Case Summaries – Page 142 – Electronic Discovery Law

Fog Cap Acceptance, Inc. v. Verizon Bus. Network Servs., Inc., No. 3:11-CV-724-PK, 2014 WL 6064217 (D. Or. Nov. 12, 2014)

Dec 01 2014

Key Insight: Court concluded that, because plaintiff’s spoliation of evidence did not deprive defendant of any complete defense to any of plaintiff’s claims of liability, dismissal was inappropriate sanction; instead, appropriate sanction would be to instruct the jury that it could infer from plaintiff?s failure to preserve the hard drives and disks that they contained evidence favorable to defendant, and to exclude plaintiff?s proffered expert testimony regarding the likelihood that the unpreserved evidence contained usable software or source code; however, because court went on to grant defendant’s motion for summary judgment, it denied defendant’s motion for sanctions as moot

Nature of Case: Breach of contract, negligence, and violations of bailment

Electronic Data Involved: Source code, hard drives

Ablan v. Bank of Am. Corp., No. 11 CV 4493, 2014 WL 6704293 (N.D. Ill. Nov. 24, 2014)

Dec 01 2014

Key Insight: Adopting magistrate judge’s report and recommendation, district court granted defendants? motion to strike plaintiffs? additional damages claim as sanction for plaintiffs? tardy production of documents relating to additional damages claim, which production occurred more then three months after discovery period closed, as plaintiffs offered no justification for failing to timely produce the documents and defendants would be prejudiced if plaintiffs were allowed to rely on the new evidence to defeat summary judgment or at trial; court further awarded defendants their attorneys? fees incurred in filing the motion, but denied defendants? request for expert costs associated with reviewing the new information because defendants? experts would have reviewed any new information even if it had been timely, and there was no evidence that defendants? experts had to revise their expert reports due to the belated production, and therefore no excess expert costs resulted from the late production

Nature of Case: Breach of contract

Electronic Data Involved: Documents on eight CD-ROMS

Taylor v. Shippers Transp. Express Inc., No. CV 13-02092 BRO (PLAx), 2014 WL 12560879 (C.D. Cal. Jul. 7, 2014)

Dec 01 2014

Key Insight: Court imposed sanctions, including an adverse inference and possible evidence preclusion (TBD after recovery efforts were exhausted), where Defendant failed to preserve its employees? text messages, including highly relevant text messages, by failing to implement a litigation hold and where despite Defendant?s attempts to recover the deleted information, the court deemed it ?very unlikely? that such efforts would result in full production; court also reasoned that even if all missing documents were produced, Plaintiffs would still be prejudiced in light of less time to review the evidence and prepare for trial

Nature of Case: Class action employment litigation

Electronic Data Involved: Text messages, ESI

Life Plans Inc. v. Security Life of Denver Ins. Co., No. 11 C 8449, 2014 WL 2879881 (N.D. Ill. June 25, 2014)

Dec 01 2014

Key Insight: Court denied request for costs of ?preparing electronic data to be converted to TIFF format? including ?data loading, data processing, and de-duplication and culling?; regarding OCR costs, the court acknowledged that there is ?less uniformity? about the issue of recovery and awarded costs for converting ESI into a ?readable format? (TIFF Conversion) – the equivalent of ?making copies? under 1920(4) – but denied costs for making that document searchable (OCR), noting that the requesting party had not ?shown why OCR was necessary to the production?

Electronic Data Involved: ESI Taxable costs

Safety Today, Inc. v. Roy, No. 2:12-cv-510, 2014 WL 1049962 (S.D. Ohio Mar. 17, 2014)

Dec 01 2014

Key Insight: Magistrate judge denied plaintiff’s motion for monetary sanctions based on defendants’ alleged disobedience of discovery orders, which plaintiff asserted made its imaging of certain electronic devices more expensive than necessary, since plaintiff did not submit any proof that piecemeal production of devices for imaging caused it additional vendor expense and record was too sparse to find a violation of the express terms of the orders

Nature of Case: Misappropriation of confidential business information, unfair competition

Electronic Data Involved: Hard drives, servers and smart phones

Didier v. Abbott Labs, No. 13-2046-JWL, 2014 WL 219851 (D. Kan. Jan. 21, 2014)

Dec 01 2014

Key Insight: Finding that steps taken by defendants to locate responsive documents and their continued effort to work with plaintiff and supplement their production appeared sufficient, court declined to impose drastic sanctions requested by plaintiff but did allow plaintiff to re-depose particular witness as to emails that were produced after the witness’s deposition since plaintiff may have been prejudiced by her inability to question the witness regarding the content of those emails

Nature of Case: Employment discrimination

Electronic Data Involved: ESI including text messages

Mazzei v. Money Store, No. 01cv5694 (JGK)(RLE), 2014 WL 3610894 (S.D.N.Y. July 21, 2014)

Dec 01 2014

Key Insight: Defendant failed to preserve data in its control (an issue it hotly contested) when it sold certain assets of its wholly owned subsidiary, including the database/?system? that contained the at issue data; court found failure to preserve was willful and in bad faith and that plaintiff had been prejudiced by the loss; where a non-party who works with defendant indicated that it had information from the at issue system but that the information was not ?readable? and that it would be expensive to extract and convert it, the court ordered defendant to bear the cost of determining whether the system was searchable and to pay plaintiff his attorneys fees for the motion for sanctions

Nature of Case: Class action re: violation of Truth in Lending Act

Electronic Data Involved: Database

Klipsch Group, Inc. v. Big Box Store Ltd., No. 12 Civ. 6283 (VSB)(MHD), 2014 WL 904595 (S.D.N.Y. Mar. 4, 2014)

Dec 01 2014

Key Insight: Where defendants failed to issue litigation hold and their belated oral instructions were inadequate both in form and content, court authorized plaintiff to undertake a forensic investigation into state of defendants’ computer systems for purpose of determining likelihood of document destruction, likely nature and volume of any such destroyed documents, whether some or all of those documents may be recovered, and the status of sales information on the computers; court deferred ruling on plaintiff’s motion for adverse inference instruction or cost-shifting pending results of investigation

Nature of Case: Trademark infringement

Electronic Data Involved: E-mails and other ESI

Wang v. Regatta Condo. Assoc., No. 1-12-3450, 2014 WL 632412 (Ill. App. Ct. Feb. 13, 2014)

Dec 01 2014

Key Insight: No error for trial court to grant summary judgment on plaintiff’s spoliation claim, a form of negligence under Illinois law, where there was no duty to preserve surveillance video, the record did not establish that defendants’ failure to preserve the video was intentional or that the video was adverse, and even if defendants had a duty to preserve the video, plaintiff failed to prove sufficient facts to establish that the loss of the video was the proximate cause of plaintiff’s inability to prove her underlying lawsuit

Nature of Case: Slip-and-fall

Electronic Data Involved: Surveillance video footage of skip-and-fall accident

U.S. v. Capitol Supply, Inc., No. 13-mc-0373 (BAH), 2014 WL 1046006 (D.D.C. Mar. 19, 2014)

Dec 01 2014

Key Insight: Where government had requested production in specific electronic formats (Database, Access or Excel) but company produced materials in PDF format that lacked requested detail and was not searchable across multiple documents, court found production insufficient and noted that the fact that company’s databases lacked certain functionality did not relieve company from responding to subpoenas with responsive information in usable, searchable format and directed company to produce responsive information “in a format that is reasonably usable, which includes searchable, just as its databases are presumably designed to respond to search queries”

Nature of Case: Investigation by Office of the Inspector General re whether company violated the False Claims Act; government petitioned for summary enforcement of OIG supboenas to Capitol Supply, Inc.

Electronic Data Involved: Sales data, country-of-origin information

Catagory:Case Summaries