Case Summaries – Page 137 – Electronic Discovery Law

Knoderer v. State Farm Lloyds, No. 06-13-00027-CV, 2014 WL 4699136 (Tex. App. Sep. 19, 2014)

Dec 01 2014

Key Insight: Trial court erred in granting remarkable discovery sanctions of procedural “death penalty” together with over $1 million in sanctions against plaintiffs, as destroyed evidence did not go to heart of case, but was, instead, impeachment evidence; record did not reflect the required consideration by trial court of appropriate lesser sanctions or an explanation of why case was exceptional and lesser sanctions would be inadequate; and court wrongly awarded attorneys’ fees, expert fees, and costs for the entire case rather than those related only to the sanctionable conduct

Nature of Case: Insurance dispute

Electronic Data Involved: Digital photographs

Green v. Monarch Recovery Mgmt., Inc., No. 1:13-cv-00418-SEB-MJD, 2014 WL 1631825 (S.D. Ind. Apr. 24, 2014)

Dec 01 2014

Key Insight: Where defendant produced PDF version of requested spreadsheet which was over 1,000 pages long when printed with only 50 pages that were not redacted, court ruled that spreadsheet must be produced in its native Excel format, explaining: 1) “One of the unique strengths of Excel software is the ability to implement calculations and formulae that are not evident in a PDF version, so merely a PDF imprint of the surface information is not sufficient,” 2) the ability to search the spreadsheet is essential to its usefulness, and 3) due to its structure, a printed or PDF version of a large Excel spreadsheet is “often useless” from an evidentiary standpoint

Nature of Case: Fair Debt Collection Practices Act claims

Electronic Data Involved: Excel spreadsheet

L-3 Commc?ns Corp. v. Jaxon Eng?g & Maintenance, Inc., No. 10?cv?02868?MSK?KMT, 2014 WL 3732943 (D. Colo. July 29, 2014)

Dec 01 2014

Key Insight: Where special master was appointed to review tens of thousands of documents listed on defendants? privilege log and issue a report and order after determining, as to each document, whether the document was subject to a claim of work product, attorney-client privilege, spousal privilege or ?so intensely personal and so utterly irrelevant that they should be withheld from production,? district court painstakingly reviewed special master’s report de novo with respect to specified documents subject to objection by the parties and made final rulings

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI stored on computer hard drives

Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 12-2350-SAC, 2014 WL 806122 (D. Kan. Feb. 28, 2014)

Dec 01 2014

Key Insight: Court denied in most respects plaintiff’s motion for protective order, finding that plaintiff’s undue burden and expense arguments were unsupported and conclusory; court further denied plaintiff’s alternative proposal to shift some of the uncalculated ESI costs onto defendants as plaintiff failed to show that the disputed ESI production was inaccessible because of undue burden or cost, and because other relevant factors did not weigh in plaintiff’s favor; court further denied plaintiff?s request for a discovery conference or appointment of an ESI master, and ordered the parties to meet and confer regarding the proper method to search custodian hard drives, and suggested the parties consider a clawback provision specifically for ESI harvested after running the parties? respective search terms

Nature of Case: Insurance coverage dispute

Electronic Data Involved: ESI in databases and stored on custodian hard drives

In re Yasmin & Yaz (Drospirenone) Mkg., Sales Practices & Prods. Liab. Litig., No. 3:09-md-02100-DRH-PMF, MDL No. 2100, 2014 WL 4961490 (S.D. Ill. Oct. 3, 2014)

Dec 01 2014

Key Insight: Court applied Rule 502 to conclude that disclosure of privileged slide presentations was inadvertent and did not waive attorney-client privilege; court ordered plaintiffs to return presentations and all copies to defendants and destroy all work product reflecting content from presentations, and directed clerk of court to strike from the court?s record certain exhibits containing references to the presentations

Nature of Case: 32 class actions relating to at least one of the drospirenone-containing oral contraceptives Yaz and Yasmin

Electronic Data Involved: Presentation prepared by defendants’ in-house counsel to convey legal advice to corporate employees and other presentations in which another employee conveyed the legal advice from the in-house counsel presentation to other corporate employees

Lovett v. Cole, No. 1:11-cv-277, 2014 WL 5426168 (S.D. Ohio Oct. 22, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff?s motion for sanctions based on correctional facility?s failure to preserve video surveillance footage of ?out-of-place? incident that preceded use of force incident, or digital versions of photographs taken of plaintiff?s injuries and cell after use of force incident, finding that plaintiff failed to establish a duty to preserve digital versions of photographs where hard copy photographs were preserved in accordance with the facility?s policy and procedure, and there was no evidence that defendants knew about the ?out-of-place? incident or recognized it as relevant to the use of force incident (the video footage of which was preserved); court further found that plaintiff failed to show that defendants deliberately lost or destroyed the evidence with a culpable state of mind

Nature of Case: Inmate sued correctional officers for use of excessive force

Electronic Data Involved: Video footage and digital information regarding plaintiff’s injuries and cell

Shire LLC v. Amneal Pharms., LLC, No. 2:11-cv-03781 (SRC)(CLW), 2014 WL 1509238 (D.N.J. Jan, 10, 2014)

Dec 01 2014

Key Insight: Weighing five factors to resolve the issue of waiver by inadvertent disclosure, court found that the use of analytical software without attorney review did not constitute reasonable steps to prevent inadvertent disclosure, and also faulted defendants? efforts to rectify the error, noting that defendants did not conduct a remedial investigation until after plaintiff alerted defendants that the production appeared to contain privileged documents; court concluded that, in light of the fact that the inadvertent disclosure was the result of a failure to review, justice would be served by a finding of waiver

Nature of Case: Patent infringement

Electronic Data Involved: Documents protected by attorney-client privilege

Peterson v. Matlock, No. 11-2594 (FLW)(DEA), 2014 WL 5475236 (D.N.J. Oct. 29, 2014)

Dec 01 2014

Key Insight: Where plaintiff’s medical records were previously provided in a PDF file organized in reverse chronological order and plaintiffs agreed to provide metadata contained in the audit trail, and plaintiff then sought production of the records either in their native format with the required software reader or broken down into “searchable headings,” court found that defendants had demonstrated they would suffer substantial hardship and/or expense in complying with plaintiff?s request to provide the records in their native format, and that such burden outweighed plaintiff?s interests in receiving the records in native format

Nature of Case: Claims arising from alleged assault by correctional officers

Electronic Data Involved: Plaintiff’s electronically stored medical records

Dorchester Fin. Holdings Corp v. Banco BRJ S.A., 11-CV-1529 (KMW) 2014 WL 7051380 (S.D.N.Y. Dec. 15, 2014)

Dec 01 2014

Key Insight: Trial court found Plaintiff committed spoliation when a computer containing key documents was destroyed. Court imposed sanctions of precluding evidence derived from the computer from being presented at trial and ordered Plaintiff to pay Defendant?s attorney fees and costs. Upon review, Court upheld the spoliation ruling but imposed a mandatory adverse inference instead of the preclusion order. Court agreed that Plaintiff had a duty to preserve, was culpable in the destruction of the evidence, and the data that was destroyed was relevant to the Defendant?s claims. The court further elaborated that Plaintiff?s duty to preserve did not end when the computer allegedly crashed, and that Plaintiff should have made reasonable efforts to recover the data it contained. Saying that the spoliation prejudiced the defendant in a ?severe way? that can only be corrected by a ?substantial sanction,? the Court found that a mandatory adverse inference was the best way to repair the damage to Defendant without being a ?harsh measure given the extent of Plaintiff?s reliance of the documents??

Nature of Case: Breach of Contract, Fraud

Electronic Data Involved: Contents of “crashed” laptop computer

Icon-IP Pty Ltd., v. Specialized Bicycle Components, Inc., No. 12-cv-03844-JST (MEJ), 2014 WL 6788182 (N.D. Cal. Dec. 2, 2014)

Dec 01 2014

Key Insight: Plaintiff sought to compel Defendant to produce additional documents relevant to their design infringement claims by searching Defendant?s emails and electronic design documents. Defendant argued that this comprehensive search of electronic design documents would be ?overly burdensome, oppressive, and not reasonably calculated to lead to discovery of admissible evidence,? and conducted a reasonable search responsive to Plaintiffs request, but did not explain why and how the comprehensive search would be burdensome. Defendant complied with a stipulation agreeing to specific email search terms and custodians, subject to objections which Plaintiff did not respond to. The court ordered that Plaintiff was entitled to additional discovery of electronic design documents because Defendant did not meet the burden of showing the request was unduly burdensome. However, since Defendant did comply with the stipulation, further email searches were not needed.

Nature of Case: Patent Litigation

Electronic Data Involved: ESI

Catagory:Case Summaries