Case Summaries – Page 142 – Electronic Discovery Law

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

Pac. Packaging Prods., Inc. v. Barenboim, No. MICV200904320, 2014 WL 2766735 (Mass. Super. Ct. Jan 31, 2014)

Dec 01 2014

Key Insight: After ten days of hearings on Plaintiff?s Emergency Motion for Judgment on All Claims Based upon Defendants? Fraud Upon the Court, court found that defendants violated preservation order and deliberately ignored preliminary injunction requiring defendants to turn over all written or digital materials taken from or generated by plaintiff, or derived in whole or in part from documents generated by plaintiff, that contain customer lists, pricing information or similar information, and not to retain copies of such materials, and that defendants spoliated evidence and committed a fraud upon the court; appropriate sanction was the entry of default against defendants, dismissal of the defendants? counterclaims, and an order requiring defendants to compensate plaintiff for attorneys? fees and costs incurred in litigating the motion; parties to submit memoranda describing their views regarding the extent of the default established and the future course of the litigation

Nature of Case: Distributer sued former employees who formed competing company

Electronic Data Involved: Computers, laptops, hard drives and other electronic storage devices

EEOC v. Suntrust Bank, No. 8:12-cv-1325-T-33MAP, 2014 WL 1364982 (M.D. Fla. Apr. 7, 2014)

Dec 01 2014

Key Insight: Court denied without prejudice EEOC?s motion for an adverse inference jury instruction, indicating it may consider this ruling at a later date if presented with further evidence tending to show bad faith conduct by SunTrust; court would permit the EEOC to introduce evidence at trial concerning SunTrust?s video surveillance system, SunTrust?s policies relating to use and preservation of video surveillance footage, and SunTrust?s failure to preserve video footage at issue, where Suntrust isolated and carefully reviewed tapes to investigate (and partly validate) one plaintiff?s claims, but then put that same footage back into circulation to be taped over and did not retain or preserve the footage

Nature of Case: Sexual harassment

Electronic Data Involved: Video surveillance footage from bank’s security cameras

E.A.F.F. v. United States, No. SA-08-CA-124-XR, 2014 WL 1652598 (W.D. Tex. Apr. 23, 2014)

Dec 01 2014

Key Insight: Rejecting plaintiff’s challenge to $65,000 for scanning expenses as taxable costs where discovery production was voluminous and parties had agreed that defendants would produce their responsive documents in electronic format, court ruled that scanning of documents to create digital duplicates amounted to “making copies of materials” under Section 1920(4); however, because invoices indicated that requested costs may include more than just scanning, court would allow defendants to supplement bill of costs to specifically identify which portion of invoice was for scanning/making copies or to clarify that the entire cost was, in fact, for scanning/making copies

Nature of Case: Unaccompanied alien minors brought action against Office of Refugee Resettlement alleging they were physically and sexually abused while in detention awaiting final adjudication of their immigration status

Electronic Data Involved: Electronic images of paper documents

Am. Health, Inc. v. Chevere, No. 12-1678 (PG), 2014 WL 3955906 (PG), 2014 WL 3955906 (D.P.R. Aug. 14, 2014)

Dec 01 2014

Key Insight: Court found that entry of default was too harsh a punishment and that lesser sanction such as an adverse inference instruction was available and adequate to temper prejudice to plaintiffs resulting from individual defendant?s admitted deletion of e-mails containing plaintiff?s confidential information; court further ordered defendants to pay plaintiffs $2,500 for attorneys? fees no later than August 22, 2014

Nature of Case: Claims under the Computer Fraud and Abuse Act, Stored Wire and Electronic Communications and Transactional Records Access Act, and the Wire and Electronic Communications and Interception of Oral Communications Act

Electronic Data Involved: Email attachments

In re Text Messaging Antitrust Litig., No. 08 C 7082, MDL No. 1997, 2014 WL 4343286 (N.D. Ill. Sep. 2, 2014)

Dec 01 2014

Key Insight: After granting summary judgment to defendants, court evaluated defendants’ bills of costs under Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) and sustained plaintiffs’ objections to several categories of defendants’ claimed e-discovery expenses because they did not constitute the cost of “making copies” under Section 1920(4), but were preparatory steps that occurred prior to copying or occurred after copying, e.g., electronic data “processing” expenses, “quality check” expenses, OCR costs, ?tech time,? ?data capture,? ?master CD replication,? costs associated with processing or creation of a “load file,” or cost of software packages used in production process; costs of converting native files to TIFF were recoverable

Nature of Case: Plaintiffs unsuccessfully claimed price-fixing among providers of text messaging services

Electronic Data Involved: ESI

Pick v. City of Remsen, No. C 13-4041-MWB, 2014 WL 458732 (N.D. Iowa Sep. 15, 2014)

Dec 01 2014

Key Insight: District court affirmed magistrate judge’s order granting defendants’ motion for order requiring destruction of inadvertently-produced privileged email, rejecting plaintiff’s various objections and finding no clear error in magistrate judge’s application of five-step “middle of the road” analysis set forth in Hydroflow, Inc. v. Enidine Inc., 145 F.R.D. 626, 637 (W.D.N.Y. 1993) which considerations include: (1) reasonableness of precautions, (2) number of inadvertent disclosures, (3) extent of the disclosures, (4) timeliness of rectifying measures, and (5) overriding interest in justice

Nature of Case: Libel, slander, wrongful termination

Electronic Data Involved: Privileged email

Schreane v. Beemon, 575 Fed. Appx. 486 (5th Cir. 2014)

Dec 01 2014

Key Insight: District court did not err in rejecting plaintiff?s request for spoliation inference based on erasure of surveillance tape where plaintiff failed to make the requisite showing of bad faith, as plaintiff offered no evidence that anyone who knew of his objections to the subject correctional officers? conduct was involved in the decision to record over the tape; court further noted that government produced what remained of requested tape (a few minutes of plaintiff?s assault), government provided affidavit of electronics technician who described prison?s general policy of automatically recording over surveillance video not marked for investigation within 15-30 days of recording, and there was no indication that any prison official even viewed the footage because it was not live-monitored 24 hours a day

Nature of Case: Prisoner brought Bivens action against correctional officer, alleging Eighth Amendment failure-to-protect claims

Electronic Data Involved: Surveillance tape

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

Catagory:Case Summaries