Case Summaries – Page 138 – Electronic Discovery Law

Rodriguez v. City of New York, No. 114739/10, 2014 WL 2438436, May 29, 2014 (unpublished)

Dec 01 2014

Key Insight: Court granted plaintiff?s cross-motion for sanctions in the form of an adverse inference instruction, finding that it was particularly concerning that defendant Department of Education permitted surveillance video depicting at least some of the activity involved in litigation to be taped over where a police investigation immediately ensued, a Notice of Claim was filed by plaintiff, and the faculty of the school thought to view the video soon after the events occurred, and in the case of one teacher, prior to her deposition

Nature of Case: Student assaulted during school field trip sued for inadequate supervision and negligent hiring

Electronic Data Involved: Surveillance video

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 (SRN/SER), 2014 WL 1309095 (D. Minn. Apr. 1, 2014)

Dec 01 2014

Key Insight: District court judge overruled plaintiff’s objection to magistrate judge’s report and recommendation on plaintiff’s motion for sanctions, which found spoliation by defendant in not preserving consul’s mobile phone given that defense counsel knew or should have known that the phone was relevant to the pending litigation, but declined to impose sanctions because there was insufficient evidence of prejudice to plaintiff and plaintiff had failed to pursue opportunities to obtain the information through other methods

Nature of Case: Employment discrimination

Electronic Data Involved: Laptop; text messages and other ESI on mobile phone

Sanofi-Aventis Deutschland GMBH v. Glenmark Pharm. Inc., USA, 748 F.3d 1354 (Fed. Cir. 2014)

Dec 01 2014

Key Insight: Concluding that trial court did not err in giving permissive adverse inference instruction where defendant failed to suspend its email retention policy (whereby all emails and related electronic documents were retained for only one month) at the point when patent infringement litigation became reasonably foreseeable, i.e., the earliest date asserted by defendant for work product protection in its privilege log, appellate court commented: “The destruction of documents in the course of preparation for litigation has no entitlement to judicial protection, and need not be concealed from the jury.”

Nature of Case: Patent infringement

Electronic Data Involved: Email

Schulman v. Saloon Beverage, Inc., No. 2:13-CV-193, 2014 WL 1516326 (D. Vt. Apr. 18, 2014)

Dec 01 2014

Key Insight: Where defendants cooperated with Vermont Department of Liquor Control investigation and with their insurer and supplied records to the apparent satisfaction of both, and produced facially complete 62-page check detail, but failed to preserve the original ESI after filing for bankruptcy and closing business, court denied plaintiffs’ motion for an adverse inference instruction since failure to preserve was not deliberate or in bad faith and plaintiffs’ claimed prejudice was based on conjecture; however, because plaintiffs were prejudiced to the extent they could not explore possibility of fabrication or tampering with printout of check details, court would allow evidence of destruction of ESI in its original format to be admitted at trial

Nature of Case: Dram Shop Act and common law claims alleging that defendants’ sale of beer to individual caused head-on collision between individual’s vehicle and plaintiffs’ vehicle

Electronic Data Involved: ESI on restaurant’s computers in its original format

Farstone Tech., Inc. v. Apple, Inc., No. 8-13-cv-01537-ODW(JEMx), 2014 WL 2865786 (C.D. Cal. June 24, 2014)

Dec 01 2014

Key Insight: Court adopted plaintiff’s source-code printing provision in its entirety, rejecting as too restrictive defendant’s proposed limitations that parties may print only that source code ?necessary? to prepare court filings and pleadings, noting that the “reasonably necessary” standard had solid foundation in district?s model protective order, and rejecting as arbitrary defendant?s proposed numerical restrictions: 30-page threshold beyond which the source code printing would be presumed to be excessive, and a total cap on source code printing at the greater of 250 pages or 10 percent of the source code; court also adopted in full plaintiff?s proposed language regarding the use of source code for depositions

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Shipley v. Forest Labs., No. 1:06-cv-00048-TC-DBP, 2014 WL 4270939 (D. Utah Aug. 29, 2014)

Dec 01 2014

Key Insight: Stating it could not speculate about defendant’s claimed burden given lack of any details, court granted in part plaintiff’s motion to compel and ordered defendant to run a preliminary search of custodial files belonging to particular sales representatives using search terms and time limits set forth in Case Profile Form, and to submit a certification to the court describing the volume of responsive documents and the approximate cost defendant would incur in running a full search through its vendor and through privilege review; once the court received the certification, it would determine whether the burden of producing such custodial documents outweighed the benefit of production

Nature of Case: Products liability wrongful death action

Electronic Data Involved: ESI

Alter v. Rocky Pt. Sch. Dist., No. 13-1100 (JS)(AKT), 2014 WL 4966119 (E.D.N.Y. Sep. 30, 2014)

Dec 01 2014

Key Insight: Notwithstanding court?s finding that defendants lost materials due to their negligence in failing to: (1) institute a litigation hold until more than two years after plaintiff filed her notice of claim, (2) discuss a litigation hold with named individual defendants and other key players, (3) preserve all ESI regarding plaintiff from named individual defendants and all key custodians in separate backup tapes or in some other medium, or (4) preserve work-related ESI utilized by key players on their personal computers or other devices, court declined to impose spoliation sanctions as it found no intent on the part of defendants to spoliate material evidence and plaintiff failed to meet burden of showing with some degree of factual detail that lost materials were relevant or helpful in prosecuting her claim; court further denied plaintiff?s request for appointment of independent forensic computer expert, but did impose $1,500 sanction against school district and its counsel given that court found merit to some of plaintiff?s arguments

Nature of Case: Workplace discrimination claims

Electronic Data Involved: ESI, emails

In re Fundamental Long Term Care, Inc., 515 B.R. 874 (Bankr. M.D. Fla. 2014)

Dec 01 2014

Key Insight: Concluding that inadvertent production did not waive privilege, court rejected bankruptcy trustee’s argument that party waived privilege because it had not taken any — or perhaps enough — action to have the privileged documents removed from the district court’s electronic docket, noting that measures taken to rectify an inadvertent disclosure is only one of five factors courts consider in determining whether privilege has been waived and other four factors weighed against a finding of waiver

Nature of Case: Adversary proceeding in bankruptcy case

Electronic Data Involved: Privileged ESI

PersonalWeb Techs., LLC v. Google Inc., No. C13-01317 EJD (HRL), 2014 WL 4088201 (N.D. Cal. Aug. 19, 2014)

Dec 01 2014

Key Insight: Among other rulings on the parties? respective discovery motions, the court: (1) denied plaintiff?s request for an order compelling defendants to produce document retention policies and litigation hold notices issued in the case, because litigation hold notice was protected as attorney-client communication and/or work product and burden of producing requested material, however minimal, outweighed its likely benefit; court noted that plaintiff waited over one year to follow up on particular request, relevance of material to case merits was dubious, and timing of motion following court?s finding that plaintiff had committed spoliation by failing to timely file its litigation hold suggested that plaintiff?s motivation was retaliatory; and (2) denying plaintiff?s request for source code and documents related to newest version of accused product, which version was still in development, since discovery into such material would be premature because an incomplete, non-?live? product cannot be evaluated for infringement in patent litigation

Nature of Case: Patent infringement

Electronic Data Involved: ESI, litigation hold notice, source code

Small v. Univ. Med. Ctr. of S. Nev., No. 2:13-cv-00298-APG-PAL, 2014 WL 4079507 (D. Nev. Aug. 18, 2014)

Dec 01 2014

Key Insight: In a lengthy decision, the Special Master recounted chronology of “extraordinary misconduct and substantial and willful spoliation of relevant ESI” by defendant and observed: “The level of intentional destruction of evidence by UMC shocks the conscious.” The Special Master concluded that only case dispositive sanctions would fully protect plaintiffs from defendant’s willful discovery failures, and set out various recommendations including specific factual findings as to class certification and a rebuttable presumption regarding certain merit issues

Nature of Case: Class action alleging claims under Fair Labor Standards Act and Nevada state wage and hour laws

Electronic Data Involved: ESI, laptops, personal mobile phones and BlackBerry devices, BlackBerry server, databases, SMS text messages, etc.

Catagory:Case Summaries