Case Summaries – Page 130 – Electronic Discovery Law

State v. Francis, 455 S.W.3d 56 (Mo. Ct. App. 2014)

Dec 01 2014

Key Insight: Court reversed conviction and remanded for new trial based on error in admission of text messages found on Blackberry in Defendant?s possession at the time of his arrest where the State argued that ownership of the Blackberry could be inferred and failed to establish that at-issue text messages were authored by the defendant, which in turn, negated the state?s arguments for admitting the outgoing text messages as well: ?There was no evidence that Appellant owned the BlackBerry or, more importantly, authored the messages. The fact that Appellant possessed the phone at the time of arrest is insufficient by itself to establish that Appellant authored text messages sent hours or days earlier. Because the State failed to establish that the text messages were authored by Appellant, the outgoing messages were not admissible as admissions by a party opponent and, thus, the incoming messages were not admissible under any identified exception to the hearsay rule.?

Nature of Case: Drug conviction

Electronic Data Involved: Text messages from Blackberry

Del Gallo v. City of New York, 997 N.Y.S.2d 98 (Table) (N.Y. Sup. Ct.2014)

Dec 01 2014

Key Insight: Addressing request for discovery of Plaintiff?s social media contents, specifically LinkedIn, court indicated that ?[t]o warrant such discovery, ?defendants must establish a factual predicate for their request by identifying relevant information in plaintiff?s [social media] account — that is, information that contradicts or conflicts with plaintiff?s alleged restrictions, disabilities, and losses, and other claims?? and, although it acknowledged that Defendants could obtain information pertinent to Plaintiff?s communications with recruiters related to job offers and related inquiries, indicated that Defendants had not shown that they were entitled to Plaintiff?s communications with former colleagues about her condition or to the other materials on LinkedIn

Nature of Case: Wrongful death and personal injuries resulting from falling tree limb

Electronic Data Involved: Social Media Contents (e.g., LinkedIn)

Robinson v. County of San Joaquin, No. 2:12-cv-2783 MCE GGH PS, 2014 WL 3845775 (E.D. Cal. July 31, 2014)

Dec 01 2014

Key Insight: A clearly exasperated court described the parties’ discovery efforts to date, highlighted the inconsistencies/incompleteness in response, “as well as the complete cacophony of the San Joaquin County e-mail systems and retrieval,” and issued one final, specific order to be followed by defendant lest serious sanctions issue; among other things, court ordered defendant to perform computer-by-computer search for all current employees in order that any emails relating to plaintiff’s discrimination claims or job performance from 2007 to present may be produced, acknowledging that substantial work would be required for compliance but that judge was “not responsible for the County’s email systems which apparently have been designed for individual control and with no concern for litigation responsibilities”

Ackerman v. PNC Bank, N.A., No. 12-CV-42 (SNR/JSM), 2014 WL 258565 (D. Minn. Jan. 23, 2014)

Dec 01 2014

Key Insight: District court rejected plaintiff’s appeal of magistrate judge’s order denying sanctions, as there was no evidence that defendants destroyed evidence or inadequately investigated for ESI; fact that evidence was not produced “in and of itself is not a basis for [the court] to conclude that there was unlawful destruction or spoliation”

Electronic Data Involved: ESI

In re Actos (Pioglitazone) Products Liability Litig., MDL No. 6:11-md-2299

Dec 01 2014

Key Insight: Parties reached agreement regarding the use of predictive coding for the production of electronically stored information (order dated july 27, 2012)

Nature of Case: Products Liability

Electronic Data Involved: ESI

Ingrid & Isabel, LLC v. Baby Be Mine, LLC, No. 13-cv-01806, 2014 WL 1338480 (N.D. Cal. Apr. 1, 2014)

Dec 01 2014

Key Insight: Court denied issue preclusion sanctions without prejudice, ordering defendants to pay monetary sanctions of $20,444, produce all hard drives and any other electronic storage media subject to court-approved protocol for inspection, and provide plaintiff’s experts with access to defendants’ various e-mail, Amazon, Twitter, Facebook and eBay accounts, in light of serious concern as to whether defendants met their discovery obligations and real danger that evidence may be destroyed

Nature of Case: Breach of settlement agreement resolving trademark infringement and unfair competition claims

Electronic Data Involved: Defendants’ hard drives and various e-mail, Amazon, Twitter, Facebook and eBay accounts

Illiana Surgery and Med. Care Ctr. LLC v. Hartford Fire Ins. Co., NO. 2:07 cv 3, 2014 WL 1094455 (N.D. Ind. Mar. 19, 2014)

Dec 01 2014

Key Insight: Following evaluation of the relevant eight part test, court declined to shift the costs of producing emails stored on Defendant?s backup system pursuant to Rule 26(b)(2)(B) (inaccessible data) but placed limitations on the discovery allowed and ordered Defendant to restore eight weeks of backup tapes at its own expense and to search them for the requested emails and invited Plaintiff to renew its motion if, after Defendant?s search was complete, it could show that ?further exploration? was necessary

Nature of Case: Insurance Litigation

Electronic Data Involved: Emails stored on backup tapes

Lopez v. Cate, No. 1:10-cv-01773-AWI-SKO, 2014 WL 3615480 (E.D. Cal. July 21, 2014)

Dec 01 2014

Key Insight: Court denied motion for preliminary injunction and preservation order, reasoning as to the request for a preservation order that defendants had issued a litigation hold letter and that plaintiff had not shown that such an order was needed due to ?any actual risk that specific evidence will be lost or destroyed during the pendency of this action?

Nature of Case: Civil rights action (pro se prisoner)

Electronic Data Involved: [F]iles and records, including e-files and intact meta data

Brandofino Commc’ns, Inc. v. Augme Techs. Inc., No. 652639/11, 2014 WL 302227 (N.Y. Sup. Ct. Jan. 24, 2014) (unpublished)

Dec 01 2014

Key Insight: Where parties had each produced documents in text-searchable format for review in Concordance, and defendants made later, supplemental electronic productions in several ?massive? PDF files without any metadata and abruptly refused to follow prior practice, court granted plaintiff?s motion directing defendants to produce all documents in text-searchable format with necessary Concordance load files given that plaintiff?s initial document requests specified such format, defendants? initial production was made in accordance with those instructions without any objection, and sheer volume of documents at issue required production in an accessible format that allowed for easy sorting and searching

Nature of Case: Breach of contract

Electronic Data Involved: ESI and Concordance load files

U.S. v. Capitol Supply, Inc., No. 13-mc-0373 (BAH), 2014 WL 1046006 (D.D.C. Mar. 19, 2014)

Dec 01 2014

Key Insight: Where government had requested production in specific electronic formats (Database, Access or Excel) but company produced materials in PDF format that lacked requested detail and was not searchable across multiple documents, court found production insufficient and noted that the fact that company’s databases lacked certain functionality did not relieve company from responding to subpoenas with responsive information in usable, searchable format and directed company to produce responsive information “in a format that is reasonably usable, which includes searchable, just as its databases are presumably designed to respond to search queries”

Nature of Case: Investigation by Office of the Inspector General re whether company violated the False Claims Act; government petitioned for summary enforcement of OIG supboenas to Capitol Supply, Inc.

Electronic Data Involved: Sales data, country-of-origin information

Catagory:Case Summaries