Case Summaries – Page 187 – Electronic Discovery Law

Johnson v. Metro. Gov. of Nashville and Davidson Cnty., TN, 2012 WL 4945607 (6th Cir. Oct. 18, 2012)

Dec 01 2012

Key Insight: Reviewing District Court?s denial of spoliation sanctions for abuse of discretion, Circuit Court found that the at-issue information should have been preserved and was intentionally destroyed but upheld the denial of sanctions based on plaintiffs? inability to establish relevance, a necessary element of the test for determining whether sanctions are appropriate

Nature of Case: Employment discrimination

Electronic Data Involved: ESI (Survey results)

Chechelle v. Ward, No. CIV-10-1286-M, 2012 WL 4481439 (W.D. Okla. Sept. 28, 2012)

Dec 01 2012

Key Insight: Where an employer allowed employees to use its computer systems for personal business but informed employees that it reserved the right to monitor and access emails and that emails were considered business records and may be subject to discovery in litigation, the court found that an employee had waived his claims of privilege as to communications with his attorney sent from his work account because it was unreasonable to expect that his attorney-client communications would remain confidential

Nature of Case: Violation of Securities and Exchange Act

Electronic Data Involved: attorney-client communications (emails)

In re Porsche Cars N. Am., Inc., No. 2:11-md-2233, 2012 WL 4361430 (S.D. Ohio Sept. 25, 2012)

Dec 01 2012

Key Insight: Court addressed a number of discovery issues related to Plaintiffs? motion to compel production and, among other things: 1) ordered production of the parameters of Defendants? searches where evidence indicated the possibility that Defendants made unilateral decisions to limit their search/production, where the parties disputed the meaning of certain search terms, and where the dearth of emails produced ?weighed in favor? of disclosing the search efforts; and 2) ordered defense counsel to certify that they had completed a reasonable inquiry and provided examples of the sort of information that should be included in such a certification

Nature of Case: Product Liability

Electronic Data Involved: ESI; search parameters; certification of reasonable inquiry

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

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