Case Summaries – Page 181 – Electronic Discovery Law

White Baptist Mem?l Healthcare Corp., No. 08-2478, 2012 WL 3776918 (W.D. Tenn. Aug. 29, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motion seeking reversal of Clerk?s entry of bill of costs and specifically found that costs related to ?OCR capture? which the court acknowledged was a ?form of electronic discovery? were recoverable and that the OCR capture in this case was a necessary party of the discovery process

Nature of Case: Violation of FLSA

Electronic Data Involved: Costs related to electronic discovery

Clark Cnty. v Jacobs Facilities, Inc., No. 2:10-cv-00194-LRH-PAL, 2012 WL 4609427 (D. Nev. Oct. 1, 2012)

Dec 01 2012

Key Insight: Despite inadvertently producing (or discussing without objection) the at-issue document as many as times thirteen times, the court found that privilege was not waived where the parties stipulated that inadvertent production would not result in waiver and where the analysis under Fed R Evid 502 resulted in a finding that reasonable steps were taken to prevent disclosure, including key word searches for privileged documents, and that prompt steps were taken to secure the document?s return upon defendant learning of the inadvertent production; notably, it appeared that the document was not identified either because it was labeled ?client-attorney? rather than ?attorney-client?

Nature of Case: Alleged gross mismanagement of construction project result in significant costs to plaintiff

Electronic Data Involved: ESI

Haskins v. First Amer. Title Ins. Co., No. 10-5044 (RMB/JS), 2012 WL 5183908 (D.N.J. Oct. 18, 2012)

Dec 01 2012

Key Insight: Court found defendant had control over files in the possession of ?independent title agents? where contracts with those agents provided defendant the right to access those files; because ?control? was established for purposes of discovery, court ordered defendant to serve a litigation hold on present and former title agents with contracts similar to those examined by the court (which established control) who sold the at-issue title insurance within the relevant time frame

Nature of Case: Alleged scheme to overcharge for title insurance

Electronic Data Involved: ESI in possession of independent title agents

United States v. Briggs, No. 10-CR-184S, 2012 WL 5866574 (W.D.N.Y. Nov. 16, 2012)

Dec 01 2012

Key Insight: Court adopted lower court?s report and recommendation which denied defendant?s motion for sanctions related to the government?s discovery behaviors, including its production of ESI in searchable PDF but without the ability to manipulate the data, which defendant alleged failed to comply with the courts? prior order; court?s opinion, like prior opinions in this case, made clear the difficulties associated with a lack of controlling e-discovery case law/guidelines in criminal cases and put the Government ?on notice? that the Court would ?not hesitate to scrutinize the Government?s ESI discovery procedures to ensure responsiveness and fairness.?

Nature of Case: Criminal

Electronic Data Involved: Database, esi

Blount v. Tate, No. 7:11CV00091, 2012 WL 4341053 (W.D. Va. Aug 24, 2012)

Dec 01 2012

Key Insight: Addressing plaintiff?s allegations of spoliation for defendants? loss of potentially relevant video footage, court declined to impose sanctions because it could not find that defendants had the necessary culpable mind reasoning that 1) defendants? production of other relevant video footage of the same event and another, similar event, contradicted plaintiff?s claims that defendants feared the video would cause them to lose the lawsuit, 2) that ?digital information can be destroyed or hopelessly misplaced in a data base at the touch of a button, without warning or recourse, and the prison?s system for preserving footage included three transition points when a technician?s inadvertent error could have destroyed or misplaced the? relevant footage, and 3) that the footage of the incident involving the plaintiff was not the only footage lost, suggesting that ?the event causing that loss was not intended to harm [Plaintiff?s] case?

Nature of Case: Eight Amendment violations, excessive force

Electronic Data Involved: Camcorder footage

Country Vintner of North Carolina, LLC v. E&J Gallo Winery, Inc., No. 5:09-CV-326-BR, 2012 WL 3202677 (E.D.N.C. Aug. 3, 2012)

Dec 01 2012

Key Insight: Addressing Defendant?s efforts to recover costs related to ?technical, specialized services that were needed in order to ?collect, process, preserve, track, copy to digital format, and ultimately produce? the large amount of electronically stored information (?ESI?) that was utilized in the discovery process in this case,? the court adopted the Third Circuit?s reasoning in Race Tires America, Inc. v. Hoosier Racing Tire Corp and thus determined that ?a prevailing party may recover costs associated with copying or duplicating its files, but it may not receive reimbursement for any other ESI-related expenses?; in the present case the court found that ?the only tasks that involve copying are the conversion of native files to TIFF and PDF formats and the transfer of files onto CDs?

Nature of Case: Unfair and deceptive trade practices

Electronic Data Involved: ESI taxable costs

James v. Edwards, No. CL11-225, 2012 WL 9735714 (Va. Cir. Ct. July 24, 2012)

Dec 01 2012

Key Insight: Court granted in part motion to compel disclosure of the contents of Plaintiff?s Facebook account and ordered Plaintiff to provide his counsel with his username and password, which his counsel could then utilize to provide access to Plaintiff?s Facebook account to defense counsel; defendant was not allowed to be present during the review of his Facebook account; court imposed date range on relevant materials; court found Plaintiff?s expectation of privacy in his account ?misplaced? in light of Facebook?s privacy disclaimers which ?dispel any notion that information one chooses to share, even if only with one friend, will not be disclosed to anybody else?

Nature of Case: Personal injury

Electronic Data Involved: Facebook

Trail v. Lesko, NO. GD-10-017249, 2012 WL 2864004 (Pa. Com. Pl. July 5, 2012)

Dec 01 2012

Key Insight: Relying on PA Rule of Civil Procedure 4011(b) ?which bars discovery that would cause ?unreasonable annoyance, embarrassment, oppression …?? court denied cross motions to compel discovery of parties? social media content ?because the intrusions that such discovery would cause were not offset by any showing that the discovery would assist the requesting party in presenting its case?

Nature of Case: Motor vehicle accident

Electronic Data Involved: Social Media content (e.g., Facebook)

U.S. Bank Nat?l Assoc. v. Syncora Guarantee, Inc., 939 N.Y.S.2d 395 (N.Y. App. Div. Feb. 28, 2012)

Dec 01 2012

Key Insight: In this case, the court rejected defendant?s position that the requesting party should bear the costs of production and adopted the Zubulake standard which requires ?the producing party to bear the initial costs of searching for, retrieving and producing discovery, but permits the shifting of costs between parties? upon consideration of several factors.

Electronic Data Involved: ESI

Margolis v. Dial Corp., No. 12-CV-0288-JLS (WVG), 2012 WL 2588704 (S.D. Cal. July 3, 2012)

Dec 01 2012

Key Insight: Court denied Plaintiffs? request for a preservation order as to voicemail and instant messages where defendants had already sent litigation hold notices requiring preservation such that Plaintiffs? request was moot; Court further declined to enter preservation order as to backup tapes where defendants established that their preservation would impose a significant burden and that the contents were likely duplicative and where the court found that the backup tapes did not fall within the exception identified in Zubulake v UBS Warburg, 220 FRD 212 (S.D.N.Y. 2003).

Electronic Data Involved: Voicemail, instant messages, backup tapes

Catagory:Case Summaries