Case Summaries – Page 143 – Electronic Discovery Law

In re Uehling, No. 1:14-mc-00009-LJO-BAM, 2014 WL 1577459 (E.D. Cal. Apr. 17, 2014)

Dec 01 2014

Key Insight: Court denied defendant’s motion to compel nonparty to answer deposition questions and produce documents, finding that nonparty’s burden of producing copy of external hard drive containing 9.47 gigabytes of information was substantial as the material would need to be reviewed for privilege and for potential redaction and withholding based on confidentiality, privacy and proprietary information purposes, the benefit of the documents to defendant was “minimal,” and defendant had an alternative source for the information sought (i.e., the plaintiff)

Nature of Case: Insurance coverage dispute

Electronic Data Involved: Hard drive that non-party witness provided to DOJ in the course of the DOJ’s investigation of plaintiff

Commonwealth v. Gelfgatt, 11 N.E.3d 605 (Mass. 2014)

Dec 01 2014

Key Insight: Where the facts that would be conveyed by a criminal defendant through his act of decryption of computer files — i.e., his ownership and control of the computers and their contents, knowledge of the act of encryption, and knowledge of the encryption key — are already known to the government and are thus a “foregone conclusion,” compelling the defendant to enter his encryption key does not violate the defendant’s rights under the Fifth Amendment because the defendant is only telling the government what it already knows; accordingly, court reversed trial judge’s denial of government’s motion to compel decryption and remanded the case to the trial court for further proceedings

Nature of Case: Criminal case regarding mortgage fraud scheme

Electronic Data Involved: ESI; encryption key

Weitzman v. Maywood, Melrose Park, Broadview Sch. Dist. 89, No. 13 C 1228, 2014 WL 4269074 (N.D. Ill. Aug. 29, 2014)

Dec 01 2014

Key Insight: Court granted plaintiff?s motion for an adverse inference instruction where school district destroyed clearly relevant recordings of school board?s closed session meetings by failing to suspend its usual document destruction policies after having notice of its duty to preserve, and where plaintiff suffered substantial prejudice as a result because she was deprived of perhaps the best evidence concerning school district?s real reasons for her termination; court further denied school district?s pending motion for summary judgment since, in light of the adverse inference against the school district, the material facts as to the district?s reasons for terminating plaintiff were, at a minimum, disputed, and in fact appeared to support plaintiff?s claim of discrimination

Nature of Case: Age Discrimination in Employment Act claim

Electronic Data Involved: Tape recordings of school board’s closed session meetings during which board members discussed the decision not to renew contracts of plaintiff and others

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

Clauss Constr. v. UChicago Argonne, LLC, No. 13 C 5479, 2014 WL 5390665 (N.D. Ill. Oct. 20, 2014)

Dec 01 2014

Key Insight: Where plaintiff discovered numerous boxes of relevant or potentially relevant documents that had not been previously produced, but did not produce them in electronic format with Bates-labeling in accordance with parties’ agreed production protocol and instead provided photographs of the documents and boxes and some incomplete indexes, defendants successfully argued that plaintiff either should have to comply with parties’ agreement and produce material in correct format or nonconforming documents should be excluded; plaintiff chose to have newly discovered documents excluded from evidence; court found that monetary sanctions were appropriate and awarded defendant its attorneys’ fees and expenses incurred in filing the motion and attending hearing

Nature of Case: Breach of contract claims

Electronic Data Involved: Hard copy documents

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

Green v. Am. Modern Home Ins. Co., No. 1:14-cv-04074, 2014 WL 6668422 (W.D. Ark. Nov. 24, 2014)

Dec 01 2014

Key Insight: Court granted parties’ Joint Motion for Entry of Agreed Order Establishing Protocol for Production of Electronically Stored Information, which addressed search terms, production format, and various other e-discovery matters

Nature of Case: Insurance coverage

Electronic Data Involved: ESI

Abdulahi v. Wal-Mart Stores E., L.P., 76 F. Supp. 3d 1393 (N.D. Ga. Dec. 2014)

Dec 01 2014

Key Insight: Where plaintiff was fired for failure to lock a gate?which he disputed?during the pendency of separate EEOC investigations into plaintiff?s charges of discrimination and where the at-issue manager claimed to have viewed footage confirming the gate was unlocked but failed to preserve it, the court determined that Defendant was under a duty to preserve (?due to an ongoing EEOC investigation during the applicable time period, Wal-Mart?s own investigation into the alleged employee misconduct including a review of the video footage, and litigation being reasonably foreseeable?), that plaintiff was prejudiced by the loss because neither the at-issue manager?s testimony or emails were equivalents for the video, and that plaintiff showed ?more than mere negligence? in the destruction, the court ordered an adverse inference creating a presumption that ?Wal-Mart?s stated reason for terminating Plaintiff was pretextual and that retaliation was the but-for cause of Plaintiff?s termination? and awarded attorney?s fees

Nature of Case: Employment litigation

Electronic Data Involved: Video surveillance footage

Siltronic Corp. v. Employers Ins. Co. of Wausau, No. 3:11-cv-1493-ST, 2014 WL 991822 (D. Or. Mar. 13, 2014)

Dec 01 2014

Key Insight: After non-party produced responsive documents and sought reimbursement of $17,298 from defendant, court found that that hourly rate of $65 to $160 to search and copy documents was ?inherently unreasonable? and could not be justified, and invoices were vague and included entries for internal communications and meetings and time for senior scientists “to stand around the copier and copy documents”; court ruled that the defendant’s prior payment of $5,670 — about one-third of the total charge — was a reasonable amount, and that non-party must either absorb or charge the plaintiff for the remainder of its cost to comply with subpoena

Electronic Data Involved: Non-party documents relating to or arising out of specific invoices

In re Actos (Pioglitazone) Prods. Liab. Litig., MDL No. 6:11-md-2299, 2014 WL 355995 (W.D. La. Jan. 30, 2014)

Dec 01 2014

Key Insight: Despite defendants? claims that litigation regarding claims of bladder cancer were not reasonably foreseeable until 2011, and thus the preservation obligation did not attach as to evidence related to those claims, the court found that the duty to preserve began in 2002, when defendants disseminated a broad and general litigation hold requiring the preservation of documents and ESI which ?discuss, mention, or relate to Actos? and that documents destroyed after that (including the files of 46 employees) were spoliated; court ordered that the jury would hear about the destruction and be instructed by the court on how to proceed (instruction would be crafted after hearing all the evidence)

Nature of Case: Products Liability

Electronic Data Involved: ESI (46 “custodial files”)

Catagory:Case Summaries