Case Summaries – Page 181 – Electronic Discovery Law

Excel Gold Products, Inc. v. MacNeill Eng?g Co., Inc., No. 11 C 1928, 2012 WL 1570772 (May 3, 2012)

Dec 01 2012

Key Insight: Despite finding that plaintiff had not produced sufficient information regarding its review procedures to establish that reasonable steps were taken to prevent inadvertent disclosure of privileged information, the court found that concerns of ?overriding fairness? precluded waiver where plaintiff had attempted to enter into a clawback agreement and where defense counsel?s rejection of such an agreement (because there was a protective order) could ?readily? have been interpreted to mean that inadvertently produced materials would be returned without dispute; plaintiff was ordered to conduct privilege review of documents produced, to the extent not already done

Electronic Data Involved: Inadvertently produced ESI

In re Specs, No. C 10-04250 YGR (DMR), 2012 WL 4120246 (N.D. Cal. Sept. 18, 2012)

Dec 01 2012

Key Insight: Court ordered sanctions for Plaintiffs? violation of a court order compelling production where Plaintiffs certified their production was complete and thereafter made at least four additional significant productions such that the court concluded that Plaintiffs? certification of completeness was either ?knowingly false, or ? made without confirming the adequacy of their collection and production efforts? and ordered payment of reasonable expenses including attorneys fees and that Plaintiffs file certification that their discovery is complete and that any documents produced thereafter could not be used by Plaintiff at trial

Electronic Data Involved: ESI

Lechase Constr. Servs. LLC v. Info. Advantage, Inc., NO. 2011/7765, 2012 WL 12294457 (N.Y. Sup. Ct. Oct. 4, 2012)

Dec 01 2012

Key Insight: Court granted Plaintiff?s request for an order approving the use of key words to locate responsive documents and instructed that if Plaintiff and/or its counsel was capable of searching both email and attachments, they may proceed with ?self-collection? but that if they could not, a vendor would be required to run the searches; court encouraged cooperation in determining keywords to be utilized

Electronic Data Involved: ESI

Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387(E.D. Mich. 2012)

Dec 01 2012

Key Insight: Court denied defendant?s motion to compel plaintiff to authorize access to her Facebook account where defendant did not have the ?generalized right to rummage at will through information that Plaintiff has limited from public view? absent a threshold showing that the requested information is reasonably calculated to the lead to the discovery of admissible evidence and where defendant failed to make that showing (court noted, for example, that the pictures available for public viewing on plaintiff?s account did not show activity inconsistent with plaintiff?s claims of injury)

Nature of Case: Slip and fall

Electronic Data Involved: Facebook contents

Pouncil v. Branch Law Firm, No. 10-1314-JTM-DJW, 2012 WL 777500 (D. Kan. Mar. 7, 2012)

Dec 01 2012

Key Insight: Where evidence indicated that defendant?s responses to discovery were incomplete, court ordered defendant to ?proceed with the forensic search of their computer systems using protocols agreed upon by the parties? but declined to compel defendant to bear the cost of the examination until final costs were known; defendant was also ordered to institute a litigation hold where defendant?s deposition testimony established that none had previously been issued

Nature of Case: Malpractice

Electronic Data Involved: ESI

Moore v. Kingsbrook Jewish Med. Ctr., No. 11-CV-3552 (KAM)(JO), 11-CV-3624 (KAM)(JO), 2012 WL 1078000 (E.D.N.Y. Mar. 30, 2012)

Dec 01 2012

Key Insight: District Court denied defendant?s objections to Magistrate Judge?s ruling denying request for forensic examination of plaintiffs? computers where plaintiffs each verified that they had conducted a search of all email accounts and produced all responsive emails and where both plaintiffs were told by their ISP that no further emails could be retrieved; court reasoned that there was no reason to discredit plaintiffs? representations and found that forensic examinations would be overly broad, intrusive, expensive, and would likely reveal irrelevant material

Nature of Case: Employment discrimination

Electronic Data Involved: Forensic examination of computers and email accounts

United States v. Walker, No. 3:06-CV-16 (CDL), 2012 WL 1672992 (M.D. Ga. May 14, 2012)

Dec 01 2012

Key Insight: Addressing recovery of costs, court indicated applicability of 28 U.S.C. ? 1919 ?which allows recovery of ?just costs??because the case had been dismissed for lack of subject matter jurisdiction, but noted that 28 U.S.C. ? 1920 could provide assistance in determining what costs are ?just? and approved costs for copying, including through scanning and Optical Character Recognition, but declined to approve costs related to ?processing? the documents so that defendants? counsel could review them in electronic form

Nature of Case: False Claims Act

Electronic Data Involved: Costs related to Electronic Discovery

Domanus v. Lewicki, No. 08 C 4922, 2012 WL 2072866 (N.D. Ill. June 8, 2012)

Dec 01 2012

Key Insight: Where defendants indicated that a relevant hard drive had crashed and been disposed of but that some relevant information had been recovered and where plaintiff was unable to establish that defendants acted in bad faith, court found defendants were grossly negligent in their failure to preserve the relevant hard drive which resulted in prejudice to the plaintiff and ordered a ?spoliation charge? allowing but not requiring the jury to determine whether the spoliation warranted an adverse inference; opinion includes comprehensive discussion of relevant law and standards surrounding spoliation

Nature of Case: Racketeering and fraud

Electronic Data Involved: Hard drive

Adkins v. Wolever, —F.3d—, 2012 WL 3711433 (6th Cir. Aug. 29, 2012)

Dec 01 2012

Key Insight: Where District Court held that because defendant, a prison guard, did not have control over the preservation of relevant surveillance footage there was no basis to establish his culpability for its loss and thus spoliation sanctions were not warranted, the appellate court acknowledged that other circuits had imposed sanctions for a prison?s loss of relevant footage but determined the case law did not require a finding of negligence for such loss and that, even if the appellate court were to disagree with the District Court?s determination, the conclusion was not ?clearly erroneous?; court spoke to concerns that this would provide carte blanche for prisons? destruction of such footage, but found that imposing a burden upon individual defendant?s to ensure that their employer (the prison) was preserving evidentiary records for every incident with a prisoner was not appropriate

Nature of Case: Action brought by prisoner for injury allegedly inflicted by prison guard

Electronic Data Involved: Surveillance footage

Kregg v Maldonado, —N.Y.S.2d—, 2012 WL 4469935 (N.Y. App. Div. Sept. 28, 2012)

Dec 01 2012

Key Insight: Where lower court granted defendants? motion to compel the ?entire contents? of plaintiff?s social media accounts, appellate court found the ruling was in error where there was no contention that the contents contradicted plaintiff?s claims and where the appellate court determined the ?proper means? to obtain disclosure of relevant information was a ?narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident?

Nature of Case: Claims related to injuries from motorcycle accident

Electronic Data Involved: Social media accounts

Catagory:Case Summaries