Case Summaries – Page 140 – Electronic Discovery Law

Peerless Ind., Inc. v. Crimson AV LLC, No. 11 C 1768, 2014 WL 3497697 (N.D. Ill. July 14, 2014)

Dec 01 2014

Key Insight: District court judge adopted magistrate judge’s 2/27/2014 Report and Recommendations, except to the extent it found plaintiff had complied with prior discovery orders, and as sanction for failure to comply with orders, ordered plaintiff to pay defendants’ reasonable expenses and attorneys’ fees associated with briefing and hearings; judge further adopted in full magistrate judge’s 3/13/2014 Report and Recommendation which found that defendant failed to preserve or produce all documents it should have and recommended burden-shifting sanction rather than adverse inference instruction; judge awarded plaintiff its reasonable expenses and attorneys’ fees associated with its motion for sanctions

Nature of Case: Patent infringement and various violations of Illinois law

Electronic Data Involved: ESI

Sentis Group, Inc. v. Shell Oil Co., 763 F.3d 919 (8th Cir. 2014)

Dec 01 2014

Key Insight: Eight Circuit found no abuse of discretion where, for a second time, after remand, trial court concluded that dismissal of complaint was appropriate sanction for plaintiff?s ?consistently evasive and deceptive conduct,? as the record was now adequately set forth and supported the trial court?s judgment regarding the questions of bad faith, plaintiffs? control over accountant witness who disappeared, and the intentional (versus negligent) nature of the ongoing and systematic suppression of evidence by plaintiffs

Nature of Case: Contract and fraud claims

Electronic Data Involved: Financial records maintained on plaintiffs’ accountant’s computer; computers

Joffe v. Google, Inc., No. 10-md-02184-CRB (MEJ), 2014 WL 4681403 (N.D. Cal. Aug. 13, 2014)

Dec 01 2014

Key Insight: Where district court had authorized limited discovery on the issue of standing, and parties disagreed on scope and method of search of data, magistrate judge concluded that the most efficient method was through the appointment of a special master as it would (1) permit a technical expert to review all the data in a timely and effective manner, (2) limit collateral attacks and claims of bias that were likely to result if either party conducted the search, and (3) protect any interests that parties not before the court might have, given plaintiffs’ claims that the data contains private information; magistrate judge recommended appointment of special master and further recommended using Google’s ?Jurisdictional Discovery Proposal? for selection of the special master, development of protocol and depositing of information, and all related matters

Nature of Case: Putative class action in which plaintiffs alleged that Google intentionally intercepted, recorded and stored their Wi-Fi communications

Electronic Data Involved: Google’s “Street View” data

Eivaz v. Edwards, No. 12-C-910, 2014 WL 4698652 (E.D. Wis. Sep. 19, 2014)

Dec 01 2014

Key Insight: After considering the severity of plaintiff’s various discovery violations as well as the prejudice to defendants, and finding plaintiff’s violations of court order were willful and in bad faith, court: (1) granted defense motions for sanctions and dismissed plaintiff’s claims against defendants with prejudice, (2) ordered plaintiff to submit to a continued deposition for up to seven additional hours in the event defendant elected to pursue its counterclaim, and (3) ordered plaintiff and his attorney to pay additional attorneys’ fees and costs incurred by defendant in continuing plaintiff’s deposition and in bringing motion for sanctions

Nature of Case: Breach of contract, promissory estoppel, unjust enrichment

Electronic Data Involved: Emails, text messages, financial documents

Kearney v. JPC Equestrian, Inc., No. 3:11-CV-01419, 2014 WL 5493187 (M.D. Penn. Oct. 30, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion to compel further production of email where defendants flatly represented that additional emails did not exist and custodian swore under oath that his email box had been thoroughly searched and there were no further responsive emails

Nature of Case: Wrongful termination

Electronic Data Involved: Email and other ESI

E.E.O.C. v. Forge Ind. Staffing, Inc., No. 1:14-mc-00090-SEB-MJD, 2014 WL 6673574 (S.D. Ind. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where former employee filed claim with EEOC alleging sexual harassment and retaliation, and EEOC issued a subpoena to employer staffing agency seeking information to determine how long the staffing agency had required applicants to waive statutorily protected statutes of limitations, court declined to enforce the subpoena, finding that the EEOC’s subpoena exceeded its authority in that the information sought went beyond the issues arising out of former employee?s individual charge; court further determined that the burden imposed on the staffing agency far exceeded the minimal relevance of the evidence sought, given that staffing agency processed 130,000 temporary employee applications during the time period covered by the subpoena, applications were not kept in a central repository or electronically, and compliance would require manual review of each employment application maintained in paper format at each of its ten office locations and would disrupt agency’s day-to-day operations

Nature of Case: Motion for enforcement of administrative subpoena issued to staffing agency relating to investigation of former employee’s claim of sexual harrassment and retaliation

Electronic Data Involved: Versions of employment application form used by staffing agency between January 1, 2012 and May 31, 2014, including all pages of and revisions to each form

Invivo Therapeutics Corp. v. PixarBio Corp., No. 14-CV_7481-F, 2014 WL 7444828 (Mass. Super. Ct. Dec. 23, 2014)

Dec 01 2014

Key Insight: Where Plaintiff suspected that Defendant was in possession of its confidential and proprietary information but where the ex-employee accused of sharing that information was ?incommunicado, and may well have left the jurisdiction,? court addressed Plaintiff?s request for forensic analysis of ALL of Defendant?s devices to determine the presence of the at-issue information and, ?in an effort to find a reasonable middle ground that serve[d] both parties interests,? ordered Plaintiff to identify the employee of Defendant most likely to have received the information and that all devices of that individual be searched; depending on outcome of search, court indicated that a search of ALL of Defendant?s devices was possible

Nature of Case: Violation of non-compete, potential possession of confidential / proprietary information

Electronic Data Involved: Computers, laptops (contents)

Bombardier Recreational Prods. Inc. v. Arctic Car, Inc., No. 12-cv-2706 (MJD/LIB), 2014 WL 10714011 (D. Minn. Dec. 5, 2014)

Dec 01 2014

Key Insight: Addressing a myriad of motions, court declined to compel Defendant?s production of irrelevant ESI hit upon by agreed-upon search terms reasoning that the rules permit and even encourage relevancy screening ?in an effort to avoid large, largely nonresponsive documents dumps mean to obscure and cloak relevant documents? and that Plaintiff failed to establish that Defendant had withheld relevant materials or agreed to the production of all search hits; court declined to compel Defendant?s production of a 30(b)(6)(witness to provide ?discovery on discovery? reasoning that Plaintiff failed to demonstrate that the information sought was ?relevant to – or may lead to the discovery of information relevant to – any claim or defense at issue in the present case? and that the request ?treads dangerously close to encroaching on attorney work product privilege?

Nature of Case: Patent infringement

Electronic Data Involved: ESI search hits, “discovery on discovery”

Galena St. Fund, LP v. Wells Fargo Bank, N.A., No. 12-cv-00587-BNB-KMT, 2014 WL 943115 (D. Colo. Mar. 10, 2014)

Dec 01 2014

Key Insight: Applying FRE 502, court rejected plaintiff?s argument that defendant waived attorney-client privilege by producing 150 privileged documents among production totaling some 208,000 documents consisting of over 2.2 million pages, as defendant established an elaborate protocol for review and production of documents and took reasonable steps to prevent disclosure of privileged documents, demonstrated that the production was inadvertent, and took reasonable steps to rectify the error with reasonable promptness

Ackerman v. PNC Bank, N.A., No. 12-CV-42 (SNR/JSM), 2014 WL 258565 (D. Minn. Jan. 23, 2014)

Dec 01 2014

Key Insight: District court rejected plaintiff’s appeal of magistrate judge’s order denying sanctions, as there was no evidence that defendants destroyed evidence or inadequately investigated for ESI; fact that evidence was not produced “in and of itself is not a basis for [the court] to conclude that there was unlawful destruction or spoliation”

Electronic Data Involved: ESI

Catagory:Case Summaries