Case Summaries – Page 156 – Electronic Discovery Law

Shawback v. Wells Fargo Bank N.A., No. 3:11-cv-00243 JWS, 2013 WL 3306078 (D. Alaska July 1, 2013)

Dec 01 2013

Key Insight: Where Defendant sought spoliation sanctions for Plaintiff?s failure to preserve communications and other evidence related to her job search (related to her mitigation of damages) and where Plaintiff?s counsel explained that many of the job-seeking activities were undertaken electronically and did not result in emails to be preserved, the court reasoned that Plaintiff?s degree of fault with respect to the online services was ?not large,? that allowing her to testify that she ?periodically? reviewed job lists and ?sometimes? clicked on the links was not ?seriously prejudicial,? and that the sanctions sought were disproportional and thus ordered that Plaintiff could not testify regarding specific job inquiries absent documentation of that inquiry and that she could not testify that she applied for one-hundred or more jobs, but indicated that Plaintiff would be allowed to testify that she looked at jobs periodically and sometimes clicked on the links and to testify regarding job applications for which she provided documentation

Nature of Case: Employment discrimination

Electronic Data Involved: Data related to online job searching

Reinsdorf v. Academy Ltd., No. 3:13-0269, 2013 WL 3475183 (M.D. Tenn. July 10, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought a preservation order based primarily on Defendant?s refusal to share the details of its preservation efforts and based on speculation that Defendant had not preserved certain evidence (based on its use of a blank, rather than ?actual? purchase order as an exhibit to a motion), the court found that plaintiff offered only speculation and denied the motion; court also commented, based on the detailed nature of Plaintiff?s proposed order, that ?Plaintiff essentially wants the Court to grant a discovery request that has not been made?

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

Whiteamire Clinic, P.A., Inc. v. Quill Corp., No. 12 C 5490, 2013 WL 5348377 (N.D. Ill. Sept. 24, 2013)

Dec 01 2013

Key Insight: Where defendant sought to avoid production of ESI arguing that the retrieval of the requested information from its information systems would be unduly burdensome because of the manner in which the ESI was stored, the court noted that accepting such an explanation would create a ?perverse incentive? encouraging companies to store their data in a way that made it inaccessible except at great burden or cost and granted plaintiff?s motion to compel; court ordered defendant to produce an image of the hard drives of its four relevant information systems to Plaintiff?s expert who would retrieve the relevant information and provide it to defendant for review before production to the plaintiff; Plaintiff would bear the costs (voluntarily).

Nature of Case: Violation of Telephone Consumer Protection Act (sending of unwanted faxes)

Electronic Data Involved: ESI related to recipients of faxes

In re Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig., MDL No. 2342, 2013 WL 8445354 (E.D. Pa. Oct. 31, 2013)

Dec 01 2013

Key Insight: Upon the Plaintiffs? Steering Committee?s motion to compel Pfizer to produce a log identifying documents withheld from production as non-responsive or irrelevant, particularly email attachments, the court noted the prior comprehensive treatment of the question of whether attachments must be produced in Abu Dhabi Commercial Bank v. Morgan Stanley & Co, Inc., No. 08 Civ. 7508(SAS), 2011 WL 3738979 (S.D.N.Y. Aug. 18, 2011) and concluded in this case that requiring defendant to log or produce with redactions those documents previously withheld was not warranted absent a showing of a ?systematic failure in Pfizer?s document review? or that the failures were ?on a large scale? or the product of an ?unjustified decision? but reasoned that the burden of requiring a log or other justification for the witholdings going forward would not carry as high a burden and ordered the parties to confer to determine how best to track that information going forward

Nature of Case: Product Liability

Electronic Data Involved: Attachments to ESI, particularly email

Ford Motor Co. v. Mich. Consol. Gas Co., No. 08-CV-13503, 2013 WL 5435184 (E.D. Mich. Sep. 27, 2013)

Dec 01 2013

Key Insight: Magistrate judge evaluated plaintiffs? work product, attorney-client privilege, joint defense and common interest privilege claims, set out various findings and guidelines, and ordered plaintiffs to update their respective privilege logs and produce certain documents; magistrate judge further ruled that, because Ford had earlier produced voluminous documents as they were kept in the usual course of business, it had no further duty under Rule 34 or otherwise to organize and label the documents to correspond with individual requests for production

Nature of Case: Current and former property owners sued former operator of manufactured gas plant

Electronic Data Involved: Environmental investigation, remedy assessment and allocation related documents

Keenan v. Int?l Assoc. of Machinists & Aerospace Workers, No. 2:10-cv-277-GZS, 2013 WL 1314302 (D. Me. Mar. 28, 2013)

Dec 01 2013

Key Insight: Court denied motion for spoliation sanctions for plaintiff?s disposal of personal computer that allegedly crashed where the evidence indicated no bad faith (plaintiff admitted that disposal of the computer was an error due to his own ignorance) and where defendants prejudice was limited in light of other evidence and their ability to explore plaintiff?s truthfulness regarding his assertions that he filed a timely appeal (a copy of which was allegedly lost when the computer crashed and was disposed of) at trial; although court declined to exclude evidence (the requested sanction) it left open the possibility that other sanctions may be imposed ?at a later stage?

Electronic Data Involved: Personal Computer

Fairview Ritz Corp. v. Borough of Fairview, No. 09-875 (JLL), 2013 WL 5435060 (D.N.J. Sept. 27, 2013)

Dec 01 2013

Key Insight: Upon motion for reconsideration based on Plaintiff?s location and production of a document previously found to have been spoliated, court found that an adverse inference and monetary sanctions predicated on the finding of spoliation were no longer appropriate but ordered Plaintiff?s counsel to show cause why monetary sanctions should not be imposed for the delay and Defendants? protracted efforts to procure the document?s production

Electronic Data Involved: Single document (ESI)

Gordon v. Dreamworks Animation SKG, Inc., No. 1:11-10255-JLT, 2013 WL 1292520 (D. Mass. Mar. 28, 2013)

Dec 01 2013

Key Insight: Court ordered spoliation sanctions for Plaintiff?s intentional destruction of materials related to his claim of copyright infringement at a time when he had a duty to preserve as evidenced by his actions to ?preserve? his work with the copyright office before the release of the allegedly infringing film (Kung Fu Panda) and his consultation with counsel; sanctions excluded evidence of Plaintiff?s 2008 copyright registration which was created with and relied upon evidence that had been destroyed

Nature of Case: Copyright Infringement

Electronic Data Involved: Hard copy documents, computer equipment and contents

Athome Care, Inc. v. The Evangelical Lutheran Good Samaritan Soc?y, No. 1:12-cv-053-BLW, 2013 WL 1819691 (D. Idaho Apr. 30, 2013)

Dec 01 2013

Key Insight: Court addressed Plaintiff?s motion to compel production of metadata and, noting that Defendant ?would have produced the requested metadata but for an inadvertent change to the creation date on certain documents,? indicated that the real question was ?how to resolve that mistake, which essentially requires the court to apply the Rule 26(b)(2)(C) balancing test;? court considered fact that Defendant ?created the problem? although not in bad faith (?accidents happen?) and further found that the burden of production was not ?all that great? and ordered the production of the requested metadata

Nature of Case: Breach of contract/licensing agreement

Electronic Data Involved: metadata

EPL Holdings, LLC v. Apple, Inc., No. C-12-04306 JST (JSC), 2013 WL 2181584 (N.D. Cal. May 20, 2013)

Dec 01 2013

Key Insight: Addressing parties? proposed departures from the court?s Model Protective Order, court approved protocol requiring Plaintiff?s reviewers to utilize an encrypted computer provided by Apple to conduct review of source code, including taking notes, and a ban on cell phones and other recording devices while reviewing source code (Apple promised to provide a land line); court declined to modify the Model Order?s provisions regarding printing source code, which place the burden of persuasion on the requesting party when a request for paper copies is challenged; court declined to include provision allowing Plaintiff to make electronic copies of source code and approved Defendant?s proposal requiring the parties to meet and confer regarding any electronic submission of source code; court approved provision requiring Plaintiff to return or destroy any documents containing source code at end of litigation

Nature of Case: patent infringement

Electronic Data Involved: source code

Catagory:Case Summaries