Case Summaries – Page 134 – Electronic Discovery Law

E.E.O.C. v. Forge Ind. Staffing, Inc., No. 1:14-mc-00090-SEB-MJD, 2014 WL 6673574 (S.D. Ind. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where former employee filed claim with EEOC alleging sexual harassment and retaliation, and EEOC issued a subpoena to employer staffing agency seeking information to determine how long the staffing agency had required applicants to waive statutorily protected statutes of limitations, court declined to enforce the subpoena, finding that the EEOC’s subpoena exceeded its authority in that the information sought went beyond the issues arising out of former employee?s individual charge; court further determined that the burden imposed on the staffing agency far exceeded the minimal relevance of the evidence sought, given that staffing agency processed 130,000 temporary employee applications during the time period covered by the subpoena, applications were not kept in a central repository or electronically, and compliance would require manual review of each employment application maintained in paper format at each of its ten office locations and would disrupt agency’s day-to-day operations

Nature of Case: Motion for enforcement of administrative subpoena issued to staffing agency relating to investigation of former employee’s claim of sexual harrassment and retaliation

Electronic Data Involved: Versions of employment application form used by staffing agency between January 1, 2012 and May 31, 2014, including all pages of and revisions to each form

Invivo Therapeutics Corp. v. PixarBio Corp., No. 14-CV_7481-F, 2014 WL 7444828 (Mass. Super. Ct. Dec. 23, 2014)

Dec 01 2014

Key Insight: Where Plaintiff suspected that Defendant was in possession of its confidential and proprietary information but where the ex-employee accused of sharing that information was ?incommunicado, and may well have left the jurisdiction,? court addressed Plaintiff?s request for forensic analysis of ALL of Defendant?s devices to determine the presence of the at-issue information and, ?in an effort to find a reasonable middle ground that serve[d] both parties interests,? ordered Plaintiff to identify the employee of Defendant most likely to have received the information and that all devices of that individual be searched; depending on outcome of search, court indicated that a search of ALL of Defendant?s devices was possible

Nature of Case: Violation of non-compete, potential possession of confidential / proprietary information

Electronic Data Involved: Computers, laptops (contents)

Bombardier Recreational Prods. Inc. v. Arctic Car, Inc., No. 12-cv-2706 (MJD/LIB), 2014 WL 10714011 (D. Minn. Dec. 5, 2014)

Dec 01 2014

Key Insight: Addressing a myriad of motions, court declined to compel Defendant?s production of irrelevant ESI hit upon by agreed-upon search terms reasoning that the rules permit and even encourage relevancy screening ?in an effort to avoid large, largely nonresponsive documents dumps mean to obscure and cloak relevant documents? and that Plaintiff failed to establish that Defendant had withheld relevant materials or agreed to the production of all search hits; court declined to compel Defendant?s production of a 30(b)(6)(witness to provide ?discovery on discovery? reasoning that Plaintiff failed to demonstrate that the information sought was ?relevant to – or may lead to the discovery of information relevant to – any claim or defense at issue in the present case? and that the request ?treads dangerously close to encroaching on attorney work product privilege?

Nature of Case: Patent infringement

Electronic Data Involved: ESI search hits, “discovery on discovery”

Galena St. Fund, LP v. Wells Fargo Bank, N.A., No. 12-cv-00587-BNB-KMT, 2014 WL 943115 (D. Colo. Mar. 10, 2014)

Dec 01 2014

Key Insight: Applying FRE 502, court rejected plaintiff?s argument that defendant waived attorney-client privilege by producing 150 privileged documents among production totaling some 208,000 documents consisting of over 2.2 million pages, as defendant established an elaborate protocol for review and production of documents and took reasonable steps to prevent disclosure of privileged documents, demonstrated that the production was inadvertent, and took reasonable steps to rectify the error with reasonable promptness

Siltronic Corp. v. Employers Ins. Co. of Wausau, No. 3:11-cv-1493-ST, 2014 WL 991822 (D. Or. Mar. 13, 2014)

Dec 01 2014

Key Insight: After non-party produced responsive documents and sought reimbursement of $17,298 from defendant, court found that that hourly rate of $65 to $160 to search and copy documents was ?inherently unreasonable? and could not be justified, and invoices were vague and included entries for internal communications and meetings and time for senior scientists “to stand around the copier and copy documents”; court ruled that the defendant’s prior payment of $5,670 — about one-third of the total charge — was a reasonable amount, and that non-party must either absorb or charge the plaintiff for the remainder of its cost to comply with subpoena

Electronic Data Involved: Non-party documents relating to or arising out of specific invoices

Harrington Enters., Inc. v. Safety-Kleen Sys., Inc., No. 13-00167-CV-W-BP, 2014 WL 12611318 (W.D. Mo. July 11, 2014)

Dec 01 2014

Key Insight: Court denied motion to compel searches of current and proposed custodians using additional search terms where Plaintiff failed to establish the relevance of the terms or the likelihood they would lead to admissible evidence and where Defendant had already provided discovery regarding the alleged issue, thus rendering the discovery cumulative and duplicative; court also denied motion to add custodians where Plaintiff again failed to establish relevance and where Defendant had shown that the ESI for the requested custodians was not reasonably accessible because it would require restoration of disaster backup tapes and ?substantial time, effort, and cost? to search

Electronic Data Involved: ESI (additional search terms, custodians)

Celestica Inc. Sec. Litig., No. 07 Civ. 312(GBD)(MHD), 2014 WL 1301881 (S.D.N.Y. Mar. 31, 2014)

Dec 01 2014

Key Insight: Mandatory adverse inference instruction was not warranted by former Chairman’s admitted deletion of e-mails after his retirement despite written document preservation instruction from corporate counsel at the outset of litigation, as defendants did not have requisite culpable state of mind and there was insufficient evidence of relevance or prejudice; instead, permissive adverse inference instruction was appropriate

Nature of Case: Securities class action

Electronic Data Involved: E-mails of defendant Celestica’s former Chairman of the Board

Hosch v. BAE Sys. Info. Solutions, Inc., No. 1:13-cv-00825 (AJT/TCB), 2014 WL 1681694 (E.D. Va. Apr. 24, 2014)

Dec 01 2014

Key Insight: Court ordered dismissal of Plaintiff?s claims with prejudice and payment of Defendant?s attorney?s fees and costs incurred for numerous discovery motions and forensic inspection of Plaintiff?s electronic devices for Plaintiff?s bad faith spoliation including defiance of the court?s discovery orders by refusing to submit certain devices and accounts for forensic inspection and by refusing to produce certain information and the destruction of ESI by wiping both his iPhone and Blackberry device, among other things

Nature of Case: Employment litigation (harassment, retaliation)

Electronic Data Involved: ESI, forensic inspection of devices (iPhone, Blackberry)and accounts

Mazzei v. Money Store, No. 01cv5694 (JGK)(RLE), 2014 WL 3610894 (S.D.N.Y. July 21, 2014)

Dec 01 2014

Key Insight: Defendant failed to preserve data in its control (an issue it hotly contested) when it sold certain assets of its wholly owned subsidiary, including the database/?system? that contained the at issue data; court found failure to preserve was willful and in bad faith and that plaintiff had been prejudiced by the loss; where a non-party who works with defendant indicated that it had information from the at issue system but that the information was not ?readable? and that it would be expensive to extract and convert it, the court ordered defendant to bear the cost of determining whether the system was searchable and to pay plaintiff his attorneys fees for the motion for sanctions

Nature of Case: Class action re: violation of Truth in Lending Act

Electronic Data Involved: Database

Audio Visual Innovations, Inc. v. Burgdolf, No. 13-10372, 2014 WL 505565 (E. D. Mich. Feb. 3, 2014)

Dec 01 2014

Key Insight: Forensic examination of defendants’ electronic devices was appropriate given nature of case and allegations against individual defendants; court identified particular devices to be examined and provided specific guidelines for the examination and review of ESI, but denied plaintiff’s request for attorneys’ fees since defendants’ objections were reasonable; court further ruled that costs associated with obtaining the information from the devices would be borne by plaintiff

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI on defendant’s electronic devices

Catagory:Case Summaries