Case Summaries – Page 159 – Electronic Discovery Law

Lutalo v. Nat?l R.R. Passenger Corp., No. 11-cv-00974-REB-KLM, 2013 WL 1294125 (D. Colo. Mar. 28, 2013)

Dec 01 2013

Key Insight: In a case arising from a train passenger?s complaints regarding Plaintiff?s telephone conversation which the passenger found threatening and which resulted in Plaintiff?s arrest, the court found that the plaintiff had a duty to preserve the relevant cellular phone and that Defendants were prejudiced by its loss but declined to impose an adverse inference instruction for merely negligent spoliation (inadvertent loss) and instead barred Plaintiff from introducing evidence related to who he was talking to or what was said and allowed Defendants to present evidence regarding Plaintiff?s failure to preserve and argue ?whatever inference they hope the jury will draw?

Nature of Case: Claims arising from arrest where charges were later dismissed

Electronic Data Involved: Cellular phone

Yoder & Frey Auctioneers, Inc. v. Eqiupmentfacts LLC, No. 3:10 CV 1590, 2013 WL 1411757 (N.D. Ohio Apr. 8, 2013)

Dec 01 2013

Key Insight: Court declined to impose spoliation sanctions for alleged failure to preserve ?the actual server and software system? allegedly utilized during the violation of the Computer Fraud and Abuse Act where the defendant did not establish the relevance of the server or software system

Nature of Case: Computer Fraud and Abuse Act

Electronic Data Involved: Server and software system utilized by auction company at time of alleged violation by Defendant

In re Denture Care Prods. Liab. Litig., 292 F.R.D. 120 (D.D.C. 2013)

Dec 01 2013

Key Insight: Court found information sought in third party subpoena was relevant, that production of documents with missing pages or emails without their attachments did not comply with Rule 45, that subpoena was not unduly burdensome, and that forensic investigation of third party?s computers was not yet warranted in spite of ?discrepancies and inconsistencies? in their production, but warned that third party could be required to bear the cost of forensic investigation of their computers if they failed to comply with court?s order to produce all responsive documents

Nature of Case: Products Liability

Electronic Data Involved: ESI

In re Christus Health S.E. Texas, 399 S.W.3d 343 (Tex. Ct. App. 2013)

Dec 01 2013

Key Insight: Denial of motion to compel documents reflecting deceased patient?s children?s purchases and calls on the day the patient underwent his at-issue procedure was no abuse of discretion where the request for production was not sufficiently limited in time and was therefore overly broad; request for all posting to social media regarding the patient or his death was also not limited in time and thus ?overly broad on its face? and trial court did not abuse discretion in denying the motion to compel

Nature of Case: Health care liability

Electronic Data Involved: Documents reflecting purchases and calls on a particular day; Facebook/social media postings

Soffer v. Five Mile Capital Partners, LLC, No. 2:12-cv-01407-JAD-GWF, 2013 WL 4499011 (D. Nev. Aug. 19, 2013)

Dec 01 2013

Key Insight: Court indicated that dispute over whether to compel Defendants to conduct additional searches in an expanded date range turned on Rule 26(b)(2)(C)(iii) and the question of whether the burden outweighed the likely benefit but, citing Plaintiff?s prior offer to more narrowly tailor the search terms to be utilized and to contribute to the reasonable costs of Defendants? review, ordered the parties to meet to attempt to reach agreement on a more focused search and to negotiate a reasonable cost sharing agreement and indicated that the court would consider shifting ?an appropriate share of the costs of production? once a determination of the cost was made

Nature of Case: Interference with a contract and prospective economic advantage, fraud, breach of fiduciary duty

Electronic Data Involved: ESI

Franco-Gonzalez v. Holder, No. CV 10-2211-DMG (DTBx), 2014 WL 8116823 (C.D. Cal. May 3, 2013)

Dec 01 2013

Key Insight: Court partly granted plaintiffs? motion to compel, requiring government: (1) to re-produce all documents it had produced in a “locked” password-protected file either as they were kept in the ordinary course or organized and labeled to correspond to document requests, (2) as to other documents government had previously re-produced, to provide an index identifying, by date of production and bates number, which documents each reproduction was meant to replace, and whether any documents were new, and (3) as to documents from which government had redacted on the basis of non-responsiveness and not on the basis of any privilege, to produce unredacted versions of such documents

Nature of Case: Class action concerning government’s detention and removal of immigrants with mental issues

Electronic Data Involved: Various documents related to over 200 detainees, includingi A-file, medical documents, records of proceedings and database information

Sprint Nextel Corp. v. Middle Man, Inc., N. 12-2159-JTM, 2013 WL 1001851 (D. Kan. Mar. 13, 2013)

Dec 01 2013

Key Insight: Court was satisfied that defendants were aware of their legal duty to preserve evidence and noted that defendants had stated they had a diligent electronic record-keeping practice to track the company’s sales, purchases and inventory, and that the company would consent to an on-site physical inspection of its inventory; court was not persuaded that preservation order was appropriate or that it would serve any useful purpose in light of the parties’ existing legal obligations to preserve relevant evidence

Nature of Case: Trademark infringement, unlawful business practices

Electronic Data Involved: Sprint phones, ESI

Mejia v. Charette, No. 12-cv-449-JD-LM, 2013 WL 6001081 (D.R.I. Nov. 12, 2013)

Dec 01 2013

Key Insight: In the interest of judicial economy and efficiency, Court deferred ruling on plaintiff?s motion to compel to the extent it sought records from Wyatt Detention Facility (a third party), and directed defense counsel to request from the WDF the records plaintiff sought and to report on the status of such request at the next pretrial conference; court further denied defendants? request to limit their obligation to preserve and produce ESI so that they need not maintain that information beyond the regularly scheduled deletion, purge or overwriting date unless they have actual knowledge that responsive information actually is contained in the system or unless opposing party specifically requests it in writing, and to exclude backup tapes from litigation hold, as defendants did not provide any reason why their obligation to preserve all relevant ESI, including backup tapes or disks, should be voided, or why they should be excused from a party?s general duty to preserve relevant evidence once on notice of litigation

Nature of Case: Inmate at Wyatt Detention Facility asserted escessive force claims against four U.S. Marshals

Electronic Data Involved: ESI

W. Penn. Elec. Employees Pension Fund v. Alter, No. 2:09-cv-04730-CMR, 2013 WL 4803564 (E.D. Pa. June 26, 2013), approved and adopted in substantial part, 2013 WL 4799061 (E.D. Pa. Sep. 6, 2013)

Dec 01 2013

Key Insight: In this Report and Amended Recommended Order, Special Discovery Master agreed with plaintiffs that they should have the opportunity to confirm, though inspection by neutral e-discovery vendor already retained by parties, defense counsel?s representations as to contents of individual defendant?s belatedly-disclosed hard drive, because without the requested examination, there was no way to know if, in fact, hard drive contents were duplicative of data already produced by another party as the individual defendant claimed; Special Master found request was not unreasonable given the centrality of the defendant in events giving rise to the lawsuit, the unsubstantiated nature of defense counsel?s claim that the data was duplicative, that the defendant had provided only limited discovery to plaintiffs, that the defendant, through his counsel, had previously denied possession of any responsive data when the hard drive had been in his home and responsive documents were on his personal computer, much time and money had been expended in the effort to obtain the documents from other sources, and plaintiffs should not be expected to accept without question the claim that the defendant ?simply forgot? he had received company documents prior to his departure; district court subsequently adopted recommendation but modified deadlines and division of costs

Nature of Case: Securities class action

Electronic Data Involved: Material on hard drive belatedly disclosed by individual defendant

United States v. Dish Network, LLC, No. 09-3073, 2013 WL 1749930 (C.D. Ill. Apr. 24, 2013)

Dec 01 2013

Key Insight: Court imposed sanctions for several discovery violations: 1) for failing to provide Plaintiffs with information regarding its process for scrubbing calling lists against the do not call list and for providing a deponent with insufficient knowledge of the issue, court characterized defendant?s behavior as ?obstructive, contumacious, and willful? and precluded the use of evidence about the creation and scrubbing of telemarketing campaign lists; 2) for failing to preserve ESI related to a particular calling campaign despite a duty to preserve, court issue finding of fact that the campaign was conducted for commercial purposes; 3) for obstructive behavior related to whether it shared lead lists to retailers, including inaccurate statements and for failing to preserve information related to the same, court imposed adverse inference

Electronic Data Involved: ESI

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