Case Summaries – Page 117 – Electronic Discovery Law

Strauch v. Computer Sciences Corp., No. 3:14 CV 956 (JBA), 2015 WL 7458506 (D. conn. Nov. 24, 2015)

Dec 01 2015

Key Insight: Court addressed parties? disagreement regarding a search and production protocol and considering three options presented by Plaintiff (1) ?sampling and iterative refinement?; 2) a quick peek at all documents to designate a limited number for production; or 3) production of all documents with search hits subject to a clawback agreement) and defendant?s resistance based in proportionality, reasoned that ?[g]iven that there are 1,047 opt-in plaintiffs, ?potentially hundreds more as class members? in the four states . . . and a possible verdict in eight or nine digits if plaintiffs are successful, defendant?s proportionality argument is unavailing?; court ordered defendant to search files of 8 custodians using its own proposed terms (thus creating a presumption of relevancy) and further ordered that defendant could remove documents from production ?only if they are clearly and undeniably irrelevant? or privileged

Nature of Case: Class action

Electronic Data Involved: ESi

Thermoset Corp. v. Building Materials Corp. of Am., No. 14-60268-CIV, 2015 WL 156310 (S.D. Fla. Apr. 8, 2015)

Dec 01 2015

Key Insight: Applying the elements of Fed. R. Evid. 502(b), court concluded that whether production was ?inadvertent? should be determined by asking whether the party intended to produce the document or whether it was a mistake rather than looking at court-identified factors to determine whether the ??inadvertent? element? was satisfied and found: 1) that the at-issue emails were produced by mistake, and thus inadvertently, 2) that reasonable steps to prevent the disclosure were taken where counsel identified the documents as privileged after personally inspecting them but where they were nonetheless produced inadvertently among the other 1,000 pages produced in response to the relevant request, and 3) that prompt steps were taken to prevent the error where counsel informed opposing counsel of the inadvertent production on the same day he discovered it; thus, the inadvertent production did not result in waiver

Nature of Case: Claims arising from defective roofing adhesive

Electronic Data Involved: Emails

Bruno v. Bozzuto?s, Inc., No. 3:09-CV-00874, 2015 WL 5098952 (M.D. Pa. Aug. 31, 2015)

Dec 01 2015

Key Insight: On motion for reconsideration of three discovery orders, the court found no error in the lower court?s determination that Plaintiff?s admitted contemplation of litigation was sufficient to trigger her obligation to preserve, noting the lower court?s reliance on case law that ?the knowledge of a potential ? claim is deemed sufficient to impose a duty to preserve evidence?; court indicated that evidence contradicting Plaintiff?s claim that a third party still maintained the at-issue records was sufficient to allow the court to revisit the issue and to find that plaintiff acted in bad faith and also noted that in the Third Circuit, bad faith was not required to impose an adverse inference; addressing prejudice, court dismissed the proposition that Defendant?s access to at-issue evidence years earlier was sufficient to undercut any prejudice, noting that Defendant?s experts had not had access to the evidence; court found no clear error in the imposition of monetary sanctions for spoliation of evidence prior to trial

Electronic Data Involved: ESI

Osborne v. Billings Clinic, No. CV 14-126-BLG-SPW, 2015 WL 1412626 (D. Mont. Mar. 26, 2015)

Dec 01 2015

Key Insight: Where requesting party failed to request a specific format of production and the responding party therefore produced in PDFs, the court reasoned that Defendant failed to assert that it could not produce the information as it was originally kept and that Plaintiff should not be at a ?disadvantage by having to slog through thousands of pages of records in unusable form? and granted Plaintiff?s motion to compel production of the at-issue medical records in the manner in which they were maintained

Electronic Data Involved: Electronically stored medical records

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

Arkansas River Power Auth. v. Babcock & Wilcox Power Generation Grp., Inc., No. 14-cv-00368-CMA-NYW, 2015 WL 2128312 (D. Colo. May 5, 2015)

Dec 01 2015

Key Insight: Addressing several disputes, court concluded that parties having agreed on an ESI production ?must only comply with Rule 34(b)(2)(E)(ii)? and that the question was therefore whether the defendant ?produced its ESI in the form in which it is ordinarily maintained or in a reasonably usable form or forms. The rule clearly requires one or the other, but not both.?; where defendant produced majority of its documents in a reasonably usable form (TIFF), court declined to compel production of additional metadata

Nature of Case: Breach of contract and related claims

Electronic Data Involved: ESI

Tyler v. City of San Diego, No. 14-cv-01179-GPC-JLB, 2015 WL 1955049 (S.D. Cal. Apr. 29, 2015)

Dec 01 2015

Key Insight: Court granted Plaintiffs? Motion to Compel documents where Defendant rejected Plaintiffs? proposed search terms and protocols, but did not use search terms and protocols it deemed reasonable to produce those documents that were readily accessible and admittedly relevant. Court also refused to limit the locations Defendant was required to search for relevant documents saying, ?The City is not excused from conducting a reasonable search for all non-privileged responsive documents in City?s custody and control, regardless of location.?

Nature of Case: Sexual Harassment

Electronic Data Involved: Database

SFP Works LLC v. Buffalo Armory LLC, No. 14-13575, 2015 WL 7294580 (E.D. Mich. Nov. 19, 2015)

Dec 01 2015

Key Insight: Where Plaintiff alleged it could not access the data produced by defendant?even with the use of specialized software provided by Defendant and the assistance of a third party vendor?and refused the options provided by defendant insisting instead that defendant must re-load the date to ensure it was not corrupted, the court noted Plaintiff?s failure to timely seek a solution to the discovery problems or to mitigate the difficulties by pursuing any of the offered remedial measures and denied the motion to compel access to the at-issue information

Nature of Case: Patent infringement

Electronic Data Involved: ESI (“operational data”)

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

Nationwide Mut. Fire Ins. Co. v. Kelt, Inc., No. 6:14-cv-740-Orl-41TBS, 2015 WL 1470971 (M.D. Fla. Mar. 31, 2015)

Dec 01 2015

Key Insight: Where Plaintiff produced documents ?en masse? without any indication of what was produced or what request the documents were responsive to and claimed that they were produced as kept in the usual course of business and thus in compliance with Rule 34, the court reasoned that a party who produces documents as kept in the usual course has the burden of proving they were in fact produced in that manner and that a party may not wait until a motion to compel is filed to provide that information and concluded that Plaintiff had not complied with the requirements of Rule 34(b)(2)(E)(i) and ordered that Plaintiff must identify by Bates number which documents were responsive to each request

Electronic Data Involved: ESI

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