Case Summaries – Page 114 – Electronic Discovery Law

Knauf Insulation, LLC v. Johns Manville Corp., No. 1:15-cv-00111-WTL-MJD, 2015 WL 7089725 (S.D. Ind. Nov. 13, 2015)

Dec 01 2015

Key Insight: Where Defendants identified 38 potential email custodians who may possess relevant ESI but proposed to load the emails of only ten custodians to save money and ?facilitate the predictive coding process? and where Plaintiff indicated that Defendant refused to informally disclose information sufficient to evaluate the importance of each custodian, the court briefly opined re: e-Discovery and the lack of any guarantee that all relevant documents will be found and then, reasoning that it had no evidence with which to weigh the likelihood that the 28 ?tangential custodians? would have relevant information but that in ?a high value? case the burden of $18,000 (the amount Defendant proposed to save) did not outweigh the potential benefit to Plaintiff of receiving the emails, declined Defendants? request to limit custodians; regarding cost-shifting, the court ordered that if the search of the 28 additional custodians returned fewer than 500 responsive documents Plaintiff would bear the cost of loading the materials but that if more than 500 were identified, Defendant would bear the costs

Nature of Case: Patent infringement

Electronic Data Involved: Email

East Bridge Lofts Prop. Assoc., Inc. v. Crum & Forster Specialty Ins. Co., No. 2:14-cv-2567-RMC, 2015 WL 12831731 (D.S.C. June 18, 2015)

Dec 01 2015

Key Insight: Where Plaintiff sought forensic examination of email accounts not searched by Defendants, the court acknowledged the ?expense and difficulty? of such examinations and reasoned that ?mere skepticism? that relevant information has not been produced is insufficient to warrant such drastic measures and thus denied the request; court reasoned Defendant had failed to reveal the search terms utilized to identify responsive documents in searches of three other email accounts and that Plaintiffs had established the relevancy of all of the requested accounts and ordered the parties to meet and confer as to an appropriate search methodology for all accounts

Nature of Case: Insurance litigation: bad faith

Electronic Data Involved: Forensic examination of email accounts

S.E.C. v. Bonan Huang, No. 15-269, 2015 WL 5611644 (E.D. Pa. Sept. 23, 2015)

Dec 01 2015

Key Insight: Court denied ?Plaintiffs? motion to compel Defendant s to disclose their secret personal passcodes for smartphones owned by their former employer who, as a matter of policy, required their employees to keep their personal passcodes secret from everyone? upon concluding that ?[s]ince the passcodes to Defendants? work-issued smartphones are not corporate records, the act of producing their personal passcodes is testimonial in nature and Defendants properly invoke their fifth Amendment privilege? and that the ?foregone conclusion doctrine? did not apply ?as the SEC Cannot show with ?reasonable particularity? the existence or location of the documents it seeks?

Electronic Data Involved: Passcodes or passwords to smartphones

Health Mgmt. Assocs., Inc. v. Salyer, No. 14-14337-CIV-ROSENBERG/LYNCH, 2015 WL 12778793 (S.D. Fla. Aug. 19, 2015)

Dec 01 2015

Key Insight: Court granted motion to compel forensic examination of Defendant?s ?personal computer devices and his personal email account? where Defendant claimed that his mobile phone was damaged, that a thumb drive was lost, and that his laptop stopped working, and where Defendant failed to search his email and gave inaccurate ?representations? about it; court admonished Plaintiff ?to give special care? to Defendant?s privacy and ordered that Defendant was allowed to be present for the search, and that the search criteria be prepared in advance and chosen to limit the scope to matters ?directly relevant to its claims for relief?

Electronic Data Involved: Forensic examination of computer, devices, email

Lutzeier v. Citigroup Inc., No. 4:14-cv-00183-RLW, 2015 WL 430196 (E.D. Mo. Feb 2, 2015)

Dec 01 2015

Key Insight: Addressing Plaintiff?s motion to add custodians, the court granted the motion, in part, but declined to compel the addition of high-level executives absent a showing that they had ?unique or personal knowledge of the subject matter that warrants their information?; Court found that the current ?search criteria adequately ensure[d]? the production of relevant documents and declined Plaintiff?s request for additional search terms except the phrase ?consent order? where confusion existed as to the existence of ?other? consent orders relevant to the case; where plaintiff was unsatisfied with Defendant?s production of more than 46,000 documents ?without providing any indication as to which documents are responsive to which of Plaintiff?s fifty-eight (58 ) enumerated requests,? but where the defendant represented that their production was ?fully text-searchable and contain[s] metadata permitting Plaintiff to identify, among other things, the custodians of the document, recipients, date and other key information,? the court found that the production was ?in a reasonably useable form or forms and/or the production is searchable, sortable and paired with relevant metadata? and thus was compliant with the parties? ESI agreement and with Rule 34

Nature of Case: Wrongful discharge; Age Discrimination; Dodd Frank; Sarbanes-Oxley

Electronic Data Involved: ESI

Horse v. BNSF R.R. Co., —P.3d—, 2015 WL 3444432 (Mont. May 29, 2015)

Dec 01 2015

Key Insight: On appeal, Supreme Court found that lower court?s failure to order default judgment for Defendant?s spoliation of potentially relevant surveillance video despite a request for preservation and the sophistication and experience to understand the need to preserve was not an abuse of discretion but did find that the failure to award a meaningful sanction was an abuse of discretion where the instruction that Defendant would not be allowed to discuss the surveillance video?which it claimed showed no evidence of the at-issue accident?unless Plaintiff brought it up put the Plaintiff in a bind such that if he brought up the destruction of the video, Defendant could argue it contained nothing, and thus take advantage of the video?s unavailability to rebut their claim; the case was remanded for a new trial

Nature of Case: Work-related injury

Electronic Data Involved: Surveillance video

Farley v. Callais & Sons LLC, No. 14-2550, 2015 WL 4730729 (E.D. La. Aug. 10, 2015)

Dec 01 2015

Key Insight: Court declined to compel production of log in information and all Facebook information posted since the underlying accident but granted the motion in part and compelled the production of certain categories of information to be identified by a review of Plaintiff?s account by his counsel; courts also ordered submission of sworn declaration that all such information was produced and that counsel ensured preservation of the Facebook materials lest a dispute arise in future

Nature of Case: Personal injury

Electronic Data Involved: Social Media

United States v. Dish Network, LLC, No. 09-3073, 2015 WL 5970446 (C.D. Ill. Oct. 13, 2015)

Dec 01 2015

Key Insight: For defendant?s failure to preserve and produce relevant evidence, copies or versions of which were discovered on a third party?s hard drive (e.g. correspondence between Defendant?s employee and the third party that were not preserved and produced by the defendant), the court found that Plaintiff ?suffered some prejudice? and thus sanctioned Defendant by taking it as ?established fact? that Defendant had similar communications with all of its ?Order Entry Retailers? (of which the relevant third party was one) of the same ?substantive type and quantity? as those discovered on the third party?s hard drive

Nature of Case: FTC Investigation: TCPA

Electronic Data Involved: ESI, email

Parsi v. Daioleslam, 778 F.3d 116 (D.C. Cir. 2015)

Dec 01 2015

Key Insight: Appellate court affirmed in part and reversed in part the District Court?s imposition of monetary sanctions for Plaintiff?s many discovery violations, including repeated violation of the court?s orders resulting in belated production of relevant evidence, and found no abuse of discretion for awarding expenses related to Defendants? third motion to compel Plaintiff?s production of relevant hardware, expenses related to the forensic imaging of Plaintiff?s hard drive, expenses related to the redeposition of Plaintiff?s officers (after delayed production of relevant evidence), and litigation expenses as a sanction for withholding emails

Nature of Case: Defamation

Electronic Data Involved: ESI (calendar items, database contents, other)

Lanteri v. Credit Protection Assoc. LP, No. 1:13-cv-1501-WTL-DKL, 2015 WL 6607494 (S.D. Ind. Apr. 3, 2015)

Dec 01 2015

Key Insight: Court denied motion for protective order where Defendant?s ?general assertions of hardship and burden? re: the at-issue search were insufficient to justify a protective order, and explained that they had ?offered no affidavits or evidence of any kind to substantiate the general assertion of ?disruption? to their business? and had not ?shown with specificity that the proposed search would cause and undue burden and is thus improper?

Nature of Case: TCPA, FCPA

Electronic Data Involved: Allegedly burdensome search of ESI

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