Case Summaries – Page 163 – Electronic Discovery Law

Momentive Specialty Chems., Inc. v. Alexander, No. 2:13-cv-275, 2013 WL 2151477 (S.D. Ohio May 16, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought to discover whether flash drives containing its sensitive information had been accessed by defendant since he started working for his new employer and also sought production of all relevant information contained on defendant?s laptop, the court indicated that Plaintiff?s expert would be allowed to image and search defendant?s laptop to determine if the flash drives had been accessed and to produce to Plaintiff any ?actual files? from those drives determined to be on defendant?s computer without first allowing defendant to conduct a review for relevance or privilege; as to other relevant documents found on the laptop which were not taken from the at-issue flash drives, the court ordered that any keyword hits be provided to defendant to review before production; to assuage concerns that relevant information would be withheld, court ordered defendant to prepare a log of any documents withheld on relevance grounds to allow the parties to have ?reasoned discussions? regarding those withholdings

Nature of Case: Breach of non-compete agreement, misappropriation of proprietary information

Electronic Data Involved: ESI

Little Hocking Water Assn., Inc. v. E.I. Du Pont De Nemours & Co., No. 2:09-cv-1081, 2013 WL 1196606 (S.D. Ohio)

Dec 01 2013

Key Insight: Where Defendant indicated that historical data was unavailable because it had been stored on magnetic tapes that could only be accessed with outdated technology that had been disassembled (VAX computer) and that the tapes had degraded and the information could not be retrieved, the court granted Plaintiff?s motion to compel discovery related to the ?failure to preserve or the destruction? of the at-issue data and ordered Defendant to produce a 30(b)(6) designee and to produce all relevant documents related to the ?preservation, failure to preserve and/or destruction? of the historical data and technology

Nature of Case: Groundwater contamination

Electronic Data Involved: Magnetic tapes, VAX computer

Jackson v. Target Corp., No. 12-12190, 2013 WL 3771354 (E.D. Mich. July 28, 2013)

Dec 01 2013

Key Insight: Where Defendant preserved a portion of the relevant surveillance video following Plaintiff?s fall but, upon being ordered to preserve substantially more, could not comply because the video had been automatically overwritten by that time and could not be recovered, the court declined to impose an adverse inference absent evidence of a culpable mindset

Nature of Case: Premises liability (slip and fall)

Electronic Data Involved: Surveillance video

Brown v. West Corp., No. 8:11CV284, 2013 WL 6263632 (D. Neb. Dec. 4, 2013)

Dec 01 2013

Key Insight: Court denied motion for spoliation sanctions related to automatic deletion of email backups where no email from the time of Plaintiff?s separation from the defendant existed on that system because of the passage of time and where the automatic deletions did not affect any emails saved on individual employees? computers – who had been instructed to preserve relevant information; court also declined to impose sanctions for the destruction of files on former employees? computers where Defendant claimed the computers contained no relevant information that had not already been produced and where the repurposing of the computers was apparently undertaken in good faith; upholding magistrate judge?s prior discovery orders, court noted the magistrate judge?s recognition that although some of the custodians from which plaintiff sought discovery may have relevant information, ?a few pointed questions in a deposition were less burdensome than grasping at the periphery by reviewing thousands or tens of thousands of e-mails in the hope of discovering a limited number of interactions that might, together, indicate something about whether discrimination played a role in the actions at the center of this case?

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, email, computer files of former employees

Mycone Dental Supply Co., Inc. v. Creative Nail Design, Inc., No. C-12-00747-RS (DMR), 2013 WL 478053 (N.D. Cal. Sep. 4, 2013)

Dec 01 2013

Key Insight: Court denied third party’s request for return of allegedly privileged letters between third party and its patent lawyer because third party did not promptly take reasonable steps to rectify the error when it sent a clawback letter 49 days after it discovered the disclosure of at least one of the disputed documents during a Rule 30(b)(6) deposition; court rejected third party?s excuses and stated that third party ?should have recalled the document that was used in the deposition immediately after the deposition and then conducted a more thorough and timely investigation into the rest of the production after the initial clawback request?

Nature of Case: Patent infringement

Electronic Data Involved: Nine attorney letters totaling approximately 58 pages

Ameritox, Ltd. v. Millennium Labs., Inc., No. 8:11-cv-00775-T-24 TBM, 2013 WL 5656064 (M.D. Tenn. Oct. 17, 2013)

Dec 01 2013

Key Insight: Court denied defendant’s motion to quash subpoena that sought documents, deposition transcripts and exhibits from third-party that related to defendant and that were produced by defendant in third-party’s now-settled litigation with defendant because defendant failed to comply with local rule requiring submission of a joint written statement of the matters at issue in the discovery dispute; court further noted there was nothing in the record that the target of the subpoena objected to producing the requested documents, and defendant cited no local or procedural rule which prohibited the plaintiff from subpoenaing the information from the third-party before or after plaintiff requested it from defendant

Nature of Case: Motion to quash subpoena issued by plaintiff in case pending in the Middle District of Florida, listing Nashville, Tenn. as the place of production

Electronic Data Involved: Documents, deposition transcripts and exhibits produced by defendant in other, now-settled litigation

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 SRN/SER, 2013 WL 6094600 (D. Minn. Nov. 20, 2013)

Dec 01 2013

Key Insight: District court affirmed in part magistrate judge?s order (at 2013 WL 5687559) denying plaintiff?s request for forensic examination of laptop computers used by plaintiff during her employment, as defendant produced 56,625 pages of documents from most recently used laptop, and burden and expense of forensic examination of previous laptop outweighed its likely benefit, given that plaintiff did not assert even a belief that relevant information existed on that computer that was not produced from other sources; court reversed in part magistrate judge?s order denying access to text and voice messages, finding that plaintiff demonstrated that ?the scale tips in her favor? in regard to two mobile phones provided by defendant to plaintiff and another witness for work-related purposes, and ordering parties to meet and confer upon protocol to be used in conducting search for responsive text messages and voice messages contained on the two devices

Nature of Case: Employment discrimination

Electronic Data Involved: Work laptops, and text messages and voice messages on certain mobile devices

Cotton v. Costco Wholesale Corp., No. 12-2731-JW, 2013 WL 3819974 (D. Kan. July 24, 2013)

Dec 01 2013

Key Insight: Addressing Plaintiff?s motion to compel, court declined to compel Defendant to search the email accounts of four Costco employees and to produce any messages containing any of sixty-four search terms where many of the terms were not ?racially charged? and some were duplicative and where, save two of the terms, Plaintiff had not alleged that the terms were ever used by any of Costco?s employees; court denied motion to compel production of text messages sent from certain of Costco?s employees? personal cell phones where the court reasoned that Costco had not issued the phones to the employees for a work purpose and did not have ?possession, custody or control? of the text messages

Nature of Case: Employment discrimination based on race

Electronic Data Involved: Emails, text messages on employees’ personal cell phones

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

Catagory:Case Summaries