Case Summaries – Page 190 – Electronic Discovery Law

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

In the Matter of OSF Healthcare Sys., No. 9349, 2012 WL 1561035 (Mar. 27, 2012)

Dec 01 2012

Key Insight: Addressing when litigation was reasonably anticipated by Complaint Counsel (responsible for issuing the relevant Civil Investigative Demand), the court reasoned that anticipation of litigation was not triggered upon issuance of a ?second request? in connection with an ongoing investigation where the results of such investigations must first be analyzed to determine if an enforcement action is warranted and where the majority of investigations do not result in litigation; court denied respondent?s Motion to Compel

Nature of Case: FTC Civil Investigation

Electronic Data Involved: Relevant “communications”

United States v. Comty. Health Ctr. Of Buffalo, No. 05-CV-237A(F), 2012 WL 3136485 (W.D.N.Y. Aug. 1, 2012)

Dec 01 2012

Key Insight: Where plaintiff was able to recover potentially relevant ESI on defendants? backup tapes which had been produced to plaintiff without restriction following defendants erroneous determination that no responsive documents were contained thereon (as the result of using insufficient software to read the data) and where plaintiff therefore sought unrestricted access to the information, except for privileged documents, and for defendants to pay plaintiff?s cost to review the information, the court determined that defendants? production of the tapes waived their objections to Plaintiff?s efforts to locate responsive information but that the failure to identify potentially responsive documents was not in bad faith and that the information on the tapes was not reasonably accessible and denied Plaintiffs? motion for reimbursement for the cost of reviewing the tapes

Nature of Case: False Claims Act

Electronic Data Involved: ESI on “back-up magnetic tapes”

Barnes v. District of Columbia, —F. Supp. 2d —, 2012 WL 4101943 (D.D.C. Sept. 19, 2012)

Dec 01 2012

Key Insight: Where plaintiffs discovered, late in the discovery time period, that defendant?s database production was incomplete but defendant claimed plaintiffs were merely using the wrong query?a query that defendant had not yet produced?the court ordered that defendant produce the relevant query and left open plaintiffs? option to re-file its motion to compel production of additional data if, upon conducting its analysis with the proper query, it nonetheless determined (and could successfully show) that relevant data was missing

Nature of Case: Civil rights claims related to overdetention and strip searching of inmates

Electronic Data Involved: Database content, relevant database query

Minter v. Wells Fargo Bank, N.A., —F.R.D.—, 2012 WL 4903315 (D. Md. Oct. 12, 2012)

Dec 01 2012

Key Insight: Addressing production of business records pursuant to Rule 33(d) and, more specifically, who should bear the cost of imaging and segregating the relevant information from the many other pages of information with which the at-issue data was maintained, the court addressed the question of who would bear a heavier burden in locating and extracting the information (or whether the burden was even), determined it would be the plaintiffs (noting, for example defendant?s reliance on particular software not available to plaintiffs) and rejected defendant?s offer to do the work if plaintiffs bore the costs; court found that defendant must bear the cost of imaging and producing the data requested; court also addressed case scheduling in light of the time estimates for accomplishing the production and considered defendant?s resources, including the number of scanners and personnel that were required to complete the task, before ordering a deadline accordingly

Nature of Case: Alleged scheme to generate unlawful fees related to loan applications

Electronic Data Involved: Rule 33(d) business records

Anderson v. Otis Elevator Co., No. 11-10200, 2012 WL 5493383 (E.D. Mich. Nov. 13, 2012)

Dec 01 2012

Key Insight: Court denied motion for spoliation without prejudice where plaintiffs ?demonstrated only a suspicion of prejudice and have not been able to establish bad faith conduct on the part of the Defendant?

Nature of Case: Employment Discrimination

Electronic Data Involved: ESI, email, metadata related to excel spreadsheet

Banks v. Enova Fin., No. 10 C 4060, 2012 WL 5995729 (N.D. Ill. Nov. 30, 2012)

Dec 01 2012

Key Insight: Magistrate Judge did not act contrary to law by ordering that, as a sanction for grossly negligent spoliation of audio tapes pursuant to Defendant?s retention policy, there would be a presumption of a factual dispute at the summary judgment state as to whether Plaintiff hung up on a customer and that if the case proceeded to trial, the court should instruct the jury with a ?spoliation charge? ?not an adverse inference?which would allow but not require the jury to presume that the lost evidence was relevant and favorable to the innocent party; District Court acknowledged that bad faith was necessary to impose an adverse inference, but found that this was not an adverse inference and was therefore within the court?s discretion

Nature of Case: wrongful termination

Electronic Data Involved: Audio tapes of relevant phone calls

Tampa Bay Water v. HDR Eng?g, Inc., No. 8:08-CV-2446-T-27TBM, 2012 Wl 5387830 (M.D. Fla. Nov. 2, 2012)

Dec 01 2012

Key Insight: Court noted that the Third Circuit has ?persuasively reasoned that ?only the conversion of native files to TIFF (the agreed-upon default format for production of ESI), and the scanning of documents to create digital duplicates are generally recognized as the taxable ?making copies of material,?? (Race Tires Am., Inc. v. Hoosier Racing Tire Corp, 674 F.3d 158 (3d Cir. 2012)) but held that in the present case, the ?precise scope of ? 1920(4) [was] immaterial? because of the parties? contract regarding costs and expenses and declined to deny recovery or reduce the amount sought

Nature of Case: Engineering malpractice

Electronic Data Involved: taxable costs

Catagory:Case Summaries