eDiscovery Import – Page 9 – Electronic Discovery Law

Browder v. Albuquerque, No. CIV 13-0599 RB/KBM, 2016 WL 3946801 (D.N.M. July 20, 2016)

Dec 01 2016

Key Insight: Where relevant video was lost as a result of mistakes made by representatives of the defendant who were attempting to pull and preserve the video from the recording system for the first time and where CDs with the footage ?vanished,? the court reasoned that the errors were symptoms of a ?larger problem: an inadequate information management and evidence retention policy? (a point it relied on significantly in its discussion of culpability) and also found that the plaintiff was prejudiced and imposed sanctions allowing Plaintiff to present evidence that the video existed and was lost through negligence and indicated that if Defendant attempted to elicit testimony from a deputy regarding what he saw on the video (that was viewed by several of defendant?s representatives before it was lost), the jury would be instructed to make any inference they believed was appropriate; the court also ordered Defendant to pay Plaintiff?s expenses and fees incurred in bringing the motion

Nature of Case: Traffic accident involving a police officer

Electronic Data Involved: Video footage

Bagley v. Yale Univ., No. 3:13-CV-1890 (CSH), 2016 WL 7407707 (D. Conn. Dec. 22, 2016)

Dec 01 2016

Key Insight: Court granted Plaintiff?s motion to compel production of litigation hold notices and related responses to a survey regarding recipients? computer use where, despite the absence of specific evidence of spoliation or a pending spoliation motion, the delayed (9-11 months) and rolling issuance of litigation holds was described by the court as ?leisurely, to an extent making it impossible to dismiss as frivolous [Plaintiff?s] suggestion that she might move for a spoliation sanction? and where the court reasoned that Plaintiff was ?entitled to discovery in these areas, in order to discern the merit or lack of merit of a formal claim for spoliation claim? [sic]; regarding assertions that the hold notices were privileged, the court reasoned that ?the predominant purpose of the communication was to give recipients forceful instructions about what they must do, rather than advice about what they might do?; court?s analysis included identification of six ?decisive questions? relevant to ?spoliation cases involving litigation hold notices? including, when the duty to preserve arose, whether litigation holds were issued, when they were issued, what they said, how recipients responded and what further action was taken beyond the litigation holds to preserve evidence

Nature of Case: Employment discrimination

Electronic Data Involved: Litigation Hold notices and survey to recipients regarding computer use

In re Disposable Contact Lens AntiTrust Litig., No. 3:15-md-2626-J-20JRK, 2016 WL 6518660 (M.D. Fla. Nov. 1, 2016)

Dec 01 2016

Key Insight: Where the ?potential relevance? of the information sought was ?essentially undisputed,? but where Defendant claimed to have already spent $700,000 on discovery and that the request for 18 additional custodians could result in an expenditure of at least $1.5 million, court noted that the parties? dispute was essentially a question of proportionality and concluded a that two additional ?upper-management custodians? were warranted (as opposed to the seven requested) and also found that a sample of four sales manages was appropriate (as opposed to the eleven requested); as to Class Plaintiffs? request for a ?hit list? generated by applying the agreed-upon search terms to the collected materials, the court reasoned that in light of the number of custodians and the parties? agreement as to search terms, such a list seemed ?less valuable that it might otherwise be,? but ordered that if one was automatically generated, it should be produced

Nature of Case: Class Action

Electronic Data Involved: Additional Custodians

Ferrara Bros. Bldg. Materials Corp. v. FMC Constr. LLC, 54 Misc.3d 529 (N.Y. Sup. Ct. 2016)

Dec 01 2016

Key Insight: Plaintiff, arguing Defendant?s contract was backdated, moved for sanctions after Defendant discarded computers (2 years after the action commenced) containing native information and system metadata for the contract at issue. The contract?s creation date was at issue in this case and Defendant had not indicated that it preserved the metadata before discarding the computers (which was not a regular or automatic event but rather a ?curiously fortuitous occurrence?). In considering sanctions, the court concluded that Defendant?s submission of an affidavit indicating that the computers were replaced and discarded did not ?rebut the presumption that Casa was negligent, even grossly negligent? and found that a negative inference at trial would be ?sufficient to strike a balance between the need to ameliorate any prejudice related from the destruction of the computer system, and the absence of demonstrable willfulness ??

Nature of Case: Breach of contract

Electronic Data Involved: Metadata

Hausman v. Holland Am. Line-U.S.A., No. CV13-0937 BJR, 2015 WL 51273 (W.D. Wash. Jan. 5, 2016)

Dec 01 2016

Key Insight: Judgment vacated and new trial ordered for deliberate spoliation of relevant emails revealed by credible witness after original trial

Nature of Case: Personal injury

Electronic Data Involved: Emails

Yeti Coolers, LLC v. RTIC Coolers, LLC, No. A-15-CV-597-RP, 2016 WL 6916944 (W.D. Tex. Nov. 11, 2016)

Dec 01 2016

Key Insight: Where Defendant resisted searching certain emails arguing undue burden and that it was unlikely that responsive emails would be found but where no evidence of burden was submitted, where not even a cursory search of the emails was undertaken and where there were examples of the sorts of email sought produced from other employees, the court ordered Defendant to conduct the requested search; similarly, where Defendant offered no evidence of the alleged burden to review and produce the at-issue call recordings, where Plaintiff offered to bear the full cost of transcribing the messages, and where the court determined that the likelihood that the calls would be privileged was low, the court ordered Defendant to produce the raw audiofiles of its customer service calls and voicemail; notably, at the outset of its analysis the court noted that at least 10 attorneys had appeared for each party and that it was ?apparent that the issues at stake are significant,? including posing an ?existential risk? to Defendant and therefore concluded that ?any proportionality argument has a high bar to clear to be successful?

Nature of Case: Trademark infringement

Electronic Data Involved: Customer service emails, call recordings

Mathur v. Hospitality Props. Trust, No. 13-cv-7206, 2016 WL 520999 (N.D. Ill. Feb. 10, 2016)

Dec 01 2016

Key Insight: Addressing Plaintiff?s claim that defendant?s duty to preserve surveillance footage was triggered by the fact that it knew Defendant was robbed in its hotel, that the police were involved, and that both the police and Defendants ?were using the footage to investigate the incident? (perhaps evidenced by the preservation of different footage at the request of police), the court reasoned that ??mere knowledge of the accident and the possible causes of the accident? is not enough to create a duty to preserve evidence? and found that defendant?s spoliation claim failed

Nature of Case: Claims arising from robbery of hotel guest

Electronic Data Involved: Surveillance footage

Miller v. Bank of Am., N.A., 201 So.3d 1286 (Fl. Dist. Ct. App. 2016)

Dec 01 2016

Key Insight: On appeal from a final judgment of foreclosure, the Appellate Court found the Trial Court erred in admitting a screen shot of a computer-generated document purporting to reflect the sale of the mortgage note to Defendant, over Appellant?s hearsay objection. The original note was lost, so Appellee?s witness, who testified regarding the sale of the note, ?relied entirely upon a screen shot of a computer-generated document referred to as a Loan Transfer History (LNTH)? to establish Defendant?s right to foreclose. The witness testified she did not know who entered the information displayed in the screen shot, or if it was entirely computer generated. The Court held ?Ms. Allen?s affirmative answers to business record foundation questions do no overcome her demonstrated lack of knowledge about the creation, accuracy or trustworthiness of the LNTH document.?

Nature of Case: Foreclosure

Electronic Data Involved: Screen Shot

Procaps S.A. v. Patheon, Inc., NO. 12-24356-CIV-GOODMAN, 2016 WL 411017 (S.D. Fla. Feb. 2, 2016)

Dec 01 2016

Key Insight: Addressing taxable costs for electronic discovery, the court acknowledged the lack of any ?on-point Eleventh Circuit law? and deemed CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320, 1325 (Fed. Cir. 2013) ?to be the most persuasive circuit court opinion on the issue?; where even CBT Flint Partners LLC did not address costs related to OCR, however, the court indicated it would ?follow the fundamental principle that the costs statute is ?modest? and ?narrow? and ?limited to minor, incidental expenses? and excluded OCR costs from Defendant?s costs request

Nature of Case: Antitrust

Electronic Data Involved: Taxable costs for electronic discovery

Spear Mktg., Inc. v. Bancorpsouth Bank, No. 3:12-CV-3583-B, 2016 WL 193586 (N.D. Tex. Jan. 14, 2016)

Dec 01 2016

Key Insight: Court allowed Defendant to recover electronic conversion costs where conversions were undertaken to meet discovery requests of Plaintiff

Nature of Case: Theft of trade secrets

Electronic Data Involved: Taxable costs related to e-Discovery

Author - eDiscovery Import