 2013

Key Insight: Trial court did not err in dismissing mechanics lien case with prejudice as sanction for plaintiff’s failure to comply with its discovery obligations for approximately 18 months and its violations of seven orders of the court, including three expressly final deadlines to produce electronic discovery materials, as the trial court applied progressive discipline to coerce compliance and gave plaintiff ample opportunities to escape possible discovery sanctions; appellate court criticized plaintiff?s approach to the ESI request, ?under which the company owner — who called himself a ?computer idiot? in open court — self-selected emails relating to the Sacred Heart project instead of using a search tool to find them, and printed them out one at a time, all without supervision of counsel.?

Nature of Case: School building construction litigation

Electronic Data Involved: ESI, including email

Teller v. Dogge, No. 2:12-cv-00591-JCM-GWF, 2013 WL 5655984 (D. Nev. Oct. 16, 2013)

Dec 01 2013

Key Insight: Where defendant failed to produce subject videos or make his hard drive available for mirror imaging as required by court’s order, but plaintiff ultimately obtained the subject videos from Google, court denied plaintiff’s request for case-dispositive sanctions but would impose an adverse inference instruction in the form of a mandatory presumption in light of multiple warnings to defendant that sanctions would result if he did not produce the information and in light of other “violative and unmannered conduct” of defendant in the litigation

Nature of Case: Copyright infringement

Electronic Data Involved: Videos defendant posted to YouTube, instructional DVD and manual

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