Case Summaries – Page 156 – Electronic Discovery Law

D.G. ex rel Strickland v. Yarbrough, No. 08-CV-074-GKF-FHM, 2013 WL 1343151 (N.D. Okla. Mar. 31, 2013)

Dec 01 2013

Key Insight: Addressing magistrate judge?s recommendations on plaintiffs? Motion for Award of Class Counsel Fees and Expenses, the district court accepted the magistrate judge?s recommendation that plaintiffs be awarded out of pocket expenses related to data storage and hosting (of electronic discovery), with some reductions; district could did not accept recommendation that plaintiffs recover for attorneys fees related to ?temporary attorneys? who conducted review of emails where there was no description provided of the work performed and where the district court took issue with plaintiffs characterization of the time as an ?expense? ?[r]ather than properly documenting and describing the time expended by the[ ] temporary attorneys?

Nature of Case: Class action, recovery of attorneys fees pursuant to 42 USC ? 1988

In re Am. Nurses Assoc., No. 08-CV-0378 2013 WL 588992 (D. Md. Feb. 13, 2013)

Dec 01 2013

Key Insight: Relying on Fed R Civ P 45(c), court granted third party?s request to shift discovery costs related to its search for and production of requested information and noted that the costs could have been controlled had plaintiffs participated in the selection of an e-Discovery vendor more quickly following the court?s original order shifting costs (the Scope of Work and the Estimated Cost Overview had been amended six times) and had plaintiffs sought the at-issue documents from the defendant hospitals first, rather than a third party; court declined to shift all of the third party?s attorneys fees, however, noting that ?[s]ubpoenas are a cost of doing business in today?s society?

Electronic Data Involved: Database contents, ESI

Harry Weiss, Inc. v. Moskowitz, — N.Y.S.2d —, 2013 WL 2341806 (N.Y. App. Ct. May 30, 2013)

Dec 01 2013

Key Insight: Sanction precluding plaintiff from presenting evidence or testimony in opposition to defendant?s defenses and counterclaims affirmed where plaintiff failed for two years to reveal that relevant ESI had been lost after it was allegedly printed; claimed that the relevant computer was ?broken? and had been discarded when defendant sought a forensic examination; and failed to issue a litigation hold; appellate court rejected contention that the disposal did not prejudice defendant because the files had been printed where that claim was contradicted at deposition and where hard copy did not contain metadata

Electronic Data Involved: ESI, hard drive/computer

Fawcett v. Altieri, 960 N.Y.S.2d 592 (N.Y. Sup. Ct. 2013)

Dec 01 2013

Key Insight: Court acknowledged the discoverability of social media content but reasoned that ?[i]n order to obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand,? and thus denied defendant’s motion to compel

Nature of Case: Personal injury

Electronic Data Involved: Social network content (Facebook, MySpace, Friendster, Flickr, etc.)

United States v Finazzo, No. 10-CR-457 (RRM)(RML), 2013 WL 619572 (E.D.N.Y. Feb. 19, 2013)

Dec 01 2013

Key Insight: Court found privilege was waived as to an allegedly privileged email received at, and then forwarded to another email address from, an employer-owned email address

Nature of Case: Indictment arising from conspiracy to receive kickbacks from clothing supplier

Electronic Data Involved: Email

Simms v. Deggeller Attractions, Inc., 2013 WL 49756 (W.D. Va. Jan. 2, 2013)

Dec 01 2013

Key Insight: In action arising from roller coaster accident, court denied motion to impose sanctions for failure to preserve potentially relevant photographs on roller coaster?s ?integrated photography system,? where there was no evidence presented explaining how long the photos were stored in the system (although Defendant ?appear[ed] to argue? that had been erased as early as two days after the accident) where there was no evidence of willful conduct, and where the prejudice was limited based on the availability of other evidence regarding whether other riders were wearing hats on the ride?an important question in the case

Nature of Case: Personal Injury (roller coaster accident)

Electronic Data Involved: Photographs

Swift Transp. Co. of Arizona, LLC v. Angulo, —F.3d—, 2013 WL 2928094 (8th Cir. June 17, 2013)

Dec 01 2013

Key Insight: Trial court did not abuse discretion in giving a spoliation instruction for a party?s failure to preserve satellite tracking information relevant to the whereabouts of its drivers at the time of the at-issue crash, where trial court was ?abundantly clear? that it believed the destruction was intentional, even if it did not specifically say ?bad faith? and where the victim/plaintiff was prejudiced by the failure to preserve; although the sanctioned party did produce a print out alleged to reflect the relevant satellite information, questions regarding the party?s veracity led the court to mistrust the accuracy of the document which contributed to the imposition of sanctions

Nature of Case: Malpractice related to underlying case involving automobile accident and resulting injuries

Electronic Data Involved: Satellite tracking data

Altercare Inc. v. Clark, No. 12CA010211, 2013 WL 3356577 (Ohio Ct. App. June 28, 2013)

Dec 01 2013

Key Insight: Where defendant failed to preserve plaintiff?s work computer at a time when litigation should have been reasonably foreseeable (because plaintiff?s employment ended under ?contentious? circumstances and because plaintiff was an attorney) and despite receipt of a specific written request for preservation, the trial court did not err in dismissing defendant?s claims against the plaintiff as a sanction

Nature of Case: Breach of employment contract and related claims

Electronic Data Involved: Work computer / computer hard drive

Surfcast v. Microsoft Corp., No. 2:12-cv-333-JAW, 2013 WL 4039413 (D. Me. Aug. 7, 2013)

Dec 01 2013

Key Insight: Despite confidentiality order that inadvertent production would not result in waiver, court found privilege was waived as to email (originally produced in hard copy) that was privileged ?on its face? (it sought ?lagal? [sic] advice and had indications that there were additional recipients to the email not apparent on the hard copy version, one of which turned out to be an attorney) and which was utilized in a deposition for approximately 30 minutes without Plaintiff?s objection; court reasoned that the confidentiality order could not be ?reasonably? read to protect against waiver under ?any and all circumstances? and that instead it established only that ?mere inadvertent production, standing alone, does not constitute waiver.?

Nature of Case: Patent Infringement

Electronic Data Involved: Email (originally produce in hard copy but also available electronically)

Newill v. Campbell Transportation Co., No. 2:12-cv-1344, 2013 WL 6002349 (W.D. Pa. Nov. 12, 2013)

Dec 01 2013

Key Insight: Court found defendant failed to conduct a reasonable investigation for responsive materials prior to serving its Initial Disclosures and responding to Plaintiff?s first requests for production where defendant failed to discover relevant photographs of the accident site taken by a former employee despite knowing that it was ?standard procedure? for such photographs to be taken; responding to Defendant?s claim that it needn?t extend its investigation to former employees, the court noted that ?[a]nalyzing the practical ability of corporations to obtain work-related documents from former employees, courts insist that corporations, at the very least, ask their former employees to cooperate before asserting that they have no control over documents in the former employees’ possession.? Export?Import Bank, 233 F.R.D. at 341 (citations omitted) (emphasis added).

Nature of Case: Jones Act negligence case

Electronic Data Involved: Digital photographs

Catagory:Case Summaries