Case Summaries – Page 139 – Electronic Discovery Law

Finkle v. Howard Cnty., Md., No. SAG?13?3236, 2014 WL 6835628, (D. Md. Dec. 2, 2014)

Dec 01 2014

Key Insight: District Court granted Defendant?s Motion for Protective Order and denied Plaintiff?s Motion to Compel, finding that Plaintiff?s Interrogatory seeking the identification of all email accounts, social media services, internet discussion groups, cellular telephone or text messaging services used by certain County employees from January 2010 through the present, for the purpose of issuing a subpoena to the appropriate service providers, would impose an undue burden on Defendant and that Plaintiff was not lawfully entitled to the content of those accounts under the Stored Communications Act (?SCA?); regarding its reliance on the SCA, the court specifically reasoned that ?there is no reason to invite an unfettered ?fishing expedition? into the personal communications of non-party employees without a viable reason to believe that relevant information would be accessible to Plaintiff or would be contained therein.?

Nature of Case: Employment Discrimination (Title VII)

Electronic Data Involved: Account information for all email, social media (e.g., Facebook, MySpace), discussion groups, text messaging services, etc.

Abdulahi v. Wal-Mart Stores E., L.P., 76 F. Supp. 3d 1393 (N.D. Ga. Dec. 2014)

Dec 01 2014

Key Insight: Where plaintiff was fired for failure to lock a gate?which he disputed?during the pendency of separate EEOC investigations into plaintiff?s charges of discrimination and where the at-issue manager claimed to have viewed footage confirming the gate was unlocked but failed to preserve it, the court determined that Defendant was under a duty to preserve (?due to an ongoing EEOC investigation during the applicable time period, Wal-Mart?s own investigation into the alleged employee misconduct including a review of the video footage, and litigation being reasonably foreseeable?), that plaintiff was prejudiced by the loss because neither the at-issue manager?s testimony or emails were equivalents for the video, and that plaintiff showed ?more than mere negligence? in the destruction, the court ordered an adverse inference creating a presumption that ?Wal-Mart?s stated reason for terminating Plaintiff was pretextual and that retaliation was the but-for cause of Plaintiff?s termination? and awarded attorney?s fees

Nature of Case: Employment litigation

Electronic Data Involved: Video surveillance footage

Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327, 2014 WL 439785 (S.D. W. Va. Feb 4, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted plaintiffs’ request for reasonable costs incurred in bringing the motion as plaintiffs demonstrated that Ethicon’s negligent loss of relevant evidence unduly complicated plaintiffs’ discovery and case preparation and unnecessarily increased the costs of litigation, but denied request for more serious spoliation sanctions since loss of evidence was not willful or deliberate and plaintiffs could not show irreparable prejudice; magistrate recommended that district judge allow plaintiffs the opportunity to introduce evidence regarding Ethicon’s loss of relevant documents on a case-by-case basis, and when appropriate, tender an adverse inference instruction

Nature of Case: Product liability

Chavis Van & Storage of Myrtle Beach v. United Van Lines LLC, No. 4:11CV1299 RWS, 2014 WL 1729152 (E.D. Mo. May 1, 2014)

Dec 01 2014

Key Insight: Reducing defendants taxable costs, the court indicated that recovery for bates labeling, converting to pdf for attorney review and redaction, and de-duplication was not allowed and significantly reduced the remaining identified costs, including those for ?processing? and ?preparing? data absent a sufficient explanation of what was meant by those terms

Electronic Data Involved: Taxable costs

Painter v. Atwood, No. 2:12-cv-01215-JCM-RJJ, 2014 WL 1089694 (D. Nev. Mar. 18, 2014)

Dec 01 2014

Key Insight: Court granted defendants’ motion for sanctions in the form of an adverse inference instruction where, after she contemplated filing a lawsuit and retained counsel, plaintiff intentionally deleted Facebook comments that stated she enjoyed working for defendants; however, no sanctions were warranted for plaintiff’s deletion of text messages, as she was not on notice to preserve the texts at the time she deleted them (prior to leaving defendants’ employ)

Nature of Case: Former employee of dental practice sued for sexual harrassment, constructive discharge

Electronic Data Involved: Text messages and social media posts (Facebook comments and photographs)

Clemons v. Corrections Corp. of Amer., Inc., No. 1:11-CV-339, 1:11-cv-340, 2014 WL 3507299 (E.D. Tenn. July 14, 2014)

Dec 01 2014

Key Insight: Where defendant attempted to preserve relevant video by assigning a part time maintenance/IT employee to copy the relevant portion but failed to discover that the wrong portion was copied before the tape was overwritten, the Magistrate Judge found that the failure to preserve the relevant footage was grossly negligent and recommended a mandatory adverse inference, that defendant be prohibited from offering evidence or testimony from witnesses who viewed the unavailable footage and that plaintiff be awarded reasonable attorney?s fees; the district court adopted the recommendations

Nature of Case: Claims of deliberate indifference to prisoner’s medical needs

Electronic Data Involved: Video surveillance footage

Connelly v. Veterans Admin. Hosp., No. 12-2660, 2014 WL 2003093 (E.D. La. May 15, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for an adverse inference instruction where plaintiff failed to demonstrate that, at point in time at which surveillance videotape was overridden pursuant to VA’s 30-day retention policy, VA was on notice that the surveillance tape was relevant to litigation; plaintiff also failed to show any bad faith with respect to the alleged destruction of video surveillance

Nature of Case: Federal Tort Claims Act claim for slip-and-fall injury

Electronic Data Involved: Surveillance video footage

Harrison v. Office of the Architect of the Capitol, No. 09-1364 (CKKK), 964 F.Supp.2d 81 (2013), reconsideration denied, 2014 WL 4696814 (D.D.C. Sep. 23, 2014)

Dec 01 2014

Key Insight: Denying defendant’s motion for terminating sanctions for plaintiff’s intentional destruction of digital tape recording device as dismissal would be disproportionate to prejudice to defendant caused by misconduct, court ruled that strong adverse inference was appropriate and, for purposes of resolving the parties’ cross motions for summary judgment, court would assume that the recording device would have revealed the plaintiff was intentionally recording conversations of co-workers without their consent

Nature of Case: Hostile work environment and retaliation claims

Electronic Data Involved: Digital recording device and tape

Tedeschi v. Kason Credit Corp, No. 3:10CV00612 DJS, 2014 WL 1491173 (D. Conn. Apr. 15, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for adverse inference based on defendant’s failure to preserve printouts from its computer system, finding that defendant did not have a duty to preserve printouts so long as the electronic files themselves were preserved

Nature of Case: Claims under Fair Debt Collection Practices Act

Electronic Data Involved: Printed fact sheets that showed collection activity maintained on defendant’s computer system

Crissen v. Gupta, No. 2:12-cv-00355-JMS-WGH, 2014 WL 1431653 (S.D. Ind. Apr. 14, 2014)

Dec 01 2014

Key Insight: Court criticized plaintiff for not complying with inadvertent production provision of protective order and ordered plaintiff to delete all copies of the recalled documents and any information gleaned therefrom from its network drive, and further ruled that plaintiff may not use the documents or any work product derived therefrom unless and until it is determined that those documents should have been produced; court further awarded bank its fees and costs in connection with the motion, to be paid by plaintiff’s counsel, because the language of the claw back provision was clear and plaintiff’s counsel not only ignored that language but then took the extra step of reviewing the very documents the bank sought to recall

Nature of Case: Racketeering, fraud, unjust enrichment

Electronic Data Involved: Tax returns, bank documents containing defendants’ personal financial information, and internal bank documents

Catagory:Case Summaries