Case Summaries – Page 117 – Electronic Discovery Law

F & J Samame, Inc. v. Arco Iris Ice Cream, SA?13?CV?365?XR, 2015 WL 4068575 (W.D. Tex. Jul. 2, 2015)

Dec 01 2015

Key Insight: Court granted in part plaintiff?s motion for attorneys? fees, where defendant had used software to wipe a PC and a laptop, deleting and overwriting more than 62,000 files, and violated a court order, and stalled the discovery process. Court denied in part plaintiff?s motion for sanctions, however, instead granting leave for new depositions, saying that while its order ?does not address the loss of evidence that may establish willful infringement,? the alleged infringing materials ?are available for the jury to assess whether infringement has incurred or not.?

Nature of Case: Trade dress and Trademark infringement

Electronic Data Involved: Email and ESI on hard drive

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

In re VERP Inv., LLC, 457 S.W.3d 255 (Tex. Ct. App. 2015)

Dec 01 2015

Key Insight: Trial court abused its discretion by ordering forensic examination of landlord?s hard drive where ?[t]he procedural protections identified in In re Weekley Homes require that ?the requesting party must show that the responding party has somehow defaulted in its obligation to search its records and produce the requested data,? and that ?the responding party?s production ?has been inadequate and that a search of the opponent?s [electronic storage device] could recover … relevant materials[],?? where the tenant provided no evidentiary basis for his suspicion that the at-issue invoices were falsified, and where the tenant ?did not put on any evidence demonstrating that the kind of information he sought could be retrieved by the examination ultimately ordered by the trial court and the record [wa]s devoid of any attempt by Nguyen to explain this search methodology except for his counsel?s explanation that the search would attempt to exclude communications with counsel?

Electronic Data Involved: Accounting-related ESI

Pinkney v. Winn-Dixie Stores, Inc., No. CV214-075, 2015 WL 171236 (S.D. Ga Jan. 13, 2015)

Dec 01 2015

Key Insight: Plaintiff moved for spoliation sanctions after Defendant stated in deposition they took accident scene photographs, but did not provide the photographs and stated all accident photographs had been provided. Plaintiff claimed Defendant?s sole possession was circumstantial evidence Defendant acted affirmatively in destroying the photographs. However, Court would not infer bad faith because it was possible ?the photographs were lost or destroyed haphazardly,? and concluded circumstantial evidence cannot prove bad faith ?without any evidence that the loss or destruction of the photographs was, or could only be, due to a deliberate, intentional act of Defendant or its agent.?

Nature of Case: Personal Injury

Electronic Data Involved: Photographs of slip and fall scene

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

Appler v. Mead Johnson & Co., LLC, NO. 3:14-cv-166-RLY-WGH, 2015 WL 5793236 (S.D. Ind. Oct. 1, 2015)

Dec 01 2015

Key Insight: Despite ?attenuated? arguments in favor of production, court found that social media content of Plaintiff?s supervisor and Defendant?s human resources representative could contain relevant information and, pursuant to a pre-existing protective order restricting disbursement of discoverable information, concluded that Plaintiff?s counsel could review the individuals’ social networking sites (SNS) content for relevant remarks; court ordered hearing to discuss procedures for searching and limiting SNS content, the costs of such a search, who should conduct the search, etc.

Nature of Case: Employment litigation

Electronic Data Involved: Social media (Facebook, MySpace)

H.M. Elecs., Inc. v. R.F. Techs., Inc., No. 12cv28840-BAS-MDD, 2015 WL 4714908 (S.D. cal. Aug. 7, 2015)

Dec 01 2015

Key Insight: For multiple discovery violations by Defendant and counsel, including improper certification of discovery responses pursuant to Rule 26(g), failure to issue a litigation hold or appropriately supervise discovery, and intentional deletion of responsive materials and delayed production, the court imposed multiple discovery sanctions, including attorneys? fees and costs, issue sanctions, and an adverse inference; notably, the court indicated sanctions would have been imposed under New Rule 37(e), because the court found that the at-issue ESI was lost with the intent to deprive Plaintiff of the information?s use in the litigation; Update: Compensatory sanctions vacated by District Court upon determination that parties? settlement mooted the issue of compensatory sanctions (—F.Supp.3d—, 2016 WL 1267385 (S.D. Cal. Mar. 15, 2016))

Nature of Case: Trademark infringement, false designation of origin, trade dress infringement, trade libel, unfair competition and interference with prospective economic advantage

Electronic Data Involved: ESI

Split Cove, Inc. v. Trek Bicycle Corp., No. 12-cv-639-wmc, 2015 WL 9593630 (W.D. Wis. Dec. 31, 2015)

Dec 01 2015

Key Insight: Following discussion of prior decisions in the 3rd, 4th, 6th, 9th and federal circuit courts, the District Court adopted ?the [Third Circuit?s] Race Tires approach, with the caveat that the costs of copying metadata and hard drives be included for reasons stated well [by the Federal Circuit and the Sixth Circuit] in CBT Flint and Colosi? and reduced the award of costs related to e-Discovery ?to include only costs for Bates stamping, shipping and delivery of electronic documents, native file and email conversions, and TIFF image creation and conversion?

Nature of Case: Patent Infringement

Electronic Data Involved: Taxable costs of e-Discovery

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

Hespe v. City of Chicago, No. 13 C 7998, 2016 WL 7240754 (N.D. Ill. Dec. 15, 2015)

Dec 01 2015

Key Insight: Where a magistrate judge found the requested inspection of Plaintiff?s devices was not proportional to the needs of the case ?especially? in light of Plaintiff?s privacy and confidentiality interests despite the production of thousands of text messages by Plaintiffs? mother (which Plaintiff confirmed she had sent to her for safekeeping) and alleged inconsistent testimony from the Plaintiff, the District Court Judge overruling Defendants? objections acknowledged the need for caution in allowing such inspections (including by citing the 2006 Advisory Committee Notes to Fed. R. Civ. P. 34) absent evidence of a responding party?s failure as to its discovery obligations or a ?substantiated connection? between the at-issue device and the claims of the case and concluded that neither had been established in the present case

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, text messages

Catagory:Case Summaries