Case Summaries – Page 112 – Electronic Discovery Law

Superior Performers Inc. v. Meaike, No. 1:13CV1149, 2015 WL 471429 (M.D.N.C. Feb. 4, 2015)

Dec 01 2015

Key Insight: Where Plaintiff?s agent deleted an original voicemail from his phone by way of a factory reset but had produced a copy and also claimed to have transferred the voicemail to his new phone and where Defendants sought sanctions and argued that the deletion would prevent them from showing the voicemail was fabricated, as they suspected, the court declined to impose sanctions for the alleged fabrication, despite evidence the presentation of evidence that could lead to that conclusion, but did order that Plaintiff be prevented from using the voicemail at trial as a sanction for spoliation, reasoning that although the voicemail was not on one of Plaintiff?s phones (but rather on its agent?s), it ?likely? had a duty to preserve the evidence and that Plaintiff did not attempt to provide access to the phone or provide notice of the voicemail?s possible destruction

Nature of Case: Enforcement of Restrictive Covenants

Electronic Data Involved: Voicemail

HMS Holdings Corp. v. Arendt, NO. A754/2014, 2015 WL 2403099 (N.Y. Sup. Ct. May 19, 2015)

Dec 01 2015

Key Insight: For one defendant?s repeated use of a cleaning software (?Disk Utility? and its ?Secure Erase Free Space? function) to delete files and loss of a relevant hard drive without an adequate explanation and for another defendant?s loss of relevant ESI, including her intentional deletion of information from the desktop registry and her disposal of her cell phone (which she notably was unaware had been automatically backed up each time it was connected to her computer), ongoing deletion of text messages (on her new phone), and misrepresentations about when the old phone was discarded, the court found that a mandatory adverse inference was warranted and rejected Defendants? argument that the court should decline to employ the adverse inference at the preliminary injunction state, reasoning that the objective of promoting fairness was best served by ?employing an adverse inference at all relevant states of the litigation?; court also ordered defendants to pay Plaintiff?s attorneys fees without seeking reimbursement from their new employer and indicated its intention to forward its decision to the NY Bar in light of one defendant?s status as an attorney

Nature of Case: Misappropriation of trade secrets, breach of “post-employment covenants”

Electronic Data Involved: ESI, hard drive, text messages (iphone)

Ralser v. Winn Dixie Stores, Inc., No. 13-2799, 2015 WL 5016351 (E.D. La. Aug. 21, 2015)

Dec 01 2015

Key Insight: Where Defendant was unable to produce the original version of a particularly relevant document in native format and claimed the loss resulted from the automatic deletion of the original version pursuant to the company?s document retention policy, the court declined to impose sanctions reasoning that a later version of the document was provided to Defendant?s legal department, that it was ?not obvious? that prior versions needed to be preserved and that by the time Plaintiff filed his lawsuit following termination, a year had passed and the document would have been destroyed under the retention policy; the court further reasoned:? While this destruction still occurred during the litigation hold, the fact that Winn Dixie?s normal retention policy called for the document?s destruction undermines a finding of bad faith because Winn?Dixie?s failure to adjust the document retention system to comply with the litigation hold signified an omission, and not a commission. In other words, Winn?Dixie?s failure to retain the electronic document was not the result of a directed action to delete the document but rather a failure to turn off the automatic deletion mechanism. Such action, at best, amounts to negligence and does not rise to the level of bad faith.?

Nature of Case: Employment litigation

Electronic Data Involved: Original version of relevant ESI

Boxer F2 L.P. v. Flamingo West, Ltd. No. 14?cv?00317?PAB?MJW, 2015 WL 2106101 (D. Colo. May 04, 2015)

Dec 01 2015

Key Insight: Court said it appreciated defendants? decision to ultimately comply with its discovery obligations by producing 16,600 pages of accounting records the day after the motions hearing on the matter, but said that the untimely disclosure did not have any bearing on the fact that defendants did not allow plaintiffs access to all of their accounting records and altered those records to which they did allow access to conceal material information without valid justification. Finding that defendants acted in bad faith for having failed to comply with three court orders compelling discovery and having done so knowingly and intentionally, court granted motion for sanctions, including adverse inferences and cost and fees.

Nature of Case: Lease

Electronic Data Involved: Accounting records

Bruno v. Bozutto?s, Inc., No. 3:09-cv-874, 2015 WL 7294464 (M.D. Pa. Nov. 19, 2015)

Dec 01 2015

Key Insight: Where Plaintiff? spoliation of financial information forced experts to rely upon ?unverified secondhand data,? court found the reports ?exhibit[ed] neither sufficient reliability nor the requisite fit required for admission in federal practice? and granted Defendant?s motion to exclude

Nature of Case: Breach of contract, promissory estoppel

Electronic Data Involved: Financial information (ESI, hard copy)

Loop AI Labs Inc. v. Gatti, 2015 WL 1090180 (N.D.Cal. Mar. 12, 2015)

Dec 01 2015

Key Insight: Court denied plaintiff?s motion for temporary restraining order which requested restrictions on defendant?s assets, and orders prohibiting destruction of evidence, expediting discovery, allowing plaintiff access to defendant?s email and social media accounts, and for the return of a laptop because the court found plaintiff failed to demonstrate it was likely to suffer irreparable harm absent injunctive relief. In asserting it would suffer irreparable harm, plaintiff argued defendant had demonstrated she would not observe her obligation to preserve evidence, but provided no evidence in support of this claim. Stating that ?suspicions are not a proper ground for injunctive relief,? the Court noted that counsel for each defendant were ?expected to advise their clients of their duty to preserve potentially relevant evidence and the serious consequences for failing to do so,? but denied further relief.

Nature of Case: Misappropriation of Trade Secrets; Breach of Contract

Electronic Data Involved: Email, social media, laptop

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

Chung v. El Paso School Dist. #11, No. 14-cv-01520-KLM, 2015 WL 7253334 (D. Colo. Nov. 17, 2015)

Dec 01 2015

Key Insight: Court held clerk did not err in awarding costs for ?loading documents into an electronic data base for production to Plaintiff on computer disks during discovery.?

Electronic Data Involved: Taxable costs

Davenport v. Charter Comm?cns., LLC, No. 2015 WL 1286372 (E.D. Mo. Mar. 20, 2015)

Dec 01 2015

Key Insight: Court denied Plaintiffs? motion to compel re-production of time records in .xls format where Defendant first produced the records in a searchable PDF format, generally found by courts to be ?reasonably usable,? and where the parties? discovery plan contemplated the possible reproduction of certain information upon a showing of good cause in situations where the data or metadata was not adequately captured, but where the court found that Plaintiffs desire to manipulate the documents with greater ease did not constitute good cause; court stated: ?Such difficulties would have been a good reason for Plaintiffs to specify a particular format in their request for production, but are not sufficient ?good cause? to force Defendant to reformat and produce data which it has already provided.?

Nature of Case: FLSA Collective Action

Electronic Data Involved: Electronic Time Clock Records

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

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