Case Summaries – Page 189 – Electronic Discovery Law

Johnson v. Allstate Inc. Co., No. 07-cv-0781-SCW, 2012 WL 4936598 (S.D. Ill. Oct. 16, 2012)

Dec 01 2012

Key Insight: Court addressed question of taxable costs and relied heavily on Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009) and Race Tires Am. Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) and allowed recover as to rendering ESI word searchable, the creation of TIFF images, the creation of hard copies, photocopying, the creation of graphics for use at the hearing, and fees for obtaining transcripts but denied recovery as to the creation of a litigation database, processing of ESI, extraction of metadata, deduplication, electronic data hosting, and ?preparing ESI for production?

Nature of Case: Violations of Consumer Fraud and Deceptive Business Practices Act

Electronic Data Involved: ESI

Fraserside IP LLC v. Gamma Entm?t., —F. Supp. 2d—, 2012 WL 4504818 (N.D. Iowa Sept. 28, 2012)

Dec 01 2012

Key Insight: In dispute over jurisdictional discovery, court concluded that plaintiff was entitled to a ?small slice? of defendant?s Google Analytics data (which tracks and accumulates data related to websites? visitors) related to the number of visitors to defendant?s website(s) from Iowa-based IP addresses; court agreed with plaintiff that it was entitled to ?more? than a hard copy PDF ?screen grab? of the relevant information and indicated that it anticipated production as HTML pages that could be opened with a standard internet browser, but that if that was not an agreeable solution, another hearing would be held

Nature of Case: Copyright infringement and related claims

Electronic Data Involved: Google Analytics

Soto v. Castlerock Farming & Transport, Inc., 282 F.R.D. 492 (E.D. Cal. Apr. 30, 2012)

Dec 01 2012

Key Insight: Where defendant alleged that plaintiffs? requests would result in an undue burden in light of the number of defendant?s employees and the number of farm labor contractors with whom it did business (because of the high volume of records) the court concluded that sampling was ?an appropriate method? to relieve defendant?s burden and, recognizing that even sampling would be burdensome, ordered ?a reduced sample? which would nonetheless ?yield meaningful information? and further ordered defendant to perform a random sample of 50% of payroll and timekeeping records for designated months and years ?unless the parties agree to a different sampling method;? Court denied (in part) third-party?s motion to quash where the information sought was relevant and where the third party presented evidence of burden as to production in hard copy but presented no such evidence as to electronic records which the third party indicated it maintained

Nature of Case: Wage and hours class action

Electronic Data Involved: Payroll and timekeeping records, ESI

Norfolk S. Railway Co. v. Hartry, 316 Ga. App. 532 (Ga. Ct. App. June 29, 2012)

Dec 01 2012

Key Insight: Where relevant data could only be viewed using particular software, a license for which would cost $500, the trial court ordered Norfolk Southern to provide the data to Plaintiff ?in some useable form ? either by obtaining permission from [the owner of the software] to produce the data ?, by providing [Plaintiffs] with a computer with the necessary software? or by any other method the parties agreed to. On appeal, the court found no abuse of discretion, ?especially given the crucial nature of the evidence, the relatively minor cost of the license when compared to the amount at stake in the lawsuit, and the fact that it was Norfolk Sothern?s decision to equip its locomotives? with a recording device from which it could provide data to a third party only upon payment of a licensing fee.

Nature of Case: Personal injury arising from collision between train and tractor trailer

Electronic Data Involved: Event data recorder

Lake Village Healthcare Ctr., LLC v. Hatchett, 407 S.W. 3d 521 (Ark. 2012)

Dec 01 2012

Key Insight: Trial court did not err when it struck part of defendants’ answers as sanction for discovery violations where trial court’s order specifically detailed the opportunities afforded defendants to either comply with the email request or furnish a basis upon which the court could determine they were trying to comply with the request, and trial court found that defendants failed to produce the emails in response to the discovery request, failed to produce the emails when ordered by the court, failed to timely notify the court of compliance problems, failed to furnish sufficient information of their good faith efforts, and failed to furnish information regarding when compliance could be expected

Nature of Case: Wrongful death, negligence, breach of fiduciary and confidential duty, medical malpractice

Electronic Data Involved: Email

Brigham Young Univ. v. Pfizer, Inc., No. 2:06-cv-890 TS, 2012 WL 1302288 (D. Utah Apr. 16, 2012)

Dec 01 2012

Key Insight: Denying plaintiffs? motion for sanctions the court distinguished the cases of Lee v. Max Int., LLC, 638 F.3d 1318 (10th Cir. 2011) and Phillip M. Adams & Assoc., LLC v. Dell, Inc., 621 F. Supp. 2d 1173 (D. Utah 2009), found the defendant had not acted in bad faith, and rejected plaintiffs assertions that the duty to preserve arose from obligations to maintain information pursuant to corporate policy or an obligation to the government; noting that most relevant documents were from the 1990?s, the court also acknowledged that even where a preservation obligation exists, the passage of time can result in the inadvertent destruction or misplacement of evidence and the fading of human memories

Electronic Data Involved: Unspecified in opinion

Domanus v. Lewicki, No. 08 C 4922, 2012 WL 3307364 (N.D. Ill. Aug. 13, 2012)

Dec 01 2012

Key Insight: Where defendant?s breached their duty to preserve by discarding a hard drive belonging to defendant in the midst of discovery and where their ?story? of what happened to the drive (including claims that it was taken to the Apple Store for repairs) did not ?add up?, the district court found the magistrate judge?s failure to find that defendant?s acted in bad faith ?clearly erroneous? and that a finding of bad faith would allow prejudice to be presumed such that allowing but not requiring the jury draw a negative inference was ?insufficient;? as a sanction, the district court ordered that defendants obtain all relevant emails from their email service providers and precluded defendants from using as evidence any of the documents culled from the drive ?before they destroyed it?

Electronic Data Involved: Hard drive

Twitty v. Salius, No. 11-448, 2012 WL 147913 (2d Cir. Jan. 19, 2012)

Dec 01 2012

Key Insight: Appellate court found that District Court did not abuse its discretion in declining to impose an adverse inference instruction for the destruction of an original surveillance tape where the destruction was negligent and where, because of the existence of copies of the tape (albeit with slight differences in tracking, color, and audio quality), the destruction did not materially prejudice plaintiff?s case

Nature of Case: Civil rights action

Electronic Data Involved: VHS surveillance tape

Wynmoor Cmty. Council, Inc. v. QBE Ins. Co., —F.R.D.—, 2012 WL 716480 (S.D. Fla. Mar. 5, 2012)

Dec 01 2012

Key Insight: Court granted motion to allow forensic imaging of plaintiff?s computers for purposes of discovery where plaintiff?s production of ESI was very small, where plaintiff?s CIO admitted he had taken no efforts to retrieve any ESI, and where it was established that ESI may be present on plaintiff?s computers?possibly including electronic copies of hard copy documents which may have been shredded; court?s order called for court-appointed forensic expert to conduct examination and established other protocols to be followed

Nature of Case: Breach of insurance contract

Electronic Data Involved: ESI

Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., No. 05-CV-6734T, 2012 WL 1067664 (W.D.N.Y. Mar. 22, 2012)

Dec 01 2012

Key Insight: Where court found no evidence that defendant had instituted any litigation hold or any evidence surrounding its collection efforts and where defendant failed to preserve potentially relevant hard drives despite the knowledge that the emails potentially contained thereon could not be retrieved from the company?s backup tapes, the court found that defendant had acted with gross negligence and imposed monetary sanctions but declined to impose more severe sanctions where there was no evidence of ?bad faith or egregious gross negligence? or that plaintiff had been prejudiced by the loss

Nature of Case: Breach of contract and various tort claims

Electronic Data Involved: ESI, hard drives

Catagory:Case Summaries