Case Summaries – Page 11 – Electronic Discovery Law

Denson v. Corp. of the President of the Church of Jesus Christ of Latter-Day Saints (D. Utah, 2020)

Jun 29 2020

Key Insight: Plaintiff’s explanation regarding loss of evidence had changed and court ruled that defendant was entitled to have a third party collect and preserve the evidence. Plaintiff offered passwords to accounts, but court was concerned about possible destruction given Plaintiff’s changing explanation regarding social media accounts and recording.

Nature of Case: Sexual Assault

Electronic Data Involved: Electronic Devices and Cloud Based Accounts; Recording of conversation

Keywords: invasion of privacy, loss of evidence

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EEOC v. George Washington Univ. (D.D.C. June 26, 2020)

Jun 26 2020

Key Insight: Under FRE 502(d), inadvertent disclosures do not result in a waiver of privilege. While this rule can be utilized to reduce costs of pre-production privilege review, a party cannot be forced to engage in a discovery process that would likely result in the production of privileged documents.

Nature of Case: Employment Discrimination, Equal Pay, Title VII

Electronic Data Involved: Email

Case Summary

US EEOC v The George Washington University (D.D.C. 2020)

Jun 26 2020

Key Insight: Defendant was ordered to produce non-privileged emails responsive to RFP’s. Linear reivew proposed by Defendant wasn’t necessary and other paths existed. Concerns that potential production of privileged information was not enough to justify withholding. Defendant claimed a document by document review was needed, but court believed claw back provisions would be sufficient.

Nature of Case: employment discrimination

Electronic Data Involved: Email

Keywords: review process, 502, privilege

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Lawson v. Spirit Aerosystems, Inc. (D. Kan. June 18, 2020)

Jun 18 2020

Key Insight: Cost shifting of the TAR costs to Plaintiff was warranted based on an analysis of the proportionality factors. Plaintiff was warned to narrow his discovery multiple times, continued to demand overbroad criteria for TAR, was aware of the potential costs of TAR, and was aware the discovery he sought led to largely non-responsive documents. Moreover, Defendant produced responsive documents by conducting its own search and production of documents outside of the TAR process.

Nature of Case: Breach of Contract, Non-Compete

Electronic Data Involved: Electronic Documents Generally

Case Summary

Lawson v. Spirit Aerosystems (Kansas, 2020)

Jun 18 2020

Key Insight: When plaintiff was allowed to dictate defendant’s electronic discovery process, cost shifting to plaintiff is appropriate when electronic discovery performed was not proportionate to the case

Nature of Case: Employment non-compete agreement

Electronic Data Involved: Electronic records

Keywords: Cost shifting, technology assisted review, TAR, aerospace

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Optronic Techs., Inc. v. Ningbo Sunny Elec. Co. (N.D. Cal. June 1, 2020)

Jun 01 2020

Key Insight: Sanctions were warranted because counsel failed to adequately supervise Defendant’s discovery responses. While counsel is not required to personally conduct or directly supervise a client’s discovery collection and review process, they must make a reasonable effort to ensure the client produces all response documents. It is not sufficient to only provide guidance on how to search for documents without following up on whether the guidance was followed and what steps were actually taken.

Nature of Case: Antitrust

Electronic Data Involved: Electronic Documents

Case Summary

Optronic Techs., Inc. v. Ningbo Sunny Elec. Co. (N.D. Cal., 2020)

Jun 01 2020

Key Insight: Counsel must be involved with discovery to certify process followed. Counsel’s lack of involvement warranted sanctions in this case.

Nature of Case: Antitrust

Electronic Data Involved: Various ESI

Keywords: sanctions, certification

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Bolding v. Banner Bank (W.D. Wash. 2020)

May 22 2020

Key Insight: The plaintiffs, current and former mortgage/residential loan officers of defendant, filed a motion for spoliation sanctions and entry of default judgment against defendant based on the failure to preserve and intentional destruction of email accounts and calendar data. The court found: (1) the ESI was relevant to the claims in the lawsuit; (2) defendant breached its duties by intentionally destroying ESI after learning that employees had accused defendant of not paying overtime and after being threatened with a lawsuit, and even after the lawsuit was filed and formal requests for production were received, it paid to order the destruction of additional backup tapes; and (3) the evidence is irretrievably lost. The court declined to enter a default judgment, concluding “[t]he availability of less drastic sanctions that have the ability to mitigate the damage caused by defendant’s egregious destruction of evidence is a powerful factor that militates against imposing dispositive sanctions.”

Nature of Case: Wage and Hour Class Action

Electronic Data Involved: Email and calendar accounts

Case Summary

Bolding v. Banner Bank (W.D. Wash. May 22, 2020)

May 22 2020

Key Insight: Defendant deleted backup tapes after litigation hold notice issued. Spoliation occurred, but no default judgment

Nature of Case: class-action employment

Electronic Data Involved: Backup tapes

Keywords: sanctions, backup tapes, destruction

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Crossman v. Carrington Mortg. Servs., LLC, (M.D. Fla. May 4, 2020)

May 04 2020

Key Insight: Defendant moved to compel social media discovery from plaintiff. The court considered plaintiff’s objections based on relevancy, privacy, and vagueness. Plaintiff did not assert a proportionality argument. The court found that the discovery was relevant – “common sense dictates that information in [plaintiff’s] social medial . . . relates to her contemporaneous mental and emotional states and therefore relates to the injuries she claims she suffered at the hands of [defendant], including loss of enjoyment of life.” As to privacy, a confidentiality agreement suffices to protect plaintiff’s interests. As to vagueness, plaintiff’s counsel can “reasonably and naturally” interpret the requests in view of the claims and defenses through communication with opposing counsel. Lastly, an award of expenses was unwarranted since “reasonable minds can differ on the dispute.”

Nature of Case: Employment Discrimination

Electronic Data Involved: Social Media

Case Summary

Catagory:Case Summaries