Case Summaries – Page 142 – Electronic Discovery Law

Duluc v. AC & L Good Corp., 990 N.Y.S.2d 24 (N.Y. App. Div. 2014)

Dec 01 2014

Key Insight: Court affirmed denial of motion for sanctions where defendant preserved 84 seconds of surveillance footage in response a request to preserve footage or photos that ?depict the subject slip and fall accident? and where the remainder of the footage had been automatically overwritten before plaintiff requested broader preservation; court reasoned that: ?While it may have been a better practice to preserve any footage of the area from any camera for a period before and after the accident, that was not the request made to defendants, and it would unfair to defendant to penalize it for not anticipating plaintiff’s additional requests.?

Nature of Case: Personal injury / slip and fall

Electronic Data Involved: Video surveillance footage

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

Network Cargo Sys. U.S.A., Inc. v. Pappas, No. 13 C 9171, 2014 WL 1856773 (N.D. Ill. May 7, 2014)

Dec 01 2014

Key Insight: Where e-discovery consultant jointly retained by parties reported that three previously undisclosed flash drives had been connected to former employee’s personal computers during the relevant time period, court agreed with plaintiff that consultant should be allowed to image and review the three flash drives but ruled that costs of such review would be borne by plaintiff given the likely limited usefulness of the search

Nature of Case: Misappropriation of confidential information

Electronic Data Involved: Flash drives and other electronic devices used by former employee

Green v. Monarch Recovery Mgmt., Inc., No. 1:13-cv-00418-SEB-MJD, 2014 WL 1631825 (S.D. Ind. Apr. 24, 2014)

Dec 01 2014

Key Insight: Where defendant produced PDF version of requested spreadsheet which was over 1,000 pages long when printed with only 50 pages that were not redacted, court ruled that spreadsheet must be produced in its native Excel format, explaining: 1) “One of the unique strengths of Excel software is the ability to implement calculations and formulae that are not evident in a PDF version, so merely a PDF imprint of the surface information is not sufficient,” 2) the ability to search the spreadsheet is essential to its usefulness, and 3) due to its structure, a printed or PDF version of a large Excel spreadsheet is “often useless” from an evidentiary standpoint

Nature of Case: Fair Debt Collection Practices Act claims

Electronic Data Involved: Excel spreadsheet

L-3 Commc?ns Corp. v. Jaxon Eng?g & Maintenance, Inc., No. 10?cv?02868?MSK?KMT, 2014 WL 3732943 (D. Colo. July 29, 2014)

Dec 01 2014

Key Insight: Where special master was appointed to review tens of thousands of documents listed on defendants? privilege log and issue a report and order after determining, as to each document, whether the document was subject to a claim of work product, attorney-client privilege, spousal privilege or ?so intensely personal and so utterly irrelevant that they should be withheld from production,? district court painstakingly reviewed special master’s report de novo with respect to specified documents subject to objection by the parties and made final rulings

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI stored on computer hard drives

Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 12-2350-SAC, 2014 WL 806122 (D. Kan. Feb. 28, 2014)

Dec 01 2014

Key Insight: Court denied in most respects plaintiff’s motion for protective order, finding that plaintiff’s undue burden and expense arguments were unsupported and conclusory; court further denied plaintiff’s alternative proposal to shift some of the uncalculated ESI costs onto defendants as plaintiff failed to show that the disputed ESI production was inaccessible because of undue burden or cost, and because other relevant factors did not weigh in plaintiff’s favor; court further denied plaintiff?s request for a discovery conference or appointment of an ESI master, and ordered the parties to meet and confer regarding the proper method to search custodian hard drives, and suggested the parties consider a clawback provision specifically for ESI harvested after running the parties? respective search terms

Nature of Case: Insurance coverage dispute

Electronic Data Involved: ESI in databases and stored on custodian hard drives

In re Yasmin & Yaz (Drospirenone) Mkg., Sales Practices & Prods. Liab. Litig., No. 3:09-md-02100-DRH-PMF, MDL No. 2100, 2014 WL 4961490 (S.D. Ill. Oct. 3, 2014)

Dec 01 2014

Key Insight: Court applied Rule 502 to conclude that disclosure of privileged slide presentations was inadvertent and did not waive attorney-client privilege; court ordered plaintiffs to return presentations and all copies to defendants and destroy all work product reflecting content from presentations, and directed clerk of court to strike from the court?s record certain exhibits containing references to the presentations

Nature of Case: 32 class actions relating to at least one of the drospirenone-containing oral contraceptives Yaz and Yasmin

Electronic Data Involved: Presentation prepared by defendants’ in-house counsel to convey legal advice to corporate employees and other presentations in which another employee conveyed the legal advice from the in-house counsel presentation to other corporate employees

Lovett v. Cole, No. 1:11-cv-277, 2014 WL 5426168 (S.D. Ohio Oct. 22, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff?s motion for sanctions based on correctional facility?s failure to preserve video surveillance footage of ?out-of-place? incident that preceded use of force incident, or digital versions of photographs taken of plaintiff?s injuries and cell after use of force incident, finding that plaintiff failed to establish a duty to preserve digital versions of photographs where hard copy photographs were preserved in accordance with the facility?s policy and procedure, and there was no evidence that defendants knew about the ?out-of-place? incident or recognized it as relevant to the use of force incident (the video footage of which was preserved); court further found that plaintiff failed to show that defendants deliberately lost or destroyed the evidence with a culpable state of mind

Nature of Case: Inmate sued correctional officers for use of excessive force

Electronic Data Involved: Video footage and digital information regarding plaintiff’s injuries and cell

Shire LLC v. Amneal Pharms., LLC, No. 2:11-cv-03781 (SRC)(CLW), 2014 WL 1509238 (D.N.J. Jan, 10, 2014)

Dec 01 2014

Key Insight: Weighing five factors to resolve the issue of waiver by inadvertent disclosure, court found that the use of analytical software without attorney review did not constitute reasonable steps to prevent inadvertent disclosure, and also faulted defendants? efforts to rectify the error, noting that defendants did not conduct a remedial investigation until after plaintiff alerted defendants that the production appeared to contain privileged documents; court concluded that, in light of the fact that the inadvertent disclosure was the result of a failure to review, justice would be served by a finding of waiver

Nature of Case: Patent infringement

Electronic Data Involved: Documents protected by attorney-client privilege

Peterson v. Matlock, No. 11-2594 (FLW)(DEA), 2014 WL 5475236 (D.N.J. Oct. 29, 2014)

Dec 01 2014

Key Insight: Where plaintiff’s medical records were previously provided in a PDF file organized in reverse chronological order and plaintiffs agreed to provide metadata contained in the audit trail, and plaintiff then sought production of the records either in their native format with the required software reader or broken down into “searchable headings,” court found that defendants had demonstrated they would suffer substantial hardship and/or expense in complying with plaintiff?s request to provide the records in their native format, and that such burden outweighed plaintiff?s interests in receiving the records in native format

Nature of Case: Claims arising from alleged assault by correctional officers

Electronic Data Involved: Plaintiff’s electronically stored medical records

Catagory:Case Summaries