Case Summaries – Page 173 – Electronic Discovery Law

Beck v. Test Masters Educ. Servs., Inc., No. 04-1391(JDB), 2012 WL 10817176 (D.D.C. Sep. 25, 2012)

Dec 01 2012

Key Insight: Defendant?s lackluster effort to retrieve e-mail after hard drives crashed constituted a conscious disregard of its preservation obligations that could fairly be described as gross negligence or recklessness, and warranted sanctions in the form of an adverse inference instruction; court declined to impose sanctions for defendant?s failure to preserve telephone recordings since there was insufficient evidence that any relevant calls were actually recorded and should have been preserved

Nature of Case: Consumer Protection Procedures Act claims

Electronic Data Involved: E-mails and telephone call recordings

State Nat?l Ins. Co. v. Cnty. of Camden, No. 08-5128 (NLH)(AMD), 2012 WL 960431 (D.N.J. Mar. 21, 2012)

Dec 01 2012

Key Insight: Award of attorney?s fees for investigation into possibility of spoliation where defendant failed to institute a litigation hold was proper, even where no spoliation was established, because the ?non-breaching party still has suffered damages in the context of attorneys? fees and costs? as a result of the need to perform the investigation

Electronic Data Involved: ESI

S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3656454 (D.N.M. Aug. 9, 2012)

Dec 01 2012

Key Insight: Court addressed a myriad of discovery disputes related to privilege logs, format of production, adequacy of plaintiff?s search for responsive materials, and the adequacy of its responses to defendant?s requests and ruled, among other things, that: plaintiff?s production in PDF was unacceptable and that production must be in native format or in the format requested by defendant and that plaintiff?s counsel?s statements (related to the court by sworn affidavit from defendant) were sufficient to put the adequacy of his compliance with Rule 26(g) in question and require production of plaintiff?s search strategy, including its interaction with counsel; court also compelled responses to a myriad of individual requests and ordered plaintiff to pay 80% of defendant?s fees in bringing this motion

Electronic Data Involved: ESI

Robinson v. City of Arkansas, Kansas, No. 10-1431-JAR-GLR, 2012 WL 603576 (D. Kan. Feb. 24, 2012)

Dec 01 2012

Key Insight: Addressing the sufficiency of defendant?s search for responsive ESI, among other discovery disputes, court found that defendant failed to conduct a reasonable search and ordered additional searching as specified by the court and that defendant produce mirror images of the computers and external drives of a former supervisor for defendant that was particularly relevant to the litigation (the court called the failure to search his computers ?inexcusable and inexplicable?); court granted protective order precluding defendant?s expert from requirement to produce hardware (computers, etc.) already subject to production by defendant pursuant to court?s order where such duplication was unnecessary and would unnecessarily increase costs

Nature of Case: civil rights and employment law

Electronic Data Involved: ESI

Glazer v. Fireman?s Fund Ins. Co., No. 11 Civ. 4374(PGG)(FM), 2012 WL 1197167 (S.D.N.Y. Apr. 5, 2012)

Dec 01 2012

Key Insight: Where third-party provider of online psychic services represented that plaintiff would be able to access most of the information requested by defendant if she re-opened her account, the court ordered that plaintiff do so, and promptly produce all responsive information; as to information not available to plaintiff, court indicated that defendant may be provided opportunity to require plaintiff to provide authorization to third party to release such information

Nature of Case: Employment Discrimination

Electronic Data Involved: Records related to sessions with online psychic

In re M., No. 09-12-00179-CV, 2012 WL 1808236 (Tex. Ct. App. May 17, 2012)

Dec 01 2012

Key Insight: The appellate court held that the trial court had erred in admitting appellant?s cellular phone into evidence and in granting opposing counsels? oral motion for forensic examination of that phone where the phone was initially surrendered by appellant to allow for the reading of particular, relevant, messages and not requested by a formal discovery request as is required by law, where appellant had no opportunity to object to the scope of the production or to assert his privileges and where the rules of discovery require the least intrusive means of retrieval and direct access to devices is discouraged

Nature of Case: Child custody

Electronic Data Involved: Cellular phone and contents

Millennium TGA, Inc. v. Comcast Cable Commc?ns LLC, —F. Supp. 2d—, 2012 WL 2371426 (D.D.C. June 25, 2012)

Dec 01 2012

Key Insight: Where Plaintiff served a subpoena seeking identifying information related to one defendant and 350 ?co-conspirators? who plaintiff alleged engaged in a conspiracy to unlawfully download Plaintiff?s movie (using the BitTorrent protocol) and Comcast objected on the grounds of undue burden, among other things, the D.C. Court (the court from which the subpoena was issued) treated Comcast?s objections as a motion to quash and found that the burden of issuing the subpoena would result in undue burden to Comcast, to the defendant and to the 350 ?co-conspirators? who did not reside in the forum because they would be subjected to undue inconvenience of litigating any objections in a ?distant forum? and denied Plaintiff?s request but, recognizing Plaintiff?s efforts and interest in litigating the case, ordered Comcast to provide information related to alleged co-conspirators city and state of residence, but not identifying information, which Comcast could do without undue burden and which would allow plaintiff to seek the identifying information of the alleged co-conspirators in the jurisdiction in which they lived

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information related to ISP subscribers

Anthony v. Atlantic Group, Inc., Nos. 8:09-cv-0283-JMC, 8:09-cv-02942-JMC, 2012 WL 4009490 (D.S.C. Sept. 12, 2012)

Dec 01 2012

Key Insight: Court granted motion to compel ?electronically stored information, electronic mail, and social networking data? related to the issues raised in this case and, noting plaintiffs ?direct access? to the information requested, declined to require defendant to seek the information from the relevant service providers

Nature of Case: Employment litigation

Electronic Data Involved: Email, Social media content

El Camino Resources, Ltd. v. Huntington Nat?l Bank, No. 1:07-cv-598, 2012 WL 4808741 (W.D. Mich. May 3, 2012)

Dec 01 2012

Key Insight: Magistrate Judge recommended the adoption of the approach of the Third Circuit in Race Tires Am. Inc. v. Hoosier Racing Tire Corp., which limits the recoverable costs related to electronic discovery pursuant to 28 U.S.C. ? 1920 and thus granted in part plaintiffs? motion to disallow costs

Nature of Case: Business tort claims

Electronic Data Involved: Taxable costs related to production of ESI

Mahaffey v. Marriot Int?l, Inc., —F. Supp. 2d —, 2012 WL 4833370 (D.D.C. Oct. 11, 2012)

Dec 01 2012

Key Insight: Court denied motion for sanctions for defendant?s alleged destruction of video tape and hard copy where, as to the video tape, the court determined that defendant ?could not reasonably have known? that it had an obligation to preserve the at-issue video at the time it was destroyed, and that no sanctions were therefore merited and where, as to the hard copy documents, the plaintiff was unable to establish that the at-issue documents actually existed or that, if they did, they were destroyed with the requisite culpable state of mind (where the alleged spoliation resulted from a broken sprinkler which flooded a storage room), and where even if defendant had been negligent, plaintiff could not establish that the allegedly destroyed evidence was relevant to his claims

Nature of Case: Personal injury arising from alleged elevator accident

Electronic Data Involved: Video, hard copy

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