Case Summaries – Page 161 – Electronic Discovery Law

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

Keller v. Nat?l Farmers Union Prop. & Cas. Co., No. CV 12-72-m-DLC-JCL, 2013 WL 27731 (D. Mont. Jan. 2, 2013)

Dec 01 2013

Key Insight: Court denied defendant?s motion to compel plaintiffs? production of printouts of all social media content where the court recognized that discovery of social network content has been allowed by other courts upon a showing that publically available information on those sites undermines the plaintiff?s claims and where no such showing was made in the present case

Nature of Case: Breach of insurance contract

Electronic Data Involved: Social Network Information: Facebook, MySpace, Twitter, etc.

Doe v. City of San Diego, No. 12-cv-0689-MMA (DHB), 2013 WL 2338713 (S.D. Cal. May 28, 2013)

Dec 01 2013

Key Insight: Court found plaintiff had standing to challenge city?s subpoena to Verizon Wireless seeking ?any and all records? for Plaintiff?s cellular phone, including texts, instant messages, etc. and found that Verizon was prohibited from disclosing such content by the Federal Stored Communications Act; Verizon was also prohibited from disclosing non-content records where such disclosure to a ?governmental agency? is prohibited; court noted that alternative methods for discovery were available and specifically noted the availability of a Rule 34 request for production

Nature of Case: Claims arising from sexual assault

Electronic Data Involved: Cellular phone records, including content

Atlas Resources, Inc. v. Liberty Mut. Ins. Co., No. CIV 09-1113 WJ/KBM, 2013 WL 1277878 (D.N.M. Mar. 28, 2013)

Dec 01 2013

Key Insight: Addressing Plaintiff?s fourth and fifth motions for sanctions resulting from the delayed production of relevant ESI for reasons ranging from alleged computer glitches to prior counsel?s failure to turn over highly relevant emails?and current counsel?s failure to timely discovery that those emails had previously been withheld?the court acknowledged current counsel?s efforts to rectify prior discovery abuses (addressed in prior sanctions motions) but nonetheless found that severe sanctions were warranted, including that defendant?s non-equitable counterclaims be stricken, that defendant pay the reasonable costs associated with the filing of the fourth and fifth motions for sanctions, that defendant or its counsel bear the cost of re-depositions (which they had previously offered to do), and that defendant pay a portion of the costs for plaintiff?s experts to supplement their reports

Nature of Case: Claims arising from contract for providing worker?s compensation insurance and claims administration

Electronic Data Involved: Misc. ESI

Hixson v. City of Las Vegas, No. 2:12-cv-00871-RCJ-PAL, 2013 WL 3677203 (D. Nev. July 11, 2013)

Dec 01 2013

Key Insight: No sanctions for Defendant?s failure to produce a particular relevant email where the email was subject to Defendant?s automatic deletion policy and where the court ?was satisfied? that the email was in fact automatically deleted before Defendant was on notice that litigation was reasonably foreseeable

Nature of Case: Hostile Work Environment

Electronic Data Involved: Email subject to automatic deletion policy

In re Heinz, 501 B.R. 746 (Bankr. N.D. Ala. 2013)

Dec 01 2013

Key Insight: Although court found that evidence compelled conclusion that debtor?s spoliation of electronic evidence, failure to preserve both ESI as well backup paper documentation, and failure to produce thumb drive was willful and intentional given the timing during imminent or ongoing litigation, court declined to impose a specific sanction against the debtor such as a default judgment and instead drew an adverse inference against debtor to the extent it impacted the debtor?s overall credibility; court ultimately found that plaintiffs? claim against the debtor for $39,296, stemming from judgment obtained by plaintiffs against debtor for breach of contract, was not dischargeable

Nature of Case: Complaint to determine dischargeability

Electronic Data Involved: Thumb drive containing financial information from 2009 through 2011

Process Am., Inc. v. Cynergy Holdings, LLC, No. 12 Civ. 772(BMC), 2013 WL 9447569 (E.D.N.Y. Sep. 23, 2013)

Dec 01 2013

Key Insight: Where plaintiff did not institute a written litigation hold despite its duty to preserve having arisen when it threatened to sue defendants, and, instead of producing the original of a particular thumb drive as ordered by the court, plaintiff copied contents of original thumb drive onto another (used) thumb drive and then deleted irrelevant files from thumb drive before producing drive to defendant, court found plaintiff was merely negligent and did not act in bad faith or with an intention of destroying or withholding relevant evidence; court declined to impose terminating sanctions or an adverse inference instruction given that defendant did not demonstrate severe prejudice, but ordered plaintiff to reimburse defendant for one-half of its costs, including attorneys? fees and expert costs, that it incurred in connection with litigating the spoliation issue

Nature of Case: Lawsuit arising out of the collapse of a commercial relationship between the parties relating to credit card processing services

Electronic Data Involved: Thumb drive, email, spreadsheets

Catagory:Case Summaries