Case Summaries – Page 129 – Electronic Discovery Law

Duluc v. AC & L Good Corp., 990 N.Y.S.2d 24 (N.Y. App. Div. 2014)

Dec 01 2014

Key Insight: Court affirmed denial of motion for sanctions where defendant preserved 84 seconds of surveillance footage in response a request to preserve footage or photos that ?depict the subject slip and fall accident? and where the remainder of the footage had been automatically overwritten before plaintiff requested broader preservation; court reasoned that: ?While it may have been a better practice to preserve any footage of the area from any camera for a period before and after the accident, that was not the request made to defendants, and it would unfair to defendant to penalize it for not anticipating plaintiff’s additional requests.?

Nature of Case: Personal injury / slip and fall

Electronic Data Involved: Video surveillance footage

Klipsch Group, Inc. v. Big Box Store Ltd., No. 12 Civ. 6283 (VSB)(MHD), 2014 WL 904595 (S.D.N.Y. Mar. 4, 2014)

Dec 01 2014

Key Insight: Where defendants failed to issue litigation hold and their belated oral instructions were inadequate both in form and content, court authorized plaintiff to undertake a forensic investigation into state of defendants’ computer systems for purpose of determining likelihood of document destruction, likely nature and volume of any such destroyed documents, whether some or all of those documents may be recovered, and the status of sales information on the computers; court deferred ruling on plaintiff’s motion for adverse inference instruction or cost-shifting pending results of investigation

Nature of Case: Trademark infringement

Electronic Data Involved: E-mails and other ESI

Network Cargo Sys. U.S.A., Inc. v. Pappas, No. 13 C 9171, 2014 WL 1856773 (N.D. Ill. May 7, 2014)

Dec 01 2014

Key Insight: Where e-discovery consultant jointly retained by parties reported that three previously undisclosed flash drives had been connected to former employee’s personal computers during the relevant time period, court agreed with plaintiff that consultant should be allowed to image and review the three flash drives but ruled that costs of such review would be borne by plaintiff given the likely limited usefulness of the search

Nature of Case: Misappropriation of confidential information

Electronic Data Involved: Flash drives and other electronic devices used by former employee

Cochran v. Caldera Med., Inc., No. 12-5109, 2014 WL 1608664 (E.D. Pa. Apr. 22, 2014)

Dec 01 2014

Key Insight: In case where defendant represented that it was currently defending approximately 1,709 claims nationwide involving its various products, and that it had limited financial resources, court denied defendant’s request that plaintiffs share in the cost of producing documents and ESI as defendant did not demonstrate that ESI sought by plaintiffs was inaccessible; court further noted that, given the importance of the discovery requests to plaintiffs’ ability to prove their claims, and the seriousness of the injuries alleged by plaintiffs, the burden or expense of the discovery requests was outweighed by the likely benefit to plaintiffs

Nature of Case: Product liability re implantable surgical meshes

Electronic Data Involved: ESI, text messages, voicemail messages

FDIC v. Bowden, No. CV413-245, 2014 WL 2548137 (S.D. Ga. June 6, 2014)

Dec 01 2014

Key Insight: Where FDIC spent $614,000 to digitally scan about 2.01 terabytes of data or 153.6 million pages of documents after taking over failing bank, and before any written document requests were served, court evaluated parties? competing proposals for conducting e-discovery, discussed the governing standards for manner of document production, formatting issues, and cost-shifting for digital format conversion expenses, and ultimately approved protocol offered by FDIC; court further instructed that, in the event of any further ESI-protocol disagreement or objection to the court?s decision, the parties must first confer and attempt to craft a joint ESI protocol or consent order in light of the principles highlighted in the court?s ruling

Nature of Case: Bank receiver brought bank mismanagement case against 16 of bank’s former directors and officers

Electronic Data Involved: Records of failed bank

Campbell Alliance Group, Inc. v. Dandekar, No. 5:13-CV-00415-FL, 2014 WL 145037 (E.D.N.C. Jan. 13, 2014)

Dec 01 2014

Key Insight: Court granted plaintiff’s motion for additional, expedited discovery to conduct forensic examination of additional storage devices, and set out in full the parties’ Stipulation Regarding Protocol for Forensic Investigation and Analysis

Nature of Case: Former employer asserted breach of contract and breach of fiduciary duty claims against former employees for alleged violations of post-employment activity restrictions and confidentiality covenants contained in employment agreements

Electronic Data Involved: Various electronic storage devices

Wal-Mart Stores, Inc. v. Ind. Elec. Workers Pension Trust Fund IBEW, 95 A.3d 1264 (Del. 2014)

Dec 01 2014

Key Insight: Delaware Supreme Court affirmed rulings of Court of Chancery in all respects, finding no error in setting the range of dates for production, requiring Wal-Mart to produce officer-level documents, requiring Wal-Mart to collect and search data from disaster recovery backup tapes for two additional custodians where Wal-Mart had voluntarily collected disaster tape recovery data for nine other custodians, and invoking the exception articulated in Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), to find that IBEW was entitled to documents protected by attorney-client privilege and work product protection in Section 220 litigation

Nature of Case: Pursuant to title 8, section 220 of the Delaware Code, shareholder brought action against corporation for production of documents related to alleged bribery scandal

Electronic Data Involved: Disaster recovery tapes for certain records custodians and documents related to company’s compliance with Foreign Corrupt Practices Act

BancorpSouth Bank v. Kleinpeter Trace, LLC, No. 2013 CA 1396, 2014 WL 4925698 (La. Ct. App. Oct. 1, 2014)

Dec 01 2014

Key Insight: Appellate court concluded that trial court did not err in ordering that adverse inference instruction be given to jury as to contents of particular file where plaintiff had notice that file, which was within plaintiff?s control, was relevant to pending litigation, it attempted to refer to contents of file in support of motion for summary judgment, and plaintiff?s explanation for loss of the file was pretextual and not reasonable; appellate court reversed trial court?s decision to impose ultimate sanction of dismissal because record did not support conclusion that plaintiff willfully or in bad faith failed to comply with trial court?s orders, since dismissal rested on conduct that did not relate to court-ordered discovery and in most instances occurred prior to the first discovery order; appellate court vacated trial court?s award of attorneys? fees in favor of defendant and remanded the matter to the trial court for a determination of reasonable expenses because the basis for the award was unclear and the award appeared to include other fees and costs unrelated to the particular discovery motion for which they were awarded

Nature of Case: Suit to enforce obligations arising out of promissory notes

Electronic Data Involved: ESI, email, spreadsheets

TVIIM, LLC v. McAfee, Inc., No. 13-cv-04545-VC (KAW), 2014 WL 5280966 (N.D. Cal. Oct. 15, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted in part and denied in part plaintiff?s request to compel defendant to produce emails employing particular keywords in Boolean search of five identified custodians, stating that defendant need not run two of the requested searches because they used truncated versions of defendant?s product names — something that was prohibited by the parties? ESI Order barring use of indiscriminate terms, such as the producing company?s name or its product name, unless combined with narrowing search criteria to reduce risk of overproduction; as to third requested search, magistrate judge ordered parties to confer to identify keywords that would remove ?out of office? and other automatic responses from the results, and ordered defendant to produce emails within seven days of parties? agreement

Nature of Case: Patent infringement

Electronic Data Involved: Email

In re Incretin Mimetics Prods. Liab. Litig., MDL Case No. 13md2452 AJB (MDD), 2014 WL 4987877 (S.D. Cal. Oct. 6, 2014)

Dec 01 2014

Key Insight: Where defendants estimated that cost of production would be between $280,000 and $400,000, or even greater, court denied plaintiffs’ motion to compel production of adverse event source documents and databases, finding that the additional time and expense of identifying, redacting, and producing the source files outweighed the likely benefit resulting from evaluating source files for instances of mis-classification

Nature of Case: Products liability

Electronic Data Involved: Source documents underlying adverse event reports and adverse event databases

Catagory:Case Summaries