Case Summaries – Page 142 – Electronic Discovery Law

Smith v. Hillshire Brands, No. 13-2605-CM, 2014 WL 2804188 (D. Kan. June 20, 2014)

Dec 01 2014

Key Insight: Court ordered plaintiff to respond to request for social networking documents that directly referenced or mentioned defendant or the matters raised in plaintiff?s complaint; court found request for production of complete copies of plaintiff?s social networking accounts to be overly broad and indicated its intention to ?follow what appears to be the intermediate course? i.e., allowing defendant ?to discover not the contents of plaintiff’s entire social networking activity, but any content that reveals plaintiff’s emotions or mental state, or content that refers to events that could reasonably be expected to produce in plaintiff a significant emotion or mental state? and ordered plaintiff to produce all such documents

Nature of Case: Violations of Title VII, Family Medical Leave Act

Electronic Data Involved: Contents of social networking accounts (Facebook, MySpace, Twitter)

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

Capital Ventures Int?l v. J.P. Morgan Mortgage Acquisition Corp., No. 12-10085-RWZ, 2014 WL 1431124 (D. Mass. Apr. 14, 2014)

Dec 01 2014

Key Insight: Plaintiff’s request for all RMBS-related documents that defendants previously produced in other lawsuits or to “any congressional body, regulatory agency, law enforcement agency or person” was overbroad and of speculative relevance; court granted motion to compel but adopted defendants’ proposal to run agreed-upon search terms over their productions to the SEC and NY attorney general, deeming such method sufficient to capture materials relevant to pending action; court also extended relevant time period for electronic searches

Nature of Case: Claims under the Massachussetts Uniform Securities Act relating to residential mortgage-backed security (“RMBS”) offerings

Electronic Data Involved: ESI

West Plains, LLC v. Retzlaff Grain Co., No. 8:13CV47, 2014 WL 2515198 (D. Neb. June 3, 2014)

Dec 01 2014

Key Insight: Where plaintiff produced thousands of documents on disc and in hard copy, and divided some of the electronic documents into files on the disc but otherwise provided no indices to guide defendants to responsive materials, court found plaintiff?s responses insufficient and ordered plaintiff to produce index or other tool to guide defendants to the documents responsive to each individual request for production

Nature of Case: Company sued competitor, and former employees who had resigned to join competitor, for misappropriation of confidential business information, tortious interference with business relationships, and related claims

Electronic Data Involved: ESI produced on disc

Dover v. British Airways, PLC (UK), No. CV 2012-5567 (RJD)(MDG), 2014 WL 4065084 (E.D.N.Y. Aug. 15, 2014), affirmed, Dover v. British Airways, PLC (UK), No. CV 2012-5567 (RJD)(MDG), 2014 WL 5090021 (E.D.N.Y. Oct. 9, 2014)

Dec 01 2014

Key Insight: Where parties entered into a stipulated protective order approved by the court that contained a provision concerning inadvertent disclosures, and plaintiffs inadvertently produced the protected information on the spreadsheets twice and conceded they were “careless,” court did not find plaintiffs’ conduct to be so “completely reckless” as to warrant a finding of waiver given the totality of the circumstances and particularly the nature of the production, plaintiffs’ prompt request for return of the protected information, and the overriding issues of fairness

Nature of Case: Class action alleging that defendant British Airways violated its frequent flyer program contract by imposing unlawful fuel surcharges on rewards flights

Electronic Data Involved: Spreadsheets prepared by non-testifying, consulting experts

Fleming v. Escort, Inc., No. 1:12-CV-066-BLW, 2014 WL 4853033 (D. Idaho Sep. 29, 2014)

Dec 01 2014

Key Insight: Where allegations covered events occurring over past 15 years and defendant produced almost no email in response to 65 document requests and 12 interrogatories, and despite general claim of privilege defendant did not provide a privilege log, court granted plaintiff’s motion and ordered defendant to answer three questions to allow plaintiff and court to evaluate defendant’s claim that it had produced everything: 1) What search terms did you use? 2) What computers or repositories did you search within? and 3) What was the time frame for your search? If questions were not answered fully and completely in 10 days, plaintiff would be allowed to file a new motion for sanctions

Nature of Case: Patent infringement

Electronic Data Involved: Email

Klayman v. City Pages, No. 5:13-cv-143-Oc-22PRL, 2014 WL 5426515 (M.D. Fla. Oct. 22, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion to compel given broad scope of the requests and plaintiff’s limited showing as to relevance, and defendants’ representation that they had produced all the materials upon which they relied in writing the subject publications; court further denied request for appointment of third party to conduct forensic examination of defendants’ work and personal computers, telephone records and cell phone records, finding that plaintiff’s conclusory and speculative assertions that defendants were concealing evidence were inadequate to meet his burden of showing good cause for such an invasive computer examination

Nature of Case: Defamation claims based on statements made in three newspaper articles

Electronic Data Involved: ESI

Las Vegas Sands Corp. v. Eighth Judicial Dist. Ct., 331 P.3d 876 (Nev. 2014)

Dec 01 2014

Key Insight: Nevada Supreme Court declined to intervene in discovery dispute scheduled for hearing by district court, concluding that the mere presence of a foreign international privacy statute did not itself preclude Nevada district courts from ordering litigants to comply with Nevada discovery rules — rather, the existence of such a statute would become relevant to the district court?s sanctions analysis in the event the discovery order was disobeyed; since district court had indicated it would balance defendant’s desire to comply with the privacy statute with other factors at the yet-to-be-held sanctions hearing, defendant failed to demonstrate that district court had exceeded its jurisdiction or exercised its discretion arbitrarily or capriciously and extraordinary relief was not warranted

Nature of Case: President and CEO of corporation brought action against foreign corporation alleging violation of employment agreement

Electronic Data Involved: Documents on hard drives, coipes of email

Warren Indus., Inc. v. PMG Ind. Corp., No. 13-CV-13026, 2014 WL 5705011 (E.D. Mich. Nov. 5, 2014)

Dec 01 2014

Key Insight: Court rejected defendants’ argument that they did not have access to the email of defendants? Chairman of the Board because the email was kept on a server in Germany that defendants did not own or control, and ruled that, although defendants’ IT manager may not be able to access the Chairman’s email from his Indiana location, the Chairman, as Chairman of the Board of defendant companies, “indeed has possession, custody, and control over his own e-mail communications, regardless of where the server containing these e-mails [was] located; court granted plaintiff’s motion to compel and awarded plaintiff its attorney’s fees and costs associated with the motion

Nature of Case: Breach of contract

Electronic Data Involved: Email stored on server in Germany

In re Bridgepoint Educ., Inc., No. 12cv1737 JM (JLB), 2014 WL 3867495 (S.D. Cal. Aug. 6, 2014)

Dec 01 2014

Key Insight: Plaintiff sought to expand the scope of defendants? review and argued that defendants? alleged cost and burden would be lower than represented because defendants based their representations on manual review, rather than predictive coding. Defendants responded that manual review was still necessary where the predictive coding tool merely indicated a probability that a document was relevant and was not ?foolproof? – thus requiring the review. Relying on Rule 26(b)(2)(C), the court concluded that the additional discovery would be unduly burdensome and declined to grant Plaintiff?s request. The court also addressed Plaintiff?s request to require the defendants to run documents already produced through the predictive coding process. The court declined, reasoning that it had previously approved defendants? method of ?using linear screening with the aid of search terms? but, where defendant was willing to run additional terms, directed the parties to meet to discuss such terms.

Electronic Data Involved: ESI, email

Catagory:Case Summaries