Case Summaries – Page 152 – Electronic Discovery Law

Petition of John W. Danforth Group, Inc, No. 13-MC033S, 2013 WL 3324017 (W.D.N.Y. July 1, 2013)

Dec 01 2013

Key Insight: Where petitioner sought to perpetuate evidence and an order of preservation pursuant to Rule 27 in light of an anticipated witness?s untruthfulness about his use of social media and refusal to turn over his personal mobile phone or to allow for a backup to be made absent a court order, the court declined to issue such an order where Rule 27 relief should be granted ?only in special circumstances to preserve evidence that would otherwise be lost? and where the petitioner?s ?generalized statements of concern? were insufficient to warrant pre-complaint intervention

Nature of Case: Pre-complaint order of preservation

Electronic Data Involved: Anticipated witness’s mobile device

Jewell v. Aaron?s Inc., No. 1:12-CV-05630-AT, 2013 WL 3770837 (N.D. Ga. July 19, 2013)

Dec 01 2013

Key Insight: Court declined to approve Defendant?s discovery request for 87 opt-in Plaintiffs to produce all content of websites, blogs, or social media sites posted by them during work hours for a four year period where Defendant failed to make a ?sufficient predicate? showing that the information sought was reasonably calculated to lead to the discovery of admissible evidence and where the request was overly burdensome in light of the ?remote relevance of the information? sought

Nature of Case: Collective Action

Electronic Data Involved: Contents of websites, blogs, social media (e.g., Facebook) posted by Plaintiffs during work hours for a four year period

Teledyne Instruments, Inc. v. Cairns, No. 6:12-cv-854-Orl-28TBS, 2013 WL 5781274 (M.D. Fla. Oct. 25, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought to inspect Defendants? computers and devices based on discrepancies discovered between metadata produced by Defendants and metadata extracted by Plaintiff?s expert, court denied the motion upon the explanation that system metadata and application metadata are not always the same and where Plaintiff failed to adequately explain why the discrepancies were cause for concern; court undertook extended discussion of format of production issues related to production ?in the ordinary course of business? and found that Defendants? production of native files (both email and other ESI) with an accompanying spreadsheet providing additional information related to where the documents were kept and how they were organized was sufficient, but, as to ?converted files and non-ESI documents,? ordered a production log identifying to which request each was responsive;? court ordered Plaintiff to produce a categorical privilege log

Nature of Case: Breach of contract, conversion

Electronic Data Involved: ESI, email, hard copy

Valentini v. Citigroup, Inc., No. 11 Civ. 1355(JMF), 2013 WL 4407065 (S.D.N.Y. Aug. 16, 2013)

Dec 01 2013

Key Insight: Court declined to dismiss complaint or grant adverse inference instruction as sanction for plaintiffs’ blatant disregard of the discovery process as there was no evidence of willfulness or maliciousness, and instead awarded all attorneys’ fees and costs that defendants incurred as a result of plaintiffs’ dilatory conduct; court further ordered parties to brief issue of whether more severe sanctions should be imposed against plaintiff entity that had failed to produce a single document from its files

Nature of Case: Fraud and related claims

Electronic Data Involved: ESI

Cobb v. Commonwealth, No. 1526-12-1, 2013 WL 5744363 (Va. Ct. App. Oct. 22, 2013)

Dec 01 2013

Key Insight: Trial court did not err in admitting into evidence Verizon Wireless text message records reflecting text messages sent by and between shooter?s cell phone and defendant?s cell phone, as such records constituted “originals” or “duplicate originals” for purposes of the best evidence rule, and there was sufficient foundation for the records? admission under the business records exception to the hearsay rule as reliability of records was established through testimony of the custodian of records for Verizon Wireless that the records were accurate, they were made in the regular course of business, they were relied upon by Verizon Wireless in the transaction of business, and they were made contemporaneously with the creation of the text messages themselves

Nature of Case: Defendant was found guilty of murder, attempted robbery and other crimes

Electronic Data Involved: Text messages

Magnuson v. Newman, No. 10 Civ. 6211(JMF), 2013 WL 5380387 (S.D.N.Y. Sep. 25, 2013)

Dec 01 2013

Key Insight: Although court observed there was little question that defendants’ disclosures had not included documents that were once in their possession that would be relevant to the case, as they had failed to produce any emails between and among themselves and any drafts of contracts relating to the issues of the lawsuit, court declined to impose discovery sanctions because plaintiffs failed to carry their burden of establishing that defendants had an obligation to preserve the evidence at the time it was destroyed; court rejected plaintiffs’ contention that defendants’ admitted failure to back up their computers or put a litigation hold in place constituted per se gross negligence, and stated that a party?s failure to adopt good preservation practices was one factor in the determination of whether discovery sanctions should issue

Nature of Case: Fair Labor Standards Act claims brought by a group of television production professionals and companies

Electronic Data Involved: Emails and documents

Connecticut Gen. Life Ins. V. Earl Scheib, Inc., No. 11-CV-0788-GPC (WVG), 2013 WL 485846 (S.D. Cal. Feb. 6, 2013)

Dec 01 2013

Key Insight: Where Defendant presented evidence that the cost of retrieving the requested information?not including the cost of attorney review or the time spent coordinating the production–was equal to the amount in controversy, the court concluded that the requests at issue were unduly burdensome and found that even where Plaintiff had explained the relevancy of the information sought, ?the expense associated with responding ? [was] too great when weighed against what is at stake in the litigation?; court?s analysis included consideration of inaccessibility based on the costs of production and noted that other discovery was available

Electronic Data Involved: ESI

Stirling v. St. Louis Cnty. Police Dept., No. 4:11CV01932, 2013 WL 2244638 (E.D. Mo. May 21, 2013)

Dec 01 2013

Key Insight: Where an individual defendant?s emails were deleted pursuant to the county?s ?routine system updates? and were therefore unavailable when requested, the court clarified that the duty to preserve arises ?when the party has notice that the evidence is relevant to litigation?most commonly when suit has already been filed ?? and NOT when a request is served and ordered defendants to search all available sources where the emails may still exist, including backup files, and to file a notice with the court advising it of such sources and that defendants must show cause why they should not be required to retrieve and produce such documents

Electronic Data Involved: Email

Kwan Software Eng?g, Inc. v. Foray Techs., LLC, No. C 12-03762 SI, 2013 WL 5487421 (N.D. Cal. Oct. 1, 2013)

Dec 01 2013

Key Insight: Where parties agreed to production of ESI in searchable form with metadata but Defendant produced TIFF images without metadata, court ordered re-production of ESI in accordance with parties’ agreement and amended the pretrial schedule

Electronic Data Involved: ESI and metadata

West Penn Allegheny Health Sys. v. UPMC, No. 2:09-cv-00480-JFC, 2013 WL 12134101 (W.D. Pa. Feb. 15, 2013)

Dec 01 2013

Key Insight: Where a non-party resisted production of requested information arguing that it could be more easily obtained from elsewhere and that production would impose an undue burden, including an estimated $38,00 in personnel costs alone, the court reasoned that there was no rule prohibiting Plaintiff from seeking documents from a non-party that were also likely to be in Defendant?s possession and, addressing the alleged burden, rejected arguments based on the documents? lack of organization (?less than optimal recordkeeping? did not rise to the level of ?undue burden?); where the requesting party offered to pay the costs of collection and review (by outside counsel), court rejected non-party?s privacy concerns in light of the protective order and recommended that if the non-party rejected the cost sharing offer, he should be required to pay for production himself; motion to quash denied

Electronic Data Involved: ESI

Catagory:Case Summaries