Case Summaries – Page 133 – Electronic Discovery Law

Cormack v. United States, No. 13-232C, 2014 WL 3555255 (Fed. Cl. July 18, 2014)

Dec 01 2014

Key Insight: Court found no waiver resulting from the production of a privileged email (work product) in light of the scope of discovery (more than one million pages produced), defendant?s use of ?advanced software to screen for privilege,? and the ?numerous steps? intended to protect privilege as outlined for the court and because counsel sought the email?s return ?within hours? of receiving a filing with the email attached; defendant was also found to be in control of documents in the possession of a ?wholly owned but indirect French subsidiary? in light of the companies? collaboration on the at-issue software as illustrated by the companies? representations to the potential client regarding their collaboration, agreements between the companies, and the close working relationship between the two

Nature of Case: Patent infringement

Electronic Data Involved: Email, documents in possession of non-party

XL Specialty Ins. Co. v. Bollinger Shipyards, Inc., No. 12-2071, 2014 WL 295053 (E.D. La. Jan 27, 2014)

Dec 01 2014

Key Insight: Court rejected plaintiff’s complaints regarding format of defendant’s production of documents, because plaintiff failed to make any Rule 34(b)(2)(B) ESI specification in its discovery requests and defendant’s production of scanned images on OCR readable disc was a reasonably usable form; court ordered defendant to explain its document naming and numbering system to the extent it had not already done so, but denied any additional logistical relief, stating: ?Whatever burden XL and its counsel face in reviewing these materials that they themselves have requested is rightfully borne by them.?

Nature of Case: Insurance coverage

Electronic Data Involved: Database of more than 808,000 documents consisting of more than four million pages

Jackson Family Wines, Inc. v. Diageo N. Am., Inc., No. 11-5639 EMC (JSC), 2014 WL 595912 (N.D. Cal. Feb. 14, 2014)

Dec 01 2014

Key Insight: Court granted plaintiffs’ motion for spoliation sanctions in the form of an adverse inference instruction and monetary sanctions, where defendants never issued a litigation hold on marketing employee’s documents, never spoke to her about preserving documents, inexplicably deleted image of the her laptop six months after receiving the image from IBM pursuant to defendant?s ?leaver?s process,? waited over six months before notifying the court or plaintiffs about the destruction, and worse, made numerous representations to the court that consistently and vehemently sought to reassure the court that production of the employee?s documents was complete and irreproachable

Nature of Case: Trademark infringement

Electronic Data Involved: Hard drive containing image of departing marketing employee’s e-mail and other ESI

Samuel v. United Corp., No. ST-12-CV-457, 2014 WL 2608839 (V.I. Super. Ct. May 21, 2014)

Dec 01 2014

Key Insight: Court declined to allow an adverse inference instruction as sanction for defendant’s alleged destruction of critical video footage that preceded her fall, and reiterated prior guidance from the Supreme Court of the Virgin Islands: “[U]pon reasonably foreseeable notice that evidence may be relevant to discovery, it is certainly not within the discretion of a store manager [or security officer] to determine what portion of the available recorded surveillance footage is relevant to anticipated litigation, even where surveillance video does not clearly show the cause of the accident”; court commented that routinely preserving only a minute and a half of footage prior to an accident teeters on the edge of being unreasonable, and recommended preservation of at least five minutes of surveillance footage of the area prior to the accident

Nature of Case: Slip-and-fall

Electronic Data Involved: Surveillance video footage

Siani v. State Univ. of New York at Farmingdale, No. 2:09-CV-0407 (JFB) (WDW), 2014 WL 1260718 (E.D.N.Y. Mar. 28, 2014)

Dec 01 2014

Key Insight: Court denied motion for spoliation sanctions based on defendant campus counsel?s deletion of emails, because defendants produced emails from other custodians who did not delete them, and plaintiff failed to show that other deleted emails were relevant to the action and favorable to him; counsel?s deletion of email was not done in bad faith, but was instead part of his normal practice, he placed a litigation hold on the actual decisionmakers but did not include himself because he had a limited, non-decisive role, and, as an attorney, considered his own communications to be privileged and work product and any email not covered by these doctrines would be preserved by the parties subject to the litigation hold, making his own preservation redundant; court further denied plaintiff?s motion to compel production of emails withheld on the basis of privilege after conducting an in camera review and finding defendants? objections to be well-taken

Nature of Case: Age Discrimination in Employment Act claims

Electronic Data Involved: Email

Peerless Ind., Inc. v. Crimson AV LLC, No. 11 C 1768, 2014 WL 3497697 (N.D. Ill. July 14, 2014)

Dec 01 2014

Key Insight: District court judge adopted magistrate judge’s 2/27/2014 Report and Recommendations, except to the extent it found plaintiff had complied with prior discovery orders, and as sanction for failure to comply with orders, ordered plaintiff to pay defendants’ reasonable expenses and attorneys’ fees associated with briefing and hearings; judge further adopted in full magistrate judge’s 3/13/2014 Report and Recommendation which found that defendant failed to preserve or produce all documents it should have and recommended burden-shifting sanction rather than adverse inference instruction; judge awarded plaintiff its reasonable expenses and attorneys’ fees associated with its motion for sanctions

Nature of Case: Patent infringement and various violations of Illinois law

Electronic Data Involved: ESI

Sentis Group, Inc. v. Shell Oil Co., 763 F.3d 919 (8th Cir. 2014)

Dec 01 2014

Key Insight: Eight Circuit found no abuse of discretion where, for a second time, after remand, trial court concluded that dismissal of complaint was appropriate sanction for plaintiff?s ?consistently evasive and deceptive conduct,? as the record was now adequately set forth and supported the trial court?s judgment regarding the questions of bad faith, plaintiffs? control over accountant witness who disappeared, and the intentional (versus negligent) nature of the ongoing and systematic suppression of evidence by plaintiffs

Nature of Case: Contract and fraud claims

Electronic Data Involved: Financial records maintained on plaintiffs’ accountant’s computer; computers

Joffe v. Google, Inc., No. 10-md-02184-CRB (MEJ), 2014 WL 4681403 (N.D. Cal. Aug. 13, 2014)

Dec 01 2014

Key Insight: Where district court had authorized limited discovery on the issue of standing, and parties disagreed on scope and method of search of data, magistrate judge concluded that the most efficient method was through the appointment of a special master as it would (1) permit a technical expert to review all the data in a timely and effective manner, (2) limit collateral attacks and claims of bias that were likely to result if either party conducted the search, and (3) protect any interests that parties not before the court might have, given plaintiffs’ claims that the data contains private information; magistrate judge recommended appointment of special master and further recommended using Google’s ?Jurisdictional Discovery Proposal? for selection of the special master, development of protocol and depositing of information, and all related matters

Nature of Case: Putative class action in which plaintiffs alleged that Google intentionally intercepted, recorded and stored their Wi-Fi communications

Electronic Data Involved: Google’s “Street View” data

Eivaz v. Edwards, No. 12-C-910, 2014 WL 4698652 (E.D. Wis. Sep. 19, 2014)

Dec 01 2014

Key Insight: After considering the severity of plaintiff’s various discovery violations as well as the prejudice to defendants, and finding plaintiff’s violations of court order were willful and in bad faith, court: (1) granted defense motions for sanctions and dismissed plaintiff’s claims against defendants with prejudice, (2) ordered plaintiff to submit to a continued deposition for up to seven additional hours in the event defendant elected to pursue its counterclaim, and (3) ordered plaintiff and his attorney to pay additional attorneys’ fees and costs incurred by defendant in continuing plaintiff’s deposition and in bringing motion for sanctions

Nature of Case: Breach of contract, promissory estoppel, unjust enrichment

Electronic Data Involved: Emails, text messages, financial documents

Kearney v. JPC Equestrian, Inc., No. 3:11-CV-01419, 2014 WL 5493187 (M.D. Penn. Oct. 30, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion to compel further production of email where defendants flatly represented that additional emails did not exist and custodian swore under oath that his email box had been thoroughly searched and there were no further responsive emails

Nature of Case: Wrongful termination

Electronic Data Involved: Email and other ESI

Catagory:Case Summaries