Case Summaries – Page 142 – Electronic Discovery Law

Bailey v. Scoutware, LLC, No. 12-10281, 2014 WL 1118372 (E.D. Mich. Mar. 21, 2014)

Dec 01 2014

Key Insight: Because defendant was able to examine the subject cell phone with its expert, court ruled that plaintiff should also have the ability to examine the phone to determine if additional relevant text or voicemail messages exist or if there is evidence that text or voicemail messages were deleted, and ordered defendant to produce the current and old cell phones to plaintiff’s expert; court deferred ruling on other requested sanctions as premature and found that neither side was entitled to attorneys’ fees in connection with the motion

Nature of Case: Michigan Whistleblower Protection Act and breach of contract

Electronic Data Involved: Text messages and voicemail messages on cell phone of plaintiff’s former co-worker

Oros & Busch Application Techs., Inc. v. Terra Renewal Servs., Inc., No. 4:12CV00959 ERW, 2014 WL 897405 (E.D. Mo. Mar. 6, 2014)

Dec 01 2014

Key Insight: Court denied defendant’s motion for sanctions with leave to re-file later, where record did not show conduct by plaintiff to destroy or conceal evidence in an effort to suppress the truth, and record did not support the requisite finding of prejudice to defendant; court further denied plaintiff’s motion to strike counterclaims that were based on plaintiff?s alleged destruction of ESI, since it could not be said that the counterclaims could not succeed under any circumstances

Nature of Case: Tortious interference with contract, civil conspiracy

Electronic Data Involved: ESI stored on former employee’s laptop and external hard drive

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

State v. Otkovic, No. 20120197-CA, 2014 WL 969232 (Utah Ct. App. Mar. 13, 2014)

Dec 01 2014

Key Insight: Remanding case for retrial on other issues, appellate court found no error by trial court in admitting text messages into evidence, and discussed foundational requirements that must be met for admission of text messages

Nature of Case: Criminal

Electronic Data Involved: Text messages

Zeller v. S. Cent. Emergency Med. Servs., No. 1:13-CV-2584, 2014 WL 2094340 (M.D. Pa. May 20, 2014)

Dec 01 2014

Key Insight: Court ruled that plaintiff was entitled to a “first review” of results of independent forensic examination of plaintiff’s email account, and that plaintiff and defendants would share equally in cost of restoring and searching plaintiff’s emails, up to a maximum contribution by plaintiff of $1,500

Nature of Case: Family and Medical Leave Act claims

Electronic Data Involved: Plaintiff’s emails

Knoderer v. State Farm Lloyds, No. 06-13-00027-CV, 2014 WL 4699136 (Tex. App. Sep. 19, 2014)

Dec 01 2014

Key Insight: Trial court erred in granting remarkable discovery sanctions of procedural “death penalty” together with over $1 million in sanctions against plaintiffs, as destroyed evidence did not go to heart of case, but was, instead, impeachment evidence; record did not reflect the required consideration by trial court of appropriate lesser sanctions or an explanation of why case was exceptional and lesser sanctions would be inadequate; and court wrongly awarded attorneys’ fees, expert fees, and costs for the entire case rather than those related only to the sanctionable conduct

Nature of Case: Insurance dispute

Electronic Data Involved: Digital photographs

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

Catagory:Case Summaries