Case Summaries – Page 190 – Electronic Discovery Law

Coquina Invs. v. Rothstein, No. 10-60786-Civ., 2012 WL 3202273 (S.D. Fla. Aug. 3, 2012)

Dec 01 2012

Key Insight: Court found that counsel for Defendant ?acted negligently in failing to comply with its discovery obligations in this case? and that Defendant ?acted willfully in failing to comply with its discovery obligations and assist its outside counsel to properly litigate this case? and ordered that certain adverse facts were established for purposes of this action and that counsel and Defendant pay Plaintiff?s reasonable attorney?s fees and costs associated with its fourth and fifth motion for sanctions; discovery violations identified included: late (including after trial) production of relevant documents, counsel?s failure to produce relevant evidence ?in a manner that preserved the documents qualities? (i.e., with highly relevant formatting changes (e.g. no color) and without metadata), both Defendant and counsel?s failure to ?conduct an adequate search,? and the conspicuous absence of Defendant?s in-house counsel in assisting or supervising the litigation; court also noted that ?[i]n many ways, this is a case of too many cooks spoiling the broth? where the defense included two firms, hundreds of lawyers, and a consultant that only one firm was aware of, for example

Nature of Case: Fraud

Electronic Data Involved: ESI

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

Apple, Inc. v. Samsung Co., Ltd., No. C 11-1846 LHK (PSG), 2012 WL 1595784 (N.D. Cal. May 4, 2012)

Dec 01 2012

Key Insight: For defendant?s significant delay in producing source code for ?design-around? products despite a court order compelling such production and because the delay resulted in prejudice to the plaintiff because of its inability to follow up (because the source code was produced after the close of discovery), the court imposed substantial sanctions and ordered that defendant would be precluded from offering ?design-around? evidence for three patents and from arguing that the design-arounds were in any way distinct from version of the code produced in accordance with the court?s order: ?Samsung must instead rely on versions of the code that were produced on or before December 31, 2011.?

Nature of Case: Patent Infringement

Electronic Data Involved: Source Code

Biselli v Cnty. of Ventura, No. CV 09-08694 CAS (EX), 2012 WL 2061688 (C.D. Cal. June 4, 2012)

Dec 01 2012

Key Insight: Where defendant had an obligation to preserve relevant video and in fact ?acknowledged? plaintiff?s request to preserve the video by objecting to it, court held that defendant had an obligation to preserve the requested evidence ?including a duty to deactivate any automatic purging policy? that defendant claimed resulted in the loss and ordered an adverse inference at trial with the potential for additional sanctions to be imposed later

Nature of Case: Claims resulting from suicide of inmate

Electronic Data Involved: surveillance video

Curcio v. Roosevelt Union Free Sch. Dist., — F. Supp. 2d —, 2012 WL 3236645 (E.D.N.Y. Aug. 10, 2012)

Dec 01 2012

Key Insight: Court noted 2d circuit?s rejection of premise that failure to issue a litigation hold constitutes gross negligence and declined to impose an adverse inference but did impose monetary sanctions for individual?s failure to preserve her own handwritten notes upon finding that she acted in a negligent manner in preserving those notes; court denied motion for spoliation sanctions against ?Roosevelt Defendants? (the District and the Board) for failure to preserve audio tapes that were contaminated with lead and asbestos while in storage and thus discarded ?through no fault? of the Defendants and imposed no sanctions for late production of relevant information

Nature of Case: Employment discrimination

Electronic Data Involved: Audio tapes, handwritten notes, miscellaneous

EEOC v. New Breed Logistics, No. 10-2696 STA/TMP, 2012 WL 4361449 (W.D. Tenn. Sept. 25, 2012)

Dec 01 2012

Key Insight: Upon Plaintiff?s motion for spoliation sanctions, court recognized two relevant trigger dates, the second of which expanded the initial scope of preservation, and found that Defendant was negligent in its failure to preserve relevant emails but declined to impose an adverse inference and instead ordered Defendant to bear the cost of restoring 33 backup tapes to determine if relevant information was contained thereon

Nature of Case: Sexual harassment

Electronic Data Involved: Emails

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