Case Summaries – Page 59 – Electronic Discovery Law

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

Moody v. CSX Transp., —-F.Supp.3d—, No. 07-CV-6398P, 2017 WL 4173358 (W.D.N.Y. Sept. 21, 2017)

Dec 01 2017

Key Insight: Where event data recorder information saved on a laptop computer (1) was transferred to a central repository (?the Vault?) without validation and later found to be unreadable and (2) the original files were destroyed, without validating the files in the Vault, with the laptop after a hardware malfunction, court granted plaintiff?s motion for an adverse inference but declined to strike defendants? answer. Court found defendants? failure to review and validate file uploads to the central repository for over 4 years after the accident ?unfathomable? and concluded that ?their failure to access the files uploaded to the Vault for the four-year period before 2010 conflicted with their duties under the Federal Rules of Civil Procedure.? Court found defendants? actions unreasonable and without credible explanation and therefore sufficient to support a finding that defendants acted with the intent to deprive plaintiff of evidence.

Nature of Case: Personal injury (railway accident)

Electronic Data Involved: Event Data Recorder Files

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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Kirk v. Invesco, Ltd., No. H-15-833, 2017 WL 1078763 (S.D. Tex. Mar. 22, 2017)

Dec 01 2017

Key Insight: Court sustained objection to award of taxable costs related to vendor?s work to provide Plaintiff with an image of Plaintiff?s work computer

Electronic Data Involved: Taxable costs

Keathley v. Grange Ins. Co. of Mich., 15-cv-11888, 2017 WL 1173767 (E.D.Mich., Mar. 30, 2017)

Dec 01 2017

Key Insight: In this insurance litigation, the district court affirmed an order of the magistrate judge requiring Defendant?s counsel to provide additional information regarding the fate of relevant photographs but, upon review of the declaration submitted, found that it did not adequately address the loss and ordered that a representative of Defendant?s IT personnel be deposed; in concluding that a duty to preserve existed prior to Defendant?s ?final? determination regarding the claim, court reasoned in part that Defendant had asserted attorney client privilege with its outside counsel re: ?coverage issues? prior to its final determination and also noted its decision to require Plaintiff to testify under oath, indicating its skepticism of Plaintiff?s claim, and Defendant?s own request for Plaintiff to submit additional evidence, including any pictures

Nature of Case: Insurance litigation

Electronic Data Involved: Photographs

Alexis v Rogers, No. 15cv691-CAB (BLM), 2017 WL 1073404 (S.D. Cal. Mar. 21, 2017)

Dec 01 2017

Key Insight: Addressing Defendant?s request for forensic examination of Plaintiff?s computer as part of its Omnibus Discovery Motion, court noted Plaintiff?s testimony that her computer had crashed three times resulting in the loss of access to certain information, the fact that ?the majority? of Plaintiff?s work for Defendants was conducted remotely via computer, and the fact that Defendants were willing to pay for the examination, and concluded that Defendants had provided a ?legal basis justifying their request? but noted Defendant?s failure to provide sufficient information regarding the devices at issue, the identity or qualifications of the forensic expert or any details regarding the protocol or specifics of what to search for and thus denied the motion without prejudice

Nature of Case: Intentional and negligent infliction of emotional distress, sexual harassment, and retaliatory, wrongful termination, etc.

Electronic Data Involved: Forensic examination of computer

Zamora v. Stellar Mgmt. Grp., Inc. , 3:16-05028-CV-RK, 2017 WL 1362688 (W.D. Mo., Mar. 11, 2017)

Dec 01 2017

Key Insight: Where Plaintiff in an employment litigation failed to preserve a potentially relevant Facebook post, deleted her work phone before returning it and failed to preserve information contained on numerous other phones (e.g., because they were lost, etc.), court found that ?Plaintiff cannot be relied on to disclose all relevant communications? and granted motion to allow access to the mirror image of a phone belonging to a former employee and co-worker of the plaintiff and to allow defendant to subpoena the former employee to produce a second phone for inspection and ordered production of Plaintiff?s current work phone, to be reviewed by a Special Master for potentially relevant communications, with the cost of the Special Master to be split between the parties ; court found request for dismissal or an adverse inference was premature

Nature of Case: Employment litigation

Electronic Data Involved: ESI from cellular phones, Facebook

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

Duffy v. Lawrence Mem?l Hosp., No. 2:14-v-2256-SAC-TJJ, 2017 WL 1277808 (D. Kan. Mar. 31, 2017)

Dec 01 2017

Key Insight: Despite previously ordering production of ESI, court considered motion for protective order by defendant after the ?enormity of the task became apparent? and granted the motion in light of defendant?s presentation of evidence showing that responding to the at-issue requests would take 8,982 hours of work at a cost of $230,000, if accomplished by contract staff; court indicated that it found ?merit? in Defendant?s proposal to provide a random sample of the at-issue information ?from a standpoint of accuracy,? reasoning that ?human error would be a realistic factor? if Defendant were to employ contract workers to conduct a manual review of all of the records under time constraints

Electronic Data Involved: Electronic hospital records

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

Catagory:Case Summaries