Case Summaries – Page 191 – Electronic Discovery Law

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

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

Ameripride Servs. Inc. v. Valley Indus. Serv., Inc., No. CIV S-00?113 LKK/FM, 2012 WL 1641749 (E.D. Cal. May 9, 2012)

Dec 01 2012

Key Insight: Court granted recovery of costs related to ?internal scanning, importing and electronic review of documents? where plaintiff asserted that the documents were scanned and produced at defendant?s request, and in the electronic format demanded and where plaintiff asserted that ?importing, coding, and OCR ? were necessary to produce the documents? as demanded

Electronic Data Involved: ESI

Eolas Techs., Inc. v. Abode Sys., Inc., — F. Supp. 2d —, 2012 WL 4092568 (E.D. Tex. July 19, 2012)

Dec 01 2012

Key Insight: Addressing taxable costs, court approved recovery of costs for scanning but, citing the Third Circuit decision in Race Tires Am. Inc. v. Hoosier Racing Corp., held that ?document collection, processing, and hosting? were not ?recoverable costs? and also held that, where the parties agreed that TIFF images were an acceptable form of production, but not required, the conversion was not ?necessarily obtained for use in the case? and thus related costs were not taxable under ? 1920; court indicated in footnote that had TIFF been the only agreed upon format of production, the outcome may have been different

Electronic Data Involved: ESI

Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387(E.D. Mich. 2012)

Dec 01 2012

Key Insight: Court denied defendant?s motion to compel plaintiff to authorize access to her Facebook account where defendant did not have the ?generalized right to rummage at will through information that Plaintiff has limited from public view? absent a threshold showing that the requested information is reasonably calculated to the lead to the discovery of admissible evidence and where defendant failed to make that showing (court noted, for example, that the pictures available for public viewing on plaintiff?s account did not show activity inconsistent with plaintiff?s claims of injury)

Nature of Case: Slip and fall

Electronic Data Involved: Facebook contents

Catagory:Case Summaries