Case Summaries – Page 211 – Electronic Discovery Law

Schulte v. NCL (Bahamas) Ltd., 2011 WL 256542 (S.D. Fla. Jan. 25, 2011)

Dec 01 2011

Key Insight: Court rejected defendant?s assertion that relevant video surveillance footage was protected as work product as a result of its preservation in anticipation of litigation and pursuant to the direction of counsel where the video was ?made as part of the normal course of surveillance videos made by NCL? and ?was not created in the work product context?

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance footage

United States v. Fetter, No. 3:10 CR 411, 2011 WL 1060301 (N.D. Ohio Feb. 18, 2011)

Dec 01 2011

Key Insight: Where video of defendant?s alleged destruction of evidence while in a holding cell was automatically recorded over pursuant to the department?s standard policy and was not preserved because none of the officers involved in the investigation realized the images from cameras in the cells were recorded (as opposed to merely ?stream[ed]? to allow observation), court found no bad faith and thus no violation of due process arising from destruction of ?potentially useful? evidence (as opposed to exculpatory evidence)

Nature of Case: Criminal (sex trafficking)

Electronic Data Involved: Video of defendant while in holding cell

McCargo v. Texas Roadhouse, Inc., No. 09-cv-02889-WYD-KMT, 2011 WL 1638992 (D. Colo. May 2, 2011)

Dec 01 2011

Key Insight: Where willful, bad faith spoliation of relevant video tapes despite a duty to preserve (triggered by an internal complaint of harassment and receipt of two preservation requests from plaintiff) resulted in prejudice to the plaintiff, court ordered sanctions, including an adverse inference allowing (but not requiring) the jury to infer that certain tapes would have been harmful to defendant, an order precluding defendant from the introduction of certain evidence, and a prohibition on cross examination of plaintiff?s witnesses as to certain topics

Nature of Case: Racial discrimination

Electronic Data Involved: Video

United States v. Tummins, No. 3:10-00009, 2011 WL 2078107 (M.D. Tenn. May 26, 2011)

Dec 01 2011

Key Insight: Court granted motion to compel production of defendant?s hard drive with all child pornography files redacted where the court determined that the likelihood that child pornography would remain on the drive after steps to redact were taken was ?relatively low? and where the government?s inspection accommodations in lieu of production did not provide the statutorily required ?ample opportunity for inspection? where the restrictions on inspection limited the time allowed for inspection and required the forensic examiner to leave his equipment unattended

Nature of Case: Criminal/ possession of child pornography

Electronic Data Involved: Hard drive

Pink Lotus Entm?t, LLC v. Does 1-46, No. C-11-002263 HRI, 2011 WL 2470986 (N.D. Cal. June 21, 2011)

Dec 01 2011

Key Insight: After consideration of the four relevant factors to determine whether there is good cause to allow expedited discovery and upon a determination that plaintiff had met its burden, court granted motion to allow expedited discovery for the limited purpose of obtaining indentifying information from alleged infringers? ISPs

Nature of Case: Copyright Infringement

Electronic Data Involved: Identifying information from internet service providers

English v. Wal-Mart Stores, Inc., No. 3:10-cv-00080-ECR-VPC, 2011 WL 3496092 (D. Nev. Aug. 10, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions for loss of surveillance tape where duty to preserve arose upon request for the evidence-three months after the fall occurred- and where plaintiff did not show that defendant destroyed or lost the video and photographs with ?culpable intent or in a negligent and possibly reckless manner after Defendant?s duty to preserve the evidence arose.?

Nature of Case: Personal Injury

Electronic Data Involved: Video surveillance

Madere v. Compass Bank, No. A-10-CV-812 LY, 2011 WL 5155643 (W.D. Tex. Oct. 28, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel production of email requiring restoration of backup tapes where defendant?s expert averred that it would cost over $270,000 and require hundreds of hours to accomplish, where plaintiff?s expert could not ?ascertain an estimate for the actual cost,? and where ?even if the actual cost of restoring the backup tapes was only a fraction? of the estimated amount, it ?would still outweigh the amount [Plaintiff] seeks to recover?

Nature of Case: Violation of FMLA

Electronic Data Involved: Emails on backup tapes

Veolia Transp. Servs. v. Evanson, No. CV-10-01392-PHX-NVW, 2011 WL 5909917 (D. Ariz. Nov. 28, 2011)

Dec 01 2011

Key Insight: Where, prior to being named a party to the action, defendant failed to preserve ESI (including failing to pay a vendor for imaging her hard drive, which resulted in the vendor’s destruction of the image) despite the receipt of two subpoenas, where the court found the spoliation to be at least willful, and where the circumstances surrounding the spoliation permitted an inference that the information destroyed was highly relevant to the litigation, court found an entry of default was appropriate and set a hearing to determine the appropriate damages

Nature of Case: Tortious interference with a contract, breach of contract, defamation, etc. arising from anonymous emails sent to several parties

Electronic Data Involved: ESI, hard drive

Denim N. Amer. Holdings, LLC v. Swift Textiles LLC, 816 F. Supp. 2d (M.D. Ga. 2011)

Dec 01 2011

Key Insight: Despite noting that it was ?undisputed? that plaintiffs? witnesses did not modify their practice of ?deleting most emails within a short time of receiving them? even after they reasonably anticipated litigation, the court declined to impose an adverse inference where the record supported a finding that the witnesses ?destroyed the emails in the ordinary course of business unmotivated by any bad faith.?

Nature of Case: Fraudulent inducement, breach of fiduciary duty

Electronic Data Involved: Emails

Bell v. Callaway Partners, LLC, 1:06-CV-1993-CC, 2011 WL 13175079 (N.D. Ga. June 1, 2011)

Dec 01 2011

Key Insight: Court approved recovery of costs for expenses Defendants incurred for document scanning or imaging given that the parties agreed Defendants would produce documents in electronic format. The Court declined to allow recovery of costs for services and products other than the reproduction of documents such as Bates labeling, OCR formatting, CD creation, CD archival and PDF to TIFF Conversion stating that although such services and products assist in document review, they ?extend beyond mere copying and were unnecessary.?

Nature of Case: Taxable Costs

Catagory:Case Summaries