Case Summaries – Page 167 – Electronic Discovery Law

Hart v. Dillon Cos., Inc., No. 12-CV-00238-RM-DW, 2013 WL 3442555 (D. Colo. July 9, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought sanctions for former employer?s spoliation of a tape containing a secretly recorded conversation ?which in part? led to Plaintiff?s termination, the court found that the tape was relevant, that Defendant had an obligation to preserve it (citing the fact that ?it knew that litigation was imminent? and a federal statute requiring the preservation of employment records concerning a terminated employee for 1 year from the date of termination), and that Plaintiff was prejudiced by the spoliation; in concluding that sanctions were warranted, court noted Defendant?s four month delay in issuing a litigation hold and indicated that ?[a]fter the duty to preserve attaches, the failure to collect taped recording from a key player is grossly negligent or willful?; what specific sanction would be imposed was not determined

Nature of Case: Employment Discrimination

Electronic Data Involved: Tape of secretly recorded conversation

Heitzman v. Engelstad, No. 12-cv-2274 (MJD/LIB), 2013 WL 4519403 (D. Minn. July 11, 2013)

Dec 01 2013

Key Insight: Court quashed subpoena seeking the production of documents reasoning that Plaintiff failed to demonstrate that she could not ?otherwise obtain access to the documents requested,? and further reasoned that ?even if the documents sought might be relevant? (which was questionable), the subpoena was unduly burdensome because it sought documents and correspondence going back 7 years, when the incident at issue occurred 11 months ago, and because it commanded production of ?all? such documents and made ?no allowance? for materials protected by privilege. In quashing the subpoena, the court also noted the availability of many of the public documents sought from the state court record.

Nature of Case: False arrest and related claims

Electronic Data Involved: Non-party’s documents and emails

Avoid “Discovery About Discovery” with Cooperation

Nov 22 2013

Ruiz-Bueno, III v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013)

In this case, Plaintiffs moved to compel answers to their questions about Defendants’ efforts to respond to Plaintiffs’ discovery requests, including what procedures were undertaken to search for responsive electronically stored information. Defendants objected, arguing that such information was not within the scope of discovery. Following its discussion of whether “discovery about discovery [is] ever permissible” (it is), the court turned to the circumstances of this case and ordered Defendants to respond. In its analysis, the court spent significant time extolling the virtues of cooperation.

Criminal Defendant Entitled to Production of Metadata Related to Police Report

Nov 15 2013

United States v. Tutt, No. 13-cr-20396, 2013 WL 5707791 (E.D. Mich. Oct. 21, 2013)

In this case, the court granted in part Defendant’s Motion for Issuance of a Subpoena Duces Tecum seeking production of the arresting officers’ personnel files and disciplinary records as well as the metadata associated with an arresting officer’s police report. Defendant sought to examine the metadata to confirm the alleged time that the report was written in light of the officer’s claim that he overheard the defendant making incriminating statements to the suspect in the adjoining cell while the officer “simultaneously” drafted his report and memorialized those alleged comments. Defendant denied ever making the statements.

Court Orders Imaging to Ensure Preservation of Self-Proclaimed Hacker’s ESI

Nov 07 2013

Battelle Energy Alliance, LLC v. Southfork Sec., Inc., No. 4:13-cv-00442-BLW, 2013 WL 5637747 (D. Idaho Oct. 15, 2013); Battelle Energy Alliance, LLC v. Southfork Sec., Inc., — F. Supp. 2d —, 2013 WL 5818559 (D. Idaho Oct. 29, 2013)

Plaintiff sought an ex parte temporary restraining order requiring Defendants to disable their website and remove information related to allegedly infringing software and also sought to create a forensic image of one defendant’s hard drive(s) to ensure preservation. The court granted Plaintiff’s application, relying in part on Defendants’ self-identification as hackers. Upon learning the at-issue source code had already been released, however, the court denied Plaintiff’s motion for a preliminary injunction and partially dissolved the TRO, but continued to retain images of the hard drives.

No Sanctions for Spoliation of Emails in Former Officers’ Personal Accounts Absent Evidence of Bad Faith or Prejudice

Oct 31 2013

Puerto Rico Tel. Co., Inc. v. San Juan Cable, LLC, No. 11-2135 (GAG/BJM), 2013 WL 5533711 (D.P.R. Oct. 7, 2013)

Plaintiff alleged that the defendant failed to preserve relevant emails from the personal accounts of three former officers (the CEO, General Manager, and Senior Vice President) and sought an adverse inference instruction. While the court agreed that Defendant’s failure to locate certain emails was a breach of the duty to preserve and constituted spoliation, no sanctions were imposed absent evidence of bad faith or a demonstration of prejudice.

Court Concludes that “at least in the Seventh Circuit,” the Duty to Preserve is Triggered “when a litigant knew or should have known that litigation was imminent” as Opposed to “Reasonably Foreseeable”

Oct 18 2013

In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2013 WL 5377164 (S.D. Ill. Sept. 25, 2013)

In this case, the court found that the duty to preserve arose after the at-issue information was destroyed in accordance with Defendant’s document retention policies and that an adverse inference was not warranted. Considering the proper standard to employ when assessing when the duty to preserve is triggered, the court concluded that “the duty to preserve is triggered only when a litigant knew or should have known that litigation was imminent (at least in the Seventh Circuit).”

E.D. Michigan Approves Model Order Relating to the Discovery of Electronically Stored Information & a Meet and Confer Checklist for Pilot Use

Sep 27 2013

The judges of the United States District Court for the Eastern District of Michigan have announced the approval, “on a pilot period basis,” of a Model Order Relating to the Discovery of Electronically Stored Information and a Rule 26(f) meet and confer checklist. “It is within the judicial officer’s discretion whether these materials may be used.”

The Model Order sets forth a series of principles which address a myriad of issues including cooperation, proportionality, the duty to meet and confer, preservation, the identification of electronically stored information (ESI) and format of production, among others. The checklist sets forth a series of potential topics to be discussed at the parties’ meet and confer.

Court Declines to Compel Response to “Ultra-Broad” Request for Passwords and User Names or Allow “Exhaustive Forensic Examination” of Computers

Sep 20 2013

NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515, 2013 WL 3974535 (E.D. La. Aug. 2, 2013)

In this trademark infringement case, Defendant sought to compel Plaintiff and its principal (a third-party defendant) to produce “passwords and user names to all online web sites related to the issues in this litigation” and to compel Plaintiff and its principal to “submit their computers to an exhaustive forensic examination.” Because the request for passwords and user names was “ultra-broad” and would allow Defendant to “roam freely through all manner of personal and financial data” and because Defendant “failed sufficiently to justify the broad forensic computer examination it request[ed],” the court denied the motion.

Magistrate Judge Declines to Presume Prejudice, Recommends Denial of Motion for Sanctions

Sep 13 2013

Herrmann v. Rain Link, Inc., No. 11-1123-RDR, 2013 WL 4028759 (D. Kan. Aug. 7, 2013)

Plaintiff sought sanctions for Defendants’ allegedly intentional spoliation of evidence and argued that prejudice could be presumed. The Magistrate Judge declined to do so and also found that Defendants’ spoliation was merely negligent. Thus, absent a showing of actual prejudice, the Magistrate Judge recommended that Plaintiff’s motion be denied.

Catagory:Case Summaries