Case Summaries – Page 59 – Electronic Discovery Law

Edelson v Cheung, No. 2:13-cv-5870 (JLL)(JAD), 2017 WL 150241 (D.N.J. Jan. 12, 2017)

Dec 01 2017

Key Insight: Where Plaintiff sought spoliation sanctions for Defendant?s deletion of emails and argued that Defendant intended to keep the at-issue account hidden and deleted emails after it was discovered through another party?s production and that those emails revealed Defendant?s intent to keep the at-issue account hidden and other elements of Plaintiff?s claims, the court found that the deletions were ?intended to deprive Plaintiff of the information? contained within and reasoned that Defendant?s claim that he deleted the emails because of computer performance lacked credibility, but declined to impose default judgment absent a sufficient degree of prejudice and instead ordered that a permissive adverse inference instruction would be given to the jury

Nature of Case: Breach of contract and related claims

Electronic Data Involved: Email

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

Brand Servs., LLC v. Irex Corp., NO: 15-5712, 2017 WL 67517 (E.D. La. Jan. 5, 2017)

Dec 01 2017

Key Insight: Plaintiff filed motion to compel the production of all computers or a forensic image of such computers of three former employees currently employed by Defendant. Plaintiff accused one employee, an informational technology specialist, of transferring files containing trade secrets and proprietary information to an external hard drive and later to his laptop furnished by Defendant. Plaintiff also sought the production of a forensic image of Defendant?s server. Defendant argued that direct investigation of these devices was too broad a scope and should be limited by an ?electronically stored information protocol.? The Court agreed that Plaintiff?s request was overly broad and disproportional and ordered both parties to submit a draft ESI protocol using key word searches so as to control costs and to keep discovery proportional to the needs of the case.

Nature of Case: Violation of non-compete agreement, Uniform Trade Secrets Act

Electronic Data Involved: ESI

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Realpage, Inc., v. Enter. Risk Control, LLC, No. 4:16-CV-00737, 2017 WL 1180420 (E.D. Tex. Mar. 30, 2017)

Dec 01 2017

Key Insight: The Court granted Plaintiffs? Motion to Compel Production of Defendants? computer images. Defendants made their source code available to Plaintiffs who then identified comments made prior to the produced source code date. Defendants insisted the pre-July 2013 source code was destroyed when Plaintiffs? former employee became a full-time employee of Defendants. The Court found that Defendants provided a sufficient explanation of good faith destruction of pre-July 2013 code but that limited forensic imaging could recover important deleted materials. The Court held that a tailored examination by a third-party forensic expert of Defendants? computers is appropriate to determine whether the pre-July code is recoverable or to assist in cross-examination as to its destruction.

Electronic Data Involved: Mirror image

Organik Kimya, San. ve. Tic. A.S. v. Int?l Trad Comm?n, 848 F.3d 994 (Fed. Cir. 2017)

Dec 01 2017

Key Insight: Court affirmed the sanction of default judgment imposed in 2014 by the International Trade Commission for Appellant?s egregious spoliation of evidence in bad faith and in violation of the Administrative Law Judge?s orders (including, among other things, repeatedly overwriting files, backdating a computer?s internal clock to affect metadata, running CCleaner)

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Andrews v. Autoliv Japan, Ltd., 1:14-cv-3432-WSD, 2017 WL 2805868 (N.D. Ga. June 29, 2017)

Dec 01 2017

Key Insight: Court denied Defendant?s request for e-discovery costs. Defendant?s vendor provided services to create optical character recognition (?OCR?) image and text files for Defendant?s productions. The Court concluded that the costs of creating electronic copies of documents are recoverable but the costs of creating a dynamic, indexed and searchable database that allows counsel to search for and within the documents are not recoverable. The Court denied Defendant?s recovery of costs for the technical services provided by their e-discovery vendor.

Nature of Case: Taxable costs

Electronic Data Involved: ESI

TLS Mgmt. & Mktg. Servs. LLC v Rodriguez-Toledo, No. 15-2121 (BJM), 2017 WL 1155743 (D.P.R. Mar. 27, 2017)

Dec 01 2017

Key Insight: For an individual defendant?s admitted disposal of his laptop and deletion of the contents of his external drive after transferring the contents to a thumb drive despite Plaintiff?s request to preserve and pending litigation, the court reasoned that Plaintiff ?plausibly suggests? that the laptop and hard drive ?might have? contained relevant ESI based on Defendant?s admitted accessing and copying of confidential files and imposed sanctions, including an adverse inference and an order for Defendants to permit and pay for examination of the at-issue external drive, but the court declined to impose sanctions for the individual defendant?s loss of his cellphone ?based on the current state of the evidentiary record? where Plaintiff failed to proffer evidence sufficient to suggest that the loss was not inadvertent or to clarify the approximate time of the loss

Electronic Data Involved: Laptop, ESI, cellular phone

Basra v. Ecklund Logistics, Inc., 8:16CV83, 2017 WL 1207482 (D. Neb., March 31, 2017)

Dec 01 2017

Key Insight: Plaintiff?s spouse was killed in a tractor-trailer accident when he collided with another tractor-trailer driven by Defendant?s employee. Plaintiff claimed Defendant destroyed or failed to preserve relevant documents in anticipation of litigation and requested sanctions in the form of an adverse inference instruction to the jury. The Court found Plaintiffs did not establish Defendant intentionally destroyed evidence with a desire to suppress the truth. Some of the information did not exist, some was purged per standard practice and much of the material requested by Plaintiffs was provided to them from other sources. The Court denied Plaintiff?s motion with respect to its claim for spoliation. Plaintiffs also requested attorney?s fees and costs as a sanction for Defendant?s failure to produce certain documents. Defendants inadvertently omitted its 2012 income statement but produced those from four other years. The Court held that sanctions were not warranted.

Nature of Case: Tort (Tractor-trailer accident)

Electronic Data Involved: ESI including Driver logs, Qualcomm data, PeopleNet server data

Singh v. Hancock Nat. Res. Grp., Inc., No. 1:15-cv-01435-LJO-JLT, 2017 WL 710571 (E.D. Cal. Feb. 22, 2017)

Dec 01 2017

Key Insight: Court recommended terminating sanctions for Plaintiffs? discovery violations, including failing to produce documents with metadata, as ordered, and failing to provide an explanation; failing to produce other documents as ordered, including a more legible version of a spreadsheet that Plaintiffs created; and falsifying discovery, but declined to recommend additional monetary sanctions

Electronic Data Involved: ESI

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

Catagory:Case Summaries