Case Summaries – Page 108 – Electronic Discovery Law

In re Delta/AirTran Baggage Fee Antitrust Litig., No. 1:09-md-2089-TCB, 2015 WL 4635729 (N.D. Ga. Aug. 3, 2015)

Dec 01 2015

Key Insight: Where Special Master declined to recommend spoliation sanctions but recommended $1,855,255.09 in monetary sanctions ?to compensate Plaintiffs for the additional time and expenses that they have incurred as a result of Delta?s failure to comply with discovery obligations,? including Defendant?s delayed identification and production of relevant evidence (including backup tapes and other ESI), the District Court agreed that monetary sanctions were appropriate but found that a higher amount was warranted and thus increased the monetary sanctions to $2,718,795.05

Nature of Case: Antitrust (Bag fees)

Electronic Data Involved: ESI, backup tapes

Grove City Veterinary Serv. LLC v. Charter Practices Int?l, LLC, No. 3:13-cv-02276-AC, 2015 WL 4937393 (D. Or. Aug. 18, 2015)

Dec 01 2015

Key Insight: Where Plaintiff had a ?continuing business relationship? with Defendant despite the pending litigation and Defendant hosted Plaintiff?s emails on its servers, court rejected Plaintiff?s claim that Defendant?s changes to the email-archiving system resulted in a loss of Plaintiff?s emails where Plaintiff could provide no evidence of Defendant?s alleged access to Plaintiff?s emails and where Defendant credibly posited that Plaintiff had accidentally ?dragged and dropped? the missing email folders into the ?Notes? tab of the archived mailbox (where the emails were ultimately located); court also declined to impose sanctions for Defendant?s initial refusal to assist Plaintiff to locate the emails (that it had requested) where it had no duty to do so, and where despite that lack of duty, it nonetheless ultimately made a good faith, but unsuccessful, search effort; Defendant?s litigation hold on Plaintiff?s email account to retain copies of messages that anyone attempted to delete did not warrant sanctions, despite Plaintiff?s claim that the hold was ?worse than spoliation? because ?unlike evidence unlawfully destroyed by a party, evidence placed in a litigation hold is still available to the party implementing the litigation hold?

Nature of Case: Breach of contract

Electronic Data Involved: Emails

Spotted Horse v. BNSF Ry. Co., 350 P.3d 52 (Mont. 2015)

Dec 01 2015

Key Insight: Where district court abused its discretion when it declined to impose a meaningful sanction on railroad for allowing destruction of accident scene video footage during its pre-litigation investigation, the Court remanded for a new trial and ordered the district court to fashion a sanction that would satisfy the remedial and deterrent goals of sanctions for the spoliation of evidence, but the Court also said that district court?s refusal to grant injured machinist?s request for a default judgment as an evidentiary sanction for spoliation was not an abuse of discretion because it was not possible to know if the destruction was intentional or inadvertent

Nature of Case: Workplace injury

Electronic Data Involved: Digital video surveillance recording

Humphreys & Partners Architects L.P. v. Lessard Design, Inc., No. 1:13-cv-433, —F.Supp.3d—, 2015 WL 7176010 (E.D. Va. Nov. 13, 2015)

Dec 01 2015

Key Insight: Court declined to allow recovery for ?electronic discovery vendor fees? because they are ?outside the scope of Section 1920? (28 U.S.C. 1920)

Nature of Case: Copyright infringement

Electronic Data Involved: Taxable Costs

Themis Bar Review, LLC v. Kaplan, Inc., No. 14CV208-L (BLM), 2015 WL 3397877 (S.D. Cal. May 26, 2015)

Dec 01 2015

Key Insight: Where the parties agreed to a Joint Discovery Plan requiring production in PDF unless metadata was requested and that in such cases the parties should meet and confer to discuss the format of production in good faith and where Defendant made such a request and sought to confer but was ignored, court ordered Plaintiff to re-produce emails with associated metadata at its own expense

Electronic Data Involved: Emails and metadata

Broadband iTV, Inc. v. Hawaiian Telecom, Inc., NO. 14-00169 ACK-RLP, 2015 WL 9274092 (D. Haw. Nov. 25, 2015)

Dec 01 2015

Key Insight: Costs generically described as ?discovery services? and broken down as ?Active Hosting,? ?Nearline Hosting,? and ?User Access Fee? were denied where the generic descriptions were insufficient to meet the standard for specificity in the Ninth Circuit and where the descriptions failed to indicate that the fees were incurred for making copies

Electronic Data Involved: ESI (Taxable costs under 1920(4))

Donley v Donley, 2015 Ark. App. 496 (Ark. Ct. App. Sept. 23, 2015)

Dec 01 2015

Key Insight: Circuit court did not abuse its discretion in admitting screen shots from Defendant?s ex-boyfriend?s Facebook account where the appellate court determined that Defendant?s admission that she was ?Meka Rochelle? – the at-issue commenter shown in the screen shots – and admissions that she authored one of the comments and that she was the person depicted in the photos ?sufficiently tie[d] her to the comments and the photos? and that Defendant?s claim that she did not recall making the comments went to weight , not admissibility

Electronic Data Involved: Social Media (Facebook)

Ballai v. Kiewit Power Constructors, Co., No. 110166, 2015 WL 423795 (Kan. Ct. App. Jan. 23, 2015)

Dec 01 2015

Key Insight: Court of Appeals of Kansas found no abuse of discretion by the district court for failing to order sanctions related to the recycling of the laptop computer used by appellant during his employment, as the district court did not issue an order to preserve and there is no statutory or common-law duty to preserve evidence in Kansas; court further found no abuse of discretion by the district court for excluding evidence of recycling the computer; court also found that a chat log was relevant, material, and probative and the appellant was protected from prejudice because the district court only allowed the redacted version of the chat log into evidence.

Nature of Case: Employment

Electronic Data Involved: Laptop; Chat Log

In re Milo?s Kitchen Dog Treats Consol. Cases, No. 12-1011, —F.R.D.—, 2015 WL 1650963 (W.D. Pa. Apr. 14, 2015)

Dec 01 2015

Key Insight: Upon Defendant?s motion to compel production of all of Plaintiff?s Facebook materials, the court found ?nothing improper? in Plaintiff?s redaction of irrelevant information from her prior Facebook production, distinguishing the present case from Largent v. Reed, 2011 WL 5632688 (Pa. Ct. Com. Pl. Nov. 8, 2011) in which the court compelled production of Plaintiff?s username and password, and reasoned, in part, that Plaintiff had already provided Facebook information relevant to the case and that Defendant failed to show that further production would result in more relevant information or that Plaintiff?s counsel?s assessment of relevance was questionable

Nature of Case: Claims related to harm to pet from jerky treats

Electronic Data Involved: Facebook (Social Media)

United States v. Lizarraga-Tirado, —F.3d—, 2015 WL 3772772 (9th Cir. June 18, 2015)

Dec 01 2015

Key Insight: Court found that Google Earth satellite image was not hearsay because it makes no assertion and also found that ?[a] tack placed by the Google Earth program and automatically labeled with GPS coordinates isn?t? hearsay? because the ?relevant assertion isn?t made by a person? its made by the Google Earth program? and therefore, there is no statement as defined by the hearsay rule (where the rule applies ?only to out-of-court statements? and where ?it defines a statement as ?a person?s oral assertion, written assertion, or nonverbal conduct?); however, ?[i]f the tack is place d manually and then labeled . . . its classic hearsay?

Nature of Case: Illegal re-entry into the U.S.A.

Electronic Data Involved: Google Earth image and tack

Catagory:Case Summaries