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
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
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
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
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
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
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
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
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”
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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