Case Summaries – Page 60 – Electronic Discovery Law

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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Coward v. Forestar Realty, Inc., 4:15-cv-0245-HLM (N.D. Georgia, Rome Division, 2017)

Nov 30 2017

Key Insight: Plaintiffs unable to access password protected video camera offered hard drive to Defendants; Court held inaccessible videos were spoliated.

Nature of Case: property damage claim

Electronic Data Involved: videos

Keywords: spoliation, prejudice, sanctions, adverse inference, attorney’s fees

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Holick v. Burkhart ( No. 16-1188-JTM (D. Kan. Nov. 30, 2017), 2017)

Nov 30 2017

Key Insight: Plaintiff did not specify whether any documents were being withheld in the course of making objections to discovery motions

Nature of Case: libel, assault, slander

Electronic Data Involved: documents and communications posted or stored on social media, e-mails

Keywords: “facially overbroad”, “anti-abortion”, “nearly two-decade time frame”, “provide any responsive information for the past seven (7) years”

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Knight Capital Partners Corp. v. Henkel AG & Company, KGaA, No. 16-12022 (E.D. Mich. Nov. 30, 2017).

Nov 30 2017

Key Insight: German defendant objected to discovery on basis of German Data Protection Laws. Court ruled that legal claim outweighed data protection.

Nature of Case: Tortious interference with business, breach of non-disclosure

Electronic Data Involved: German Business Records

Keywords: foreign company, data protection

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Catagory:Case Summaries