Case Summaries – Page 126 – Electronic Discovery Law

Small v. Univ. Med. Ctr. of S. Nev., No. 2:13-cv-00298-APG-PAL, 2014 WL 4079507 (D. Nev. Aug. 18, 2014)

Dec 01 2014

Key Insight: In a lengthy decision, the Special Master recounted chronology of “extraordinary misconduct and substantial and willful spoliation of relevant ESI” by defendant and observed: “The level of intentional destruction of evidence by UMC shocks the conscious.” The Special Master concluded that only case dispositive sanctions would fully protect plaintiffs from defendant’s willful discovery failures, and set out various recommendations including specific factual findings as to class certification and a rebuttable presumption regarding certain merit issues

Nature of Case: Class action alleging claims under Fair Labor Standards Act and Nevada state wage and hour laws

Electronic Data Involved: ESI, laptops, personal mobile phones and BlackBerry devices, BlackBerry server, databases, SMS text messages, etc.

Palma v. Metro PCS Wireless, Inc., 18 F.Supp.3d 1346 (M.D. Fla. 2014)

Dec 01 2014

Key Insight: Observing that, generally, social media content is neither privileged nor protected by any right of privacy, nevertheless, a defendant does not have a generalized right to rummage at will through information that plaintiff has limited from public view, court denied defendant?s motion to compel, questioning the relevance of the material sought and finding that ?the burden of requiring all of the opt-in Plaintiffs to review all of their postings on potentially multiple social media sites over a period of four years and determine which posts relate to their job, hours worked, or this case, would be an ?extremely onerous and time-consuming task’?

Nature of Case: Fair Labor Standards Act claims

Electronic Data Involved: Posts to social media accounts and private messages sent from social media sites

Georgel v. Preece, No. 0:13-CV-57-DLB, 2014 WL 12647776 (E.D. Ky. Feb. 28, 2014)

Dec 01 2014

Key Insight: Court denied without prejudice Defendant?s motion to compel production of Plaintiff?s social media records absent a ?factual predicate? upon which to do so, i.e., a presentation of some factual basis that the social media pages would reveal relevant information, but declined to say that Defendant must provide information from Plaintiff?s public pages to satisfy the threshold burden for establishing relevance

Nature of Case: Personal injury

Electronic Data Involved: Social media (Facebook, LinkedIn)

Thompson, I.G., LLC v. Edgetech I.G., Inc., No. 11-12839 (E.D. Mich. Feb 25, 2014)

Dec 01 2014

Key Insight: Noting the limited application of 28 U.S.C. ?1920(4), the court declined to allow recovery of electronic discovery costs for ?forensic consulting and collection,? ?early case assessment,? and ??electronic discovery processing and hosting, data collection, imaging,? and the like? because they were ?not associated with the copying of digital materials?

Nature of Case: Contract dispute

Electronic Data Involved: taxable costs for electronic discovery

In re Transpacific Passenger Air Transp. Antitrust Litig., No. C-07-05634 CRB (DMR), 2014 WL 709555 (N.D. Cal. Feb. 24, 2014

Dec 01 2014

Key Insight: Court granted plaintiffs’ motion to quash defendant airline’s subpoena to third party Airline Tariff Publication Company (“ATPCO”) which sought production of documents and ESI previously obtained by plaintiffs from ATPCO, search terms and parameters used by plaintiffs, and communications between ATPCO and plaintiffs’ expert, where defendant had chose not to collaborate with plaintiffs and other defendants to identify relevant information, formulate search strings and download the results pursuant to a cost-sharing agreement, and parties’ stipulation regarding experts protected the requested materials from discovery

Nature of Case: Antitrust litigation

Electronic Data Involved: Historical airfare pricing data

EEOC v. SVT, LLC, No. 2:13-CV-245-RLM-PRC, 2014 WL 2177796 (N.D. Ind. May 22, 2014)

Dec 01 2014

Key Insight: Where defendant utilized third party?s hiring program to allow applicants to apply online, etc. and had limited access to the system?s data (i.e., limitations on the format and content of reports from the system), the court found that the data that could be regularly accessed by the defendant per its contract with the third party was accessible and subject to production and that data housed by the third party and not readily available to the defendant was ?not reasonably accessible . . . because of both undue burden and cost? and ordered that if the EEOC wanted the inaccessible data, it would have to pay for it

Nature of Case: Employment litigation

Electronic Data Involved: ESI (Kronos)

Quintero Cmty. Assoc. v. Hillcrest Bank, No. 04-11-CV-00893-DGK, 2014 WL 1764791 (W.D. Mo. May 2, 2014)

Dec 01 2014

Key Insight: Where defendants produced ESI that had previously been provided to the FDIC in the course of its investigation but could not provide the passwords to access the information and where the requesting party was told by “several companies” that the documents would be ?nearly impossible? to unencrypt, the court declined to impose spoliation sanctions reasoning that ?a presumption of spoliation only arises when there is evidence of ?intentional destruction indicating a desire to suppress the truth?? and that the requesting party had not shown intentional destruction (?QCA has not provided the court with sufficient evidence that Defendants, or their attorneys, placed the passwords on the discs, let alone evidence that these actors did so to intentionally block QCA’s access.?)

Nature of Case: Claims arising from failed property investment

Electronic Data Involved: Password protected ESI

Rodriguez v. City of New York, No. 114739/10, 2014 WL 2438436, May 29, 2014 (unpublished)

Dec 01 2014

Key Insight: Court granted plaintiff?s cross-motion for sanctions in the form of an adverse inference instruction, finding that it was particularly concerning that defendant Department of Education permitted surveillance video depicting at least some of the activity involved in litigation to be taped over where a police investigation immediately ensued, a Notice of Claim was filed by plaintiff, and the faculty of the school thought to view the video soon after the events occurred, and in the case of one teacher, prior to her deposition

Nature of Case: Student assaulted during school field trip sued for inadequate supervision and negligent hiring

Electronic Data Involved: Surveillance video

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 (SRN/SER), 2014 WL 1309095 (D. Minn. Apr. 1, 2014)

Dec 01 2014

Key Insight: District court judge overruled plaintiff’s objection to magistrate judge’s report and recommendation on plaintiff’s motion for sanctions, which found spoliation by defendant in not preserving consul’s mobile phone given that defense counsel knew or should have known that the phone was relevant to the pending litigation, but declined to impose sanctions because there was insufficient evidence of prejudice to plaintiff and plaintiff had failed to pursue opportunities to obtain the information through other methods

Nature of Case: Employment discrimination

Electronic Data Involved: Laptop; text messages and other ESI on mobile phone

FDIC v. Baldini, No. 1:12-7050, 2014 WL 1302479 (S.D. W. Va. Mar. 28, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for protective order, rejecting plaintiff’s proposed protocol that would require defendants to supply search terms (which plaintiff would then apply to the ESI) and require defendants to pay ESI copying costs; court ordered plaintiff to fashion initial set of search terms and work with defendants to reach agreement on search terms to be used, and set out protocol to be followed by the parties for the production

Nature of Case: Breach of fiduciary duties, negligence

Electronic Data Involved: ESI

Catagory:Case Summaries