Case Summaries – Page 58 – Electronic Discovery Law

Dallas Buyers Club LLC v. Huszar, No. 3:15?cv?907?AC, 2017 WL 481469 (D. Or. Feb. 6, 2017)

Dec 01 2017

Key Insight: Where Defendant?s use of an internal utility tool on the at-issue server resulted in all of the data thereon being overwritten but where the District Court Judge found ?credible? Defendant?s explanations that he did not believe the hard drives contained relevant information and where the ?unique facts? of the case, namely the focus on Defendant?s TOR Node – which ?routed information for other end users around the world? but did not contain Defendant?s personal data – contributed to the court?s disagreement with the Magistrate Judge?s finding of intent, the court adopted the Magistrate Judge?s finding of spoliation but declined to impose default judgement and instead concluded that an adverse inference was appropriate

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

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Bratcher v. Navient Sols., Inc., 249 F.Supp.3d 1283 (M.D. Fla. 2017)

Dec 01 2017

Key Insight: Where defendant sought to examine plaintiff?s smartphone itself for the purpose of obtaining a log of blocked calls arguing that ?plaintiff is not entitled to recovery for any blocked calls,? the court noted that defendant had failed to provide legal basis for this position and that ?[T]here is no routine right of direct access to a party?s electronic information system. … absent a factual finding of some non-compliance with [the] discovery rules, direct access is unwarranted.? The court further noted that defendant made no effort to comply with the requirement for a proposal for the protection of privacy rights, the protection of privileged information, and the separation of irrelevant information during inspection. On this basis, the court found direct access to the cell phone unwarranted and denied defendant?s motion to compel.

Nature of Case: Telephone Consumer Protection Act

Electronic Data Involved: Cell Phone Call Block Records

Storey v. Effingham Cnty., No. CV 415-149, 2017 WL 2623775 (S.D. Ga. June 16, 2017)

Dec 01 2017

Key Insight: For Defendants? negligent (or even reckless) failure to preserve relevant video footage following Plaintiff?s release from jail despite the ?distinct possibility? of litigation in light of the injuries Plaintiff suffered while in custody and his specific threats to sue, the court imposed sanctions to redress the prejudice to Plaintiff and ordered that the court would tell the jury that the video was not preserved and that the parties could present evidence and argument regarding that failure for the jury?s consideration

Electronic Data Involved: Surveillance footage from jail

Montgomery v. Iron Rooster-Annapolis, LLC, No. RDB-16-3760, 2017 WL 1902699 (D. Md. May 9, 2017)

Dec 01 2017

Key Insight: Court found Plaintiff failed to take reasonable steps to preserve ESI when she turned her phone in to Verizon on August 15, 2016. Defendants claimed text messages on the Plaintiff?s phone could have shown she was acting as a manager and was hence an exempt employee. Defendants discussed their position with Plaintiff?s counsel in June, 2016 and the phone was de-activated two months later. Plaintiff testified she did not know she had to keep the phone to preserve the ESI. The Court found this testimony credible and recommended, pursuant to Rule 37(e)(1) that the ??[C]ourt order measures no greater than necessary to cure the prejudice? and proposed an instruction to the jury that Plaintiff had a duty to maintain potential ESI contained on her phone, but failed to do so and indicated the court could also instruct the jury as to any inference to draw from Plaintiff?s failure to preserve texts on her phone.

Nature of Case: Employment litigation, unpaid overtime

Electronic Data Involved: Text messages

Barcroft Media, Ltd. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF) (S.D.N.Y. Sept. 28, 2017)

Dec 01 2017

Key Insight: Spoliation sanctions for failing to preserve the webpages in which the images were published.

Nature of Case: Intellectual Property infringement

Electronic Data Involved: Images, Webpages

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IDC Fin. Pub., Inc. v. Bonddesk Grp., LLC, No. 15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)

Dec 01 2017

Key Insight: In this case, the court granted Plaintiff?s motion to compel production of over 600 documents previously produced with extensive non-responsive redactions applied. Defendants argued that the redactions were necessary to protect confidential business information that was not relevant to the underlying dispute and cited In re Takata Airbag Prods. Liab. Litig., 14-24009-CV-MORENO, 2016 WL 1460143 (S.D. Fla. Feb. 24, 2016), in support of their position. In Takata, the court allowed certain non-responsive redactions ?because of its concern that the documents contained competitively sensitive materials that may have been exposed to the public, despite protective orders.? In the present case, the court cited Burris v. Versa Prods., Inc., No. 07-3938 (JRT/JJK), 2013 WL 608742 (D. Minn. Feb. 19, 2013) for the propositions that non-responsive redactions are not explicitly supported by the federal rules and that allowing such redactions has the potential for abuse, where parties would be incentivized to ?hide as much as they dare.? The court further reasoned that Defendants did not assert any privilege or provide a ?compelling reason? for their ?extensive? redactions and that they failed to explain why the existing protective order did not provide adequate protection. Thus, the court concluded that it ?[did] not see a compelling reason to alter the traditionally broad discovery allowed by the rules by letting the defendants unilaterally redact large portions of their responsive documents on relevance grounds? and granted Plaintiff?s motion to compel

Electronic Data Involved: ESI

Bailey v. Alpha Techs., Inc., No. C16-0727-JCC, 2017 WL 2378921 (W.D. Wash. June 1, 2017)

Dec 01 2017

Key Insight: Court granted motion to compel production of requested ESI in native format: ?Native format production also complies with the Federal Rules of Civil Procedure and this case?s ESI order. Moreover, the Court finds that metadata and native format production are relevant and proportional to the needs of discovery. It is untenable to assert in this technology-driven age of litigation that images of electronic documents provided in TIFF and PDF form offer all of the relevant information possible. The metadata that is not visible in TIFF and PDF productions, but is visible in native format production, is relevant information. Therefore, the Court GRANTS Plaintiff?s motion on this issue.?

Nature of Case: Employment litigation

Electronic Data Involved: ESI

Youngevity Int’l Corp. v. Smith, No. 16-cv-704-BTM-JLB (S.D. Cal. Dec. 21, 2017)

Dec 01 2017

Key Insight: 4.2 million pages of keyword “”hit”” documents produced without review, but designated “”Attorney Eyes Only.

Nature of Case: unfair competition

Electronic Data Involved: 4.2 million pages of keyword “”hit”” documents

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Brown v. Certain Underwriters at Llyods, London, No. 16-cv-02737, 2017 WL 2536419 (E.D. Pa. June 12, 2017)

Dec 01 2017

Key Insight: Applying the common law, the court imposed a permissive adverse inference and monetary sanctions for Plaintiff?s spoliation of his cellular phone and its contents where Plaintiff claimed a day before he was scheduled to produce it that he had lost his phone months ago but provided no details regarding the loss or his attempts at preservation or recovery of the phone and where the court concluded that Plaintiff made a ?deliberate choice to withhold [the phone] from production? and that Defendants were prejudiced as a result

Nature of Case: Insurance coverage litigation

Electronic Data Involved: Cellular phone and contents

Camicia v. Cooley, No. 74048-2-I, 2017 WL 679988 (Wash. Ct. App. Feb. 21, 2017)

Dec 01 2017

Key Insight: Where Defendant destroyed potentially relevant tort-claim records pursuant to its record retention schedule during pending litigation among other discovery abuses and where the trial court therefore ordered monetary sanctions for the discovery violations and indicated that it would consider a spoliation instruction, the appellate court concluded that the trial court?s record did not support a finding that ?the City destroyed the evidence in bad faith, knew that the evidence was important to the pending litigation, or had the duty to preserve the evidence? and thus, it was not clear that spoliation had occurred; error was harmless where $10,000 fine was not based on a finding of spoliation

Nature of Case: Tort (bicycling accident)

Catagory:Case Summaries