Case Summaries – Page 187 – Electronic Discovery Law

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

ADT Secs. Servs. Inc. v. Pinnacle Sec. LLC, No. 10 C 7467, 2012 WL 7170633 (N.D. Ill. May 11, 2012)

Dec 01 2012

Key Insight: Where defendant argued that its failure to issue a specific litigation hold was mitigated by prior imposition of a no-delete policy which would have prevented any loss of evidence, the court determined it needed additional information on the scope of the policy and ordered defendant to provide information to determine if the scope of the policy was sufficiently broad and how it was communicated to employees; where defendant acknowledged that it did not search certain individual computers because all files created were to be saved in the ?My Documents? folder which was saved to a network server, the court noted the lack of assurance that employees followed the default settings and that they did not save ESI in folders outside of ?My Documents? and thus ordered a search of particular employees? computers using Plaintiff?s key word search terms

Electronic Data Involved: ESI

Cannata v. Wyndham Worldwide Corp., No. 2:10-cv-00068-PMP-VCF, 2012 WL 528224 (D. Nev. Feb. 17, 2012)

Dec 01 2012

Key Insight: Where parties could not agree on search protocol, including the number of custodians and number of search terms and whether ?terms of a sexual nature? should be included as search terms, the court appointed a special master to resolve the dispute, split the costs of the special master (unevenly) between the parties, and ordered that if the number of terms and custodians combined exceeded 40, plaintiff would reimburse 5% of defendant?s e-Discovery compliance costs for each occurrence (e.g., if the final search involved 22 custodians and 25 sites, plaintiffs would be responsible for 25% of defendants? cost [7 x 5%]); because sexual harassment related claims were at issue, ?ESI containing sexual terms is discoverable?

Nature of Case: Sexual harassment, sexual discrimination, hostile work environment

Electronic Data Involved: ESI

Frye v. Baptist Mem?l Hosp., No. 07-2708, 2012 WL 1022034 (W.D. Tenn. Mar. 26, 2012)

Dec 01 2012

Key Insight: District Court approved recovery of costs related to ?OCR Capture?

Nature of Case: Taxable costs

Electronic Data Involved: OCR

Brooks v. Ohio State Chiropractic Board, No. 2:12-cv-225, 2012 WL 1429386 (S.D. Ohio Apr. 25, 2012)

Dec 01 2012

Key Insight: Where plaintiff failed to establish the likelihood of his success on the merits or that he would suffer immediate irreparable harm absent injunctive relief, the court denied plaintiff?s motion for a temporary restraining order and/or preliminary injunction; as to the likelihood of irreparable harm, the court?s analysis focused in part on other mechanisms to ensure preservation, including a specific demand for preservation which the plaintiff had already utilized and the threat of sanctions for failure to preserve

Nature of Case: Claims arising from plaintiff’s placement on administrative leave and defendant’s seizure of his property

Electronic Data Involved: ESI

Rogers v. Oregon Trail Elec. Consumers Coop., Inc., No. 3:10-CV-1337-AC, 2012 WL 1635127 (D. Or. May 8, 2012)

Dec 01 2012

Key Insight: Court adopted five part test to determine admissibility of emails under business records exception to hearsay and ruled that the emails at issue were not admissible

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Dalcour v. City of Lakewood, No. 11-1117, 2012 WL 3156342 (10th Cir. Aug. 6, 2012)

Dec 01 2012

Key Insight: Reviewing for abuse of discretion circuit court affirmed lower court?s denial of motion for an adverse inference based on loss of TASER records where the evidence indicated the loss resulted from a computer error or possibly negligence and where absent evidence of bad faith, no adverse inference was appropriate; court also recognized that allowing plaintiffs to question witnesses about the missing evidence amounted to a lesser sanction for spoliation

Nature of Case: ? 1983 claims

Electronic Data Involved: TASER records

Catagory:Case Summaries