Case Summaries – Page 140 – Electronic Discovery Law

Memory Lane Inc. v. Classmates Int?l. Inc., No. SACV 11-940-JLS (RNBx), 2014 WL 12617383 (C.D. Cal. Jul. 25, 2014)

Dec 01 2014

Key Insight: Defendant moved for the court to tax costs for e-Discovery tasks including TIFF conversion, native file processing, CD creation, blowbacks and ?Data reduction & filtering? that the clerk had disallowed. The court disallowed costs for data reduction/filtering, native file processing and ?technical time? and allowed costs for Tiff conversion, CD/DVD creation, imaging and blowbacks (costs were reasonable and necessary).

Nature of Case: Taxable costs

Electronic Data Involved: ESI

The Shaw Group Inc. v. Zurich Am. Ins. Co., No. 12-257-JJB-RLB, 2014 WL 4373210 (M.D. La. Sep. 3, 2014)

Dec 01 2014

Key Insight: Where parties? agreed protective order stated that parties would endeavor to agree on search terms to be utilized in the search for responsive ESI, and current discovery dispute centered solely on the reasonableness of the search terms chosen by each party and the willingness of the parties to negotiate reasonable search terms, court rejected defendant?s proposed list of 90 search terms in light of plaintiff?s showing that the broad search would result in undue burden and expense by generating an excess of irrelevant documents, and instead ordered plaintiff to search for responsive documents using plaintiff?s 28 proposed search terms and protocol which the court found reasonable and well-tailored to locate responsive documents; court faulted parties for their lack of diligence in completing discovery within the court?s deadlines, observing: ?In short, both sides chose to do nothing, waiting to see if the other side would blink first. In doing so, they have compromised the deadlines in the court?s scheduling order, the briefing on dispositive motions, and have essentially gambled with the parameters of ESI discovery.?

Nature of Case: Insurance dispute

Nat?l Jewish Health v. WebMD Health Servs. Grp., Inc., No. 12-cv-02834-WYD-MJW, 2014 WL 2118585 (D. Colo. May 21, 2014)

Dec 01 2014

Key Insight: Where Plaintiff maintained emails in Enterprise Vault with journaling capabilities (which captures and stores all emails in one place) and all ESI produced was searchable, sortable, paired with relevant metadata and included Concordance load files (and where emails were also produced with their attachments), the special master found the production met the requirements of 34(b)(2)(E)(ii) and was both properly produced in the form in which it was ordinarily maintained and in a reasonably usable form and further found that although 34(b)(2)(E)(i) did not apply to ESI, the production also satisfied the traditional requirement to produce documents (which ESI is not) in the manner in which it is kept in the usual course of business; special master made clear that a custodian need not be an individual and that ?[a] company, through an IT department, can serve as the custodian of electronic files kept on company servers.?

Electronic Data Involved: ESI, email

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

Cochran v. Caldera Med., Inc., No. 12-5109, 2014 WL 1608664 (E.D. Pa. Apr. 22, 2014)

Dec 01 2014

Key Insight: In case where defendant represented that it was currently defending approximately 1,709 claims nationwide involving its various products, and that it had limited financial resources, court denied defendant’s request that plaintiffs share in the cost of producing documents and ESI as defendant did not demonstrate that ESI sought by plaintiffs was inaccessible; court further noted that, given the importance of the discovery requests to plaintiffs’ ability to prove their claims, and the seriousness of the injuries alleged by plaintiffs, the burden or expense of the discovery requests was outweighed by the likely benefit to plaintiffs

Nature of Case: Product liability re implantable surgical meshes

Electronic Data Involved: ESI, text messages, voicemail messages

FDIC v. Bowden, No. CV413-245, 2014 WL 2548137 (S.D. Ga. June 6, 2014)

Dec 01 2014

Key Insight: Where FDIC spent $614,000 to digitally scan about 2.01 terabytes of data or 153.6 million pages of documents after taking over failing bank, and before any written document requests were served, court evaluated parties? competing proposals for conducting e-discovery, discussed the governing standards for manner of document production, formatting issues, and cost-shifting for digital format conversion expenses, and ultimately approved protocol offered by FDIC; court further instructed that, in the event of any further ESI-protocol disagreement or objection to the court?s decision, the parties must first confer and attempt to craft a joint ESI protocol or consent order in light of the principles highlighted in the court?s ruling

Nature of Case: Bank receiver brought bank mismanagement case against 16 of bank’s former directors and officers

Electronic Data Involved: Records of failed bank

Campbell Alliance Group, Inc. v. Dandekar, No. 5:13-CV-00415-FL, 2014 WL 145037 (E.D.N.C. Jan. 13, 2014)

Dec 01 2014

Key Insight: Court granted plaintiff’s motion for additional, expedited discovery to conduct forensic examination of additional storage devices, and set out in full the parties’ Stipulation Regarding Protocol for Forensic Investigation and Analysis

Nature of Case: Former employer asserted breach of contract and breach of fiduciary duty claims against former employees for alleged violations of post-employment activity restrictions and confidentiality covenants contained in employment agreements

Electronic Data Involved: Various electronic storage devices

Wal-Mart Stores, Inc. v. Ind. Elec. Workers Pension Trust Fund IBEW, 95 A.3d 1264 (Del. 2014)

Dec 01 2014

Key Insight: Delaware Supreme Court affirmed rulings of Court of Chancery in all respects, finding no error in setting the range of dates for production, requiring Wal-Mart to produce officer-level documents, requiring Wal-Mart to collect and search data from disaster recovery backup tapes for two additional custodians where Wal-Mart had voluntarily collected disaster tape recovery data for nine other custodians, and invoking the exception articulated in Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), to find that IBEW was entitled to documents protected by attorney-client privilege and work product protection in Section 220 litigation

Nature of Case: Pursuant to title 8, section 220 of the Delaware Code, shareholder brought action against corporation for production of documents related to alleged bribery scandal

Electronic Data Involved: Disaster recovery tapes for certain records custodians and documents related to company’s compliance with Foreign Corrupt Practices Act

Catagory:Case Summaries