Case Summaries – Page 123 – Electronic Discovery Law

Smith v. Hillshire Brands, No. 13-2605-CM, 2014 WL 2804188 (D. Kan. June 20, 2014)

Dec 01 2014

Key Insight: Court ordered plaintiff to respond to request for social networking documents that directly referenced or mentioned defendant or the matters raised in plaintiff?s complaint; court found request for production of complete copies of plaintiff?s social networking accounts to be overly broad and indicated its intention to ?follow what appears to be the intermediate course? i.e., allowing defendant ?to discover not the contents of plaintiff’s entire social networking activity, but any content that reveals plaintiff’s emotions or mental state, or content that refers to events that could reasonably be expected to produce in plaintiff a significant emotion or mental state? and ordered plaintiff to produce all such documents

Nature of Case: Violations of Title VII, Family Medical Leave Act

Electronic Data Involved: Contents of social networking accounts (Facebook, MySpace, Twitter)

Wang v. Regatta Condo. Assoc., No. 1-12-3450, 2014 WL 632412 (Ill. App. Ct. Feb. 13, 2014)

Dec 01 2014

Key Insight: No error for trial court to grant summary judgment on plaintiff’s spoliation claim, a form of negligence under Illinois law, where there was no duty to preserve surveillance video, the record did not establish that defendants’ failure to preserve the video was intentional or that the video was adverse, and even if defendants had a duty to preserve the video, plaintiff failed to prove sufficient facts to establish that the loss of the video was the proximate cause of plaintiff’s inability to prove her underlying lawsuit

Nature of Case: Slip-and-fall

Electronic Data Involved: Surveillance video footage of skip-and-fall accident

Capital Ventures Int?l v. J.P. Morgan Mortgage Acquisition Corp., No. 12-10085-RWZ, 2014 WL 1431124 (D. Mass. Apr. 14, 2014)

Dec 01 2014

Key Insight: Plaintiff’s request for all RMBS-related documents that defendants previously produced in other lawsuits or to “any congressional body, regulatory agency, law enforcement agency or person” was overbroad and of speculative relevance; court granted motion to compel but adopted defendants’ proposal to run agreed-upon search terms over their productions to the SEC and NY attorney general, deeming such method sufficient to capture materials relevant to pending action; court also extended relevant time period for electronic searches

Nature of Case: Claims under the Massachussetts Uniform Securities Act relating to residential mortgage-backed security (“RMBS”) offerings

Electronic Data Involved: ESI

West Plains, LLC v. Retzlaff Grain Co., No. 8:13CV47, 2014 WL 2515198 (D. Neb. June 3, 2014)

Dec 01 2014

Key Insight: Where plaintiff produced thousands of documents on disc and in hard copy, and divided some of the electronic documents into files on the disc but otherwise provided no indices to guide defendants to responsive materials, court found plaintiff?s responses insufficient and ordered plaintiff to produce index or other tool to guide defendants to the documents responsive to each individual request for production

Nature of Case: Company sued competitor, and former employees who had resigned to join competitor, for misappropriation of confidential business information, tortious interference with business relationships, and related claims

Electronic Data Involved: ESI produced on disc

Dover v. British Airways, PLC (UK), No. CV 2012-5567 (RJD)(MDG), 2014 WL 4065084 (E.D.N.Y. Aug. 15, 2014), affirmed, Dover v. British Airways, PLC (UK), No. CV 2012-5567 (RJD)(MDG), 2014 WL 5090021 (E.D.N.Y. Oct. 9, 2014)

Dec 01 2014

Key Insight: Where parties entered into a stipulated protective order approved by the court that contained a provision concerning inadvertent disclosures, and plaintiffs inadvertently produced the protected information on the spreadsheets twice and conceded they were “careless,” court did not find plaintiffs’ conduct to be so “completely reckless” as to warrant a finding of waiver given the totality of the circumstances and particularly the nature of the production, plaintiffs’ prompt request for return of the protected information, and the overriding issues of fairness

Nature of Case: Class action alleging that defendant British Airways violated its frequent flyer program contract by imposing unlawful fuel surcharges on rewards flights

Electronic Data Involved: Spreadsheets prepared by non-testifying, consulting experts

Abcon Assocs., Inc. v. Haas & Najarian, No. CV 12-928(LDW)(AKT), 2014 WL 4981440 (E.D.N.Y. Oct. 6, 2014)

Dec 01 2014

Key Insight: Where there was no evidence that plaintiff ever instituted litigation hold, and documents were either discarded during plaintiff?s office move or lost due to server failure and/or corruption, court found that a fair reading of the record overall indicated that plaintiff?s failure to preserve was at most negligent and not in bad faith, and that no sanctions were warranted given that the alleged relevance of the missing documents appeared purely speculative and conclusory

Nature of Case: Breach of legal services agreement

Electronic Data Involved: Documents concerning plaintiff’s liabilities and financial condition

Novick v. AXA Network, LLC, No. 07-CV-7767 (AKH)(KNF), 2014 WL 5364100 (S.D.N.Y. Oct. 22, 2014)

Dec 01 2014

Key Insight: Court found that defendants? repeated failure to properly search for, locate and produce audio recordings, their inability to account for the audio recordings? disappearance, and their conflicting representations to the court and plaintiff about the existence of the recordings, as well as their deliberate and unjustified failure to search for and locate email messages and their lack of explanation for the ?human error? they claimed was responsible for the delay, warranted a finding of bad faith conduct that prejudiced plaintiff; court declined to impose extreme sanction of striking defendants? pleadings and instead imposed an adverse inference jury instruction concerning the spoliated audio recordings, monetary sanctions representing plaintiff?s reasonable attorneys? fees and costs incurred in connection with motion, and the retaking of certain depositions at defendants? expense

Nature of Case: Breach of contract and various business torts

Electronic Data Involved: Audio recordings, email

First Mariner Bank v. Resolution Law Group, P.C., No. MJG-12-1133, 2014 WL 1652550 (D. Md. Apr. 22, 2014)

Dec 01 2014

Key Insight: Recounting history of defendants? discovery misconduct, prior motions and orders, and finding that defendants? spoliation of evidence stored on individual defendant’s laptop computer and smartphone was willful and in bad faith and caused significant prejudice to plaintiff by eliminating the only identified source of defendants? business records, magistrate judge recommended that extreme sanction of judgment by default as to liability on all counts of the amended complaint be entered against defendants; magistrate further recommended that, pursuant to FRCP 55(b)(2), an evidentiary hearing be held to give plaintiff the opportunity to prove damages

Nature of Case: False advertising, unfair competition and defamation

Electronic Data Involved: ESI stored on laptop and smartphone

James v. Nat?l Fin. LLC, No. 8931-VCL, 2014 WL 6845560 (Del. Ch. Dec. 5, 2014)

Dec 01 2014

Key Insight: Where defendant failed to provide all the information required by the court’s first discovery order, then failed to comply with second discovery order that required production of an updated spreadsheet with an affidavit from defendant?s IT consultant explaining how the consultant extracted data from defendant’s systems and imported the data into the updated spreadsheet, and where defendant made numerous misrepresentations to plaintiff and to the court regarding the data and defendant?s efforts to comply with the orders, court declined to enter default judgment as a discovery sanction and instead ordered that certain facts adverse to defendant were to be deemed established; court further awarded plaintiff her expenses, including attorneys? fees, to be paid by both defendant and its counsel

Nature of Case: Putative class action alleging that defendant’s loan practices were unconscionable and its loan terms unenforceable

Electronic Data Involved: Spreadsheet containing loan history information

Yontz v. Dole Fresh Vegetables, Inc., No. 3:13-cv-066 2014 WL 5109741 (S.D.Ohio Oct.10, 2014)

Dec 01 2014

Key Insight: In this FMLA interference case, Defendant?s motion for summary judgment was denied, in part because the court found merit in Plaintiff?s spoliation claim. Defendant claimed there was no willful destruction of relevant email that was missing from their computer system. However, in deposition Defendant stated that ?there has not been any automatic deletion? from its system, and ?the only way that emails could have been deleted?would have been manually by an end user.? The Court found that to the extent email was missing a reasonable juror could find it was deleted by an employee. Additionally, the required element of a culpable state of mind was shown by Defendant?s failure to implement a litigation hold, which was a violation of their company policy. ?Where Dole?s own policies require retention, and there is testimony documents were not retained but manually deleted by the user, there is a genuine issue for the jury.?

Nature of Case: Employment Law

Electronic Data Involved: ESI

Catagory:Case Summaries