Case Summaries – Page 126 – Electronic Discovery Law

First Senior Fin. Group LLC v. ?Watchdog,? No. 12-cv-1247, 2014 WL 1327584 (E.D. Pa. Apr. 3, 2014)

Dec 01 2014

Key Insight: Court applied four-part test to determine that defendant acted intentionally and in bad faith to suppress or withhold relevant evidence, but because the prejudice to plaintiffs resulting from the spoliation appeared minimal and plaintiffs did not present any arguments as to how the spoliation prejudiced the ultimate merits of their case, court would only require defendant to pay the cost of the independent computer forensics expert and attorneys’ fees associated with plaintiffs’ motion for spoliation sanctions; court denied all other relief and sanctions sought by plaintiffs

Nature of Case: Defamation, tortious interference with business relationships, civil conspiracy, violations of the Lanham Act

Electronic Data Involved: ESI, computer hard drive

A & R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., No. 3:07CV929 (WWE), 2014 WL 4437684 (D. Conn. Sep. 9, 2014)

Dec 01 2014

Key Insight: Magistrate judge denied as moot defendants’ request for plaintiffs’ consent to release emails stored with third party vendors Earthlink and AT&T in light of vendors? representations that, when an Earthlink.net or ATT.net user deletes an email from Outlook, the email simultaneously is deleted from the vendor’s server and cannot be recovered; magistrate judge also denied plaintiffs’ request for defendants to produce a merged data set, where one data set had 157 columns and was extracted from third-party provider?s system, and second set had more information but used different field identifiers, since a party cannot be compelled to create a document for its production and the creation of requested data compilation would inherently require the creation of a ?document,? and producing party is not required to produce ESI in more than one form

Nature of Case: Connecticut Unfair Trade Practices Act claims

Electronic Data Involved: Email, data

Baker v. Bayer Healthcare Pharm., Inc., No. 13-cv-00490-THE (KAW), 2014 WL 5513854 (N.D. Cal. Oct. 31, 2014)

Dec 01 2014

Key Insight: Finding that sales call notes that plaintiff sought, as opposed to only those concerning plaintiff’s healthcare provider, were relevant, but agreeing that producing all sales call notes for tens of thousands of healthcare providers was unduly burdensome and disproportionate to the needs of this single-plaintiff case, court sought to strike a balance between plaintiff’s entitlement to information relevant to her claims and need to ease defendant’s burden of production, and ordered production of sales call notes that had already been produced in related multidistrict litigation involving over 1,500 plaintiffs; court noted that production in related MDL was limited to the plaintiffs? specific prescribing physicians but that the volume that production would yield would give plaintiff a substantial cross-section of sales call notes without burdening defendant with production of sales call notes for every physician in every market in which the device was promoted

Nature of Case: Single-plaintiff products liability lawsuit

Electronic Data Involved: Databases containing sales call notes from conversations between defendant’s sales representatives and healthcare providers

M Seven Sys. Ltd. v. Leap Wireless Int?l, Inc., No. 12cv01424 CAB (RBB), 2014 WL 3942200 (S.D. Cal. Aug. 11, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for an order to show cause why the defendants should not be held in contempt for failing to all historical versions of source code for each cell phone model at issue, finding that magistrate judge’s discovery order did not preclude more than one reasonable interpretation of its scope, that defendants reasonably interpreted and substantially complied with the order by producing every version of the source code that they possessed

Nature of Case: Plaintiff alleged misappropriation of trade secrets, copyright infringement, violation of the Digital Millennium Copyright Act, violation of California Penal Code ? 502, unfair competition, civil conspiracy to misappropriate trade secrets, and civil conspiracy to unfairly compete

Electronic Data Involved: Various versions of source code

Olney v. Job.com, No. 1:12-cv-01724-LJO-SKO, 2014 WL 5430350 (E.D. Cal. Oct. 24, 2014)

Dec 01 2014

Key Insight: Where plaintiff willfully and deliberately spoliated relevant data on his computer through use of deletion programs after the duty to preserve had been triggered, magistrate judge declined to impose sanction of dismissal given that the interests of expeditious resolution had not been thwarted by plaintiff’s conduct, litigation had not been unnecessarily protracted, management of the court’s docket had not been disrupted, and although the spoliation had prejudiced defendants in presenting a full defense, a strongly worded adverse inference instruction was an alternative, less severe sanction that would adequately address defendants’ harm; court set out text of adverse inference instruction to be given to the jury and awarded defendants their reasonable attorneys? fees

Nature of Case: Class action seeking statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act

Electronic Data Involved: ESI on plaintiff’s computer hard drive

Finkle v. Howard Cnty., Md., No. SAG?13?3236, 2014 WL 6835628, (D. Md. Dec. 2, 2014)

Dec 01 2014

Key Insight: District Court granted Defendant?s Motion for Protective Order and denied Plaintiff?s Motion to Compel, finding that Plaintiff?s Interrogatory seeking the identification of all email accounts, social media services, internet discussion groups, cellular telephone or text messaging services used by certain County employees from January 2010 through the present, for the purpose of issuing a subpoena to the appropriate service providers, would impose an undue burden on Defendant and that Plaintiff was not lawfully entitled to the content of those accounts under the Stored Communications Act (?SCA?); regarding its reliance on the SCA, the court specifically reasoned that ?there is no reason to invite an unfettered ?fishing expedition? into the personal communications of non-party employees without a viable reason to believe that relevant information would be accessible to Plaintiff or would be contained therein.?

Nature of Case: Employment Discrimination (Title VII)

Electronic Data Involved: Account information for all email, social media (e.g., Facebook, MySpace), discussion groups, text messaging services, etc.

Abdulahi v. Wal-Mart Stores E., L.P., 76 F. Supp. 3d 1393 (N.D. Ga. Dec. 2014)

Dec 01 2014

Key Insight: Where plaintiff was fired for failure to lock a gate?which he disputed?during the pendency of separate EEOC investigations into plaintiff?s charges of discrimination and where the at-issue manager claimed to have viewed footage confirming the gate was unlocked but failed to preserve it, the court determined that Defendant was under a duty to preserve (?due to an ongoing EEOC investigation during the applicable time period, Wal-Mart?s own investigation into the alleged employee misconduct including a review of the video footage, and litigation being reasonably foreseeable?), that plaintiff was prejudiced by the loss because neither the at-issue manager?s testimony or emails were equivalents for the video, and that plaintiff showed ?more than mere negligence? in the destruction, the court ordered an adverse inference creating a presumption that ?Wal-Mart?s stated reason for terminating Plaintiff was pretextual and that retaliation was the but-for cause of Plaintiff?s termination? and awarded attorney?s fees

Nature of Case: Employment litigation

Electronic Data Involved: Video surveillance footage

Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2014 WL 439785 (S.D. W. Va. Feb 4, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted plaintiffs’ request for reasonable costs incurred in bringing the motion as plaintiffs demonstrated that Ethicon’s negligent loss of relevant evidence unduly complicated plaintiffs’ discovery and case preparation and unnecessarily increased the costs of litigation, but denied request for more serious spoliation sanctions since loss of evidence was not willful or deliberate and plaintiffs could not show irreparable prejudice; magistrate recommended that district judge allow plaintiffs the opportunity to introduce evidence regarding Ethicon’s loss of relevant documents on a case-by-case basis, and when appropriate, tender an adverse inference instruction

Nature of Case: Product liability

Chavis Van & Storage of Myrtle Beach v. United Van Lines LLC, No. 4:11CV1299 RWS, 2014 WL 1729152 (E.D. Mo. May 1, 2014)

Dec 01 2014

Key Insight: Reducing defendants taxable costs, the court indicated that recovery for bates labeling, converting to pdf for attorney review and redaction, and de-duplication was not allowed and significantly reduced the remaining identified costs, including those for ?processing? and ?preparing? data absent a sufficient explanation of what was meant by those terms

Electronic Data Involved: Taxable costs

In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2014 WL 1222222 (S.D. Ill. Mar. 25, 2014)

Dec 01 2014

Key Insight: Court granted defendants’ request to preserve by storing existing hard drives for the duration of the litigation in lieu of creating and storing a mirror image of the hard drives, and ordered them to place the hard drives in a storage facility that is environmentally conducive to the continued viability of the integrity of the hard drives based on universally accepted computer industry standards

Nature of Case: Products liability

Electronic Data Involved: Laptops of document custodians subject to litigation hold, the operating systems of which were due to be upgraded from Windows XP to Windows 7

Catagory:Case Summaries