Case Summaries – Page 187 – Electronic Discovery Law

Lakes Gas Co. v. Clark Oil Trading Co., 875 F. Supp. 2d 1289 (D. Kan. June 21, 2012)

Dec 01 2012

Key Insight: In a brief discussion of spoliation, the court denied defendant?s motion for sanctions where, despite the fact that it ?seemed clear that there was some loss of evidence ? in the form of email and/or ?instant messages? ? at a time [Plaintiff] knew litigation was imminent,? the evidence suggested that the loss was inadvertent, there was no claim of bad faith or evidence to support such a finding, defendant?s claims of prejudice were largely speculative and defendant did not aggressively pursue the issue of spoliation; court?s analysis stated that ?in these circumstances? (referencing apparent inadvertence of the loss and lack of a claim of bad faith), ?the court looks to the culpability of those involved and the relevance of the proof to the issues at hand?

Nature of Case: Action to recover payment for propane transfers based on conversion and unjust enrichment theories

Electronic Data Involved: Email and/or instant messages

United States v. Hamilton, 701 F.3d 404 (4th Cir. 2012)

Dec 01 2012

Key Insight: Use of work email waived marital privileged where, despite the lack of a computer usage policy at the time the emails were sent, the policy in effect at the time of the investigation stated that there was no expectation of privacy as to emails sent, received, accessed or STORED on the system and where the defendant ?did not take any steps to protect the emails in question, even after he was on notice of his employer?s policy permitting inspection of emails stored on the system at the employer?s discretion.?

Nature of Case: Criminal

Electronic Data Involved: Emails sent from workplace computer

Colgate-Palmolive Co. v. Tandem Indus., 485 Fed. Appx. 516 (3d Cir. 2012)

Dec 01 2012

Key Insight: Considering Defendant?s argument for an adverse inference where his former employer failed to produce his former work laptop and files, the court noted that the ?undisputed evidence show[ed] that Colgate destroyed the data on the laptop shortly after Flower?s retirement,? and concluded that: ?When data is destroyed pursuant to normal recordkeeping practices (and in particular when it is destroyed in relation to a major event like an employee?s retirement), no adverse inference is warranted.?

Nature of Case: Breach of fiduciary duty

Electronic Data Involved: Laptop and its files

FTC v. Lights of America, Inc., No. SACV 10-1333 (JVS) (MLGx), 2012 WL 695008 (C.D. Cal. Jan. 20, 2012)

Dec 01 2012

Key Insight: Court held plaintiff was not obligated to issue a litigation hold at the beginning of its full-phase investigation or upon the issuance of a CID because litigation was not reasonably foreseeable at those times, noting that the duty to preserve attaches when litigation is probable, which means ?more than a possibility?; court declined to order sanctions related to plaintiff?s auto-delete policy where the policy called for the preservation of relevant ESI and the deletion of duplicates and indicated that even if the policy resulted in the inadvertent loss of email, there was no evidence of bad faith, and cited Rule 37(e) re: safe harbor; court declined to impose sanctions for failure to issue a litigation hold over documents not in the plaintiff?s possession or control

Nature of Case: Government investigation

Electronic Data Involved: ESI

FDIC v. Appleton, No. CV-11-476-JAK (PLAx), 2014 WL 10245383 (C.D. Cal. Nov. 29, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced Relativity database with some 700,000 documents culled from its main server using search terms, and defendants complained there was no apparent logic to database and they could not tell what documents were responsive to what requests, court sided with defendants and ordered plaintiff to create files in Relativity into which it would place documents responsive to each particular request

Nature of Case: Receiver brought action against former officers and directors of failed bank

Electronic Data Involved: ESI

Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012)

Dec 01 2012

Key Insight: On petition for discretionary review, Court of Criminal Appeals affirmed appeals court?s finding that state proffered sufficient evidence to establish a prima facie showing that social-networking webpage offered into evidence was authored by the defendant based upon sufficient circumstantial evidence to ?support a finding that the exhibits were that they were purported to be?; court?s opinion discussed proper procedures for authenticating evidence

Nature of Case: Criminal

Electronic Data Involved: Social Media Content (e.g., MySpace.com)

Stooksbury v. Ross, No. 3:09-CV-498, 2012 WL 3779113 (E.D. Tenn. Aug. 31, 2012)

Dec 01 2012

Key Insight: Addressing post-judgment discovery issues, including plaintiff and receiver?s request to have certain hard drives imaged, court rejected defendants? claim that certain computers contained privileged information where those assets were sold to a third-party and thus any privilege was waived; court further ordered that personal computer and ipad belonging to an individual defendant should be imaged for preservation purposes, to be retained by the expert performing such imaging pending further orders from the court

Electronic Data Involved: Business and personal hard drives and ipad

Abbot Point of Care, Inc. v. Epocal, Inc., No. CV-08-S-543-NE, 2012 WL 7810970 (N.D. Ala. Nov. 5, 2012)

Dec 01 2012

Key Insight: Court declined to allow recovery of costs related to maintenance of an electronic discovery database but allowed recovery of costs related to ?processing of electronic documents, including conversion of native files to ?TIFF? format for production to Abbott; conversion of document[s] from ?TIFF? format to a searchable format; importing and loading of documents to an electronic database; production of electronic documents; and the associated project and technical support?

Electronic Data Involved: ESI taxable costs

Brocade Commc?ns Sys. v. A10 Networks, Inc., No. 10-CV-03428-LHK, 2012 WL 70428 (N.D. Cal. Jan. 9, 2012)

Dec 01 2012

Key Insight: Finding that plaintiff had shown good cause for requiring production of ?not reasonably accessible information,? the court granted plaintiff?s motion to inspect an individual defendant?s hard drive noting that such inspections had been allowed by other courts in cases of alleged misappropriation of trade secrets and further citing the relevance of the hard drive?s contents to the underlying claims, the inability to obtain the evidence elsewhere, and defendant?s inability to explain its statement that the hard drive in question had been ?recycled?; court held that plaintiff was ?not entitled to set the conditions of the inspection unilaterally nor select the person who will perform it? and ordered the parties to confer to agree on a protocol

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Contents of hard drive

Moore v. Gilead Sciences, Inc., No. C 07-03850 SI, 2012 WL 669531 (N.D. Cal. Feb. 29, 2012)

Dec 01 2012

Key Insight: Court granted in part defendant?s motion for sanctions and ordered an adverse inference where the court determined plaintiff had a duty to preserve and that the deliberate wiping of his hard drive was in bad faith but declined to impose monetary sanctions or dismissal where plaintiff?s actions were not found to be sufficiently egregious, where plaintiff was forthcoming about the spoliation and his reasons (to protect personal and privileged information contained on the work-issued laptop), and where defendant had a substantial amount of the deleted material on backup tapes, etc. because of its backup practices

Nature of Case: Employment litigation

Electronic Data Involved: ESI from laptop

Catagory:Case Summaries