Case Summaries – Page 140 – Electronic Discovery Law

Curtin v. Blair Bros. Contracting, Inc., No. 2012-1082, 2014 WL 4695980 (N.Y. Sup. Ct. Aug. 28, 2014) (unreported)

Dec 01 2014

Key Insight: Where defendants asserted they received only a “handful” of emails and argued that plaintiffs destroyed or otherwise failed to preserve relevant emails, court denied defendants’ motion for spoliation sanctions, finding that defendants failed to prove that the subject emails ever actually existed; court further rejected defense argument that missing emails were relevant to their counterclaim, observing that, to the extent the counterclaim sought payment for ?extras? performed by defendants, defendants presumably had their own records to support the counterclaim and did not need to rely on emails exchanged between plaintiffs and their architect, therefore even if spoliation did take place, the defendants were not prejudiced thereby

Nature of Case: Claims for breach of contract, fraudulent misrepresentation, unjust enrichment and conversion arising from residential construction

Electronic Data Involved: Email

Executive Mgmt. Servs., Inc. v. Fifth Third Bank, No. 1:13-cv-00582-WTL-MJD, 2014 WL 5529895 (S.D. Ind. Nov. 3, 2014)

Dec 01 2014

Key Insight: Granting in part plaintiff’s motion to compel, court rejected defendant’s assertion of irrelevance and its conclusory assertions of burdensomeness, finding that defendant had failed to “show with specificity” that plaintiff’s requests were overly burdensome and noting that defendant’s contentions would have more force if defendant had provided an estimate of the cost or hours involved in searching, compiling, and producing the requested information; addressing the discovery of ESI ?more directly,? court ordered defendant to file a disclosure stating the names of all custodians whose ESI was searched, the scope of the ESI searched, date ranges searched for each custodian and specific search terms used, and also provide such information for any additional custodians whose ESI would be searched in light the withdrawal of defendant?s objections; plaintiff was then required, within seven days, to propose a list of additional custodians and scope of ESI, date ranges and specific search terms for such custodians, following which the parties should endeavor to reach agreement regarding the scope of additional e-discovery

Nature of Case: Claims for breach of implied duty of good faith and fair dealing and breach of fiduciary duty

Electronic Data Involved: ESI

BLX Commercial Capital, LLC v. Bilco Tools, Inc., No. 14-0306, 2014 WL 6684929 (E.D. La. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where defendants requested emails from six employees and all emails regarding liquidation and appraisal of Bilco, and request was further narrowed by the use of eight search terms, plaintiff?s counsel was unable to articulate a specific reason why emails were not relevant and represented to the court that he had not actually reviewed any of the emails at issue to determine their relevancy, court denied plaintiff?s motion for protective order and granted defendants? motion to compel production of emails

Nature of Case: Breach of loan agreement

Electronic Data Involved: Email of current and former BLX employees

Linex Techs., Inc. v. Hewlett-Packard Co., No. 13-cv-00159-CW (MEJ), 2014 WL 5494906 (N.D. Cal. Oct. 30, 2014)

Dec 01 2014

Key Insight: Magistrate judge evaluated defendants’ bills of taxable costs and plaintiff’s objections thereto, and allowed and disallowed various e-discovery related costs; magistrate judge observed that courts within the Northern District of California have awarded costs under 28 USC s. 1920(4) for such things as scanning paper documents, electronic scanning and conversion to PDF, TIFF conversion, OCR and OCR conversion, image endorsement/Bates stamping, slip sheet preparation, blow-back scanning paper documents, and media hardware used for production; she further awarded costs related to the loading and processing of data, designed to make the data usable, actual data production costs, and migration and restoration costs designed to move the data — already stored in another database — into another database for use in the litigation; magistrate judge further ruled that e-discovery hosting costs and associated fees and FedEx costs associated with e-discovery costs were not compensable

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Culp v. Alabama, CR-13-1039, 2014 WL 6608543 (Ala. Crim. App Nov.21, 2014)

Dec 01 2014

Key Insight: In his appeal of a domestic violence conviction, Culp claimed that emails between himself and the victim were improperly admitted into evidence and were never properly authenticated under Rule 901(b)(4), Ala. R. Evid.. Alabama?s Rule 901(b)(4), which is identical to the federal version, provides that evidence can be authenticated by ?[d]istinctive characteristics and the like,? including ?[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.? The court ruled that the emails were properly authenticated because each email contained Culp?s photograph, a screen name that he used, and many of the emails concluded with Culp?s initials. Additionally, the emails contained drug references that were uniquely used by Culp and the victim.

Nature of Case: Criminal

Electronic Data Involved: Email

SCR-Tech LLC v. Evonik Energy Servs. LLC, No. 08 CVS 16632 (N.C. Super Ct. Dec. 31, 2014)

Dec 01 2014

Key Insight: Where Plaintiff failed to ensure the preservation of information underlying a highly relevant report regarding the examination of certain Defendants? computers over which the court determined it had ?de facto control? (the underlying information, including copies of the images were in the possession of the third party investigator), the court indicated it was not necessary to make an express finding regarding when litigation was contemplated and reasoned that based on the circumstances, Defendants were ?entitled to the inference? that the information was negligently lost during a time when Plaintiff had the duty to preserve it. Thus, the court found Defendants had presented sufficient evidence of spoliation to trigger Plaintiff?s obligation to rebut it and that Plaintiff had not. As a sanction, the court ordered a permissive adverse inference. Regarding Plaintiff?s request to compel Defendant?s restoration of backup tapes, the court identified the state?s relevant three-part test and ordered that if Plaintiff wanted restoration, it would be required to pay half o f the estimated costs up front, with further allocation to occur following analysis of the results of the search.

Electronic Data Involved: ESI, backup tapes

In re Subpoena of Drasin, Advanced Career Techs., Inc. v. Does 1-10, No. ELH-13-1140, 2014 WL 585814 (D. Md. Feb. 12, 2014)

Dec 01 2014

Key Insight: Court granted motion to quash subpoena to administrator of blog on which anonymous users posted disparaging comments about plaintiff because the burdens of the subpoena on the blog administrator — surrendering personal hard drives to plaintiff for up to 30 days, and granting plaintiff access to his personal information on the hard drives — outweighed the very little benefit, if any, that would result from the subpoena, and because the requested information was available from another source, i.e., the blog host, Google

Nature of Case: Defamation, trade libel, commercial disparagement

Electronic Data Involved: Hard drives and servers

Koninklijke Philips N.V. v. Hunt Control Sys., No. 11-3684 DMC, 2014 WL 1494517 (D.N.J. Apr. 16, 2014)

Dec 01 2014

Key Insight: Where Defendant sought to take a 30(b)(6) deposition to inquire regarding whether Plaintiff was ?using the appropriate search tools for ESI discovery,? based on Defendant?s expert?s determination that Plaintiff had ?some of most (sic) sophisticated and comprehensive state-of-the-art document search and location tools? and the assertion that ?Philips refuses to use these tools? and where Plaintiff indicated that it had always used ?a custodian-based approach to collecting ESI[ ],? and that it outsourced its collection to Microsoft Online Services and did not have a contract that permitted the type of searching and collecting suggested by the defendant, the court found that Plaintiff had adequately established the reasonableness of its approach and also reasoned that while the deposition itself would not be a burden, it would open the door to potentially burdensome additional discovery that was unlikely to be productive and thus was not warranted

Nature of Case: Appeal of decision of Trademark Trial and Appeal Board

Electronic Data Involved: ESI

U.S. Legal Support, Inc. v. Hofioni, No. 2:13-cv-1770 LLK AC, 2014 WL 172336 (E.D. Cal. Jan. 15, 2014)

Dec 01 2014

Key Insight: Motion for spoliation sanctions denied without prejudice where plaintiff argued that individual defendants violated their duty to preserve by continuing to use their personal electronic devices after receiving notice of the action and not “quarantining” the devices pending forensic imaging, as plaintiff did not make a specific showing that spoliation had, in fact, occurred; testimony of plaintiff’s forensic experts was mere speculation as neither expert identified any actual loss of data nor provided any forensic analysis of the personal electronic devices at issue

Nature of Case: Misappropriation of trade secrets, breach of contract, unfair competition

Electronic Data Involved: ESI stored on individual defendants’ personal electronic devices

Kinetic Concepts, Inc. v. Wake Forest Univ. Health Sciences, No. SA-11-CV-163-XR, 2014 WL 1787813 (W.D. Tex. May 5, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for protective order barring defendants from obtaining CEO’s e-mails during discovery, finding that CEO had potentially relevant information that defendants might not be able to obtain from other custodians and that CEO’s high level role did not make discovery of his e-mails any more or less burdensome than producing e-mails of other executives

Nature of Case: Patent infringement

Electronic Data Involved: E-mail of CEO who joined plaintiff after lawsuit was filed

Catagory:Case Summaries