Case Summaries – Page 89 – Electronic Discovery Law

Muhammad v. Mathena, No. 7:14cv00529, 2016 WL 8116155 (W.D. Va. Dec. 12, 2016)

Dec 01 2016

Key Insight: Prison employees? failure to preserve surveillance footage of inmate altercation despite notice of the obligation to do so was negligent; negligence imputed to other employees named as Defendants in Eighth Amendment claim where, despite the lack of a conventional agency relationship, the negligent/spoliating non-parties were not merely ?disinterested third parties? but rather were employees of the institution(s) responsible for preserving evidence in prisoner litigation and where requiring a conventional agency relationship would ?present a dilemma in the context of prison litigation .. where responsibility for preserving evidence may be spread out among multiple officials within an institute and where the institutions themselves are typically immune from suit?; as sanction, court forbade Defendants from putting on evidence related to Plaintiff?s disciplinary charges and conviction or the actual contents of the video and indicated it would instruct the jury that Plaintiff had requested the footage be preserved and it was not and that ?the jurors should not assume that the lack of corroborating objective evidence? undermined Plaintiff?s ?version of events surrounding the fight?

Nature of Case: Pro se Eighth Amendment Claims (prison litigation)

Electronic Data Involved: Surveillance footage

Friedman v. Philadelphia Parking Auth., No. 14-6071, 2016 WL 6247470 (E.D. Pa. Mar. 10, 2016)

Dec 01 2016

Key Insight: Where Defendant failed to preserve relevant evidence for reasons including its failure to timely issue a litigation hold following receipt of a letter threatening litigation and its lack of understanding related to the migration of its data to a new archival system resulting in the loss of ESI (e.g., Defendant was notified of but failed to address an ?over limit folder problem? related to two custodians, failed to confirm that data had successfully migrated before instructing employees to delete information ,etc.) but where Defendant undertook SUBSTANTIAL efforts to address its discovery defects and Plaintiff was unable to identify any specific information that was lost (where much was received from third parties or eventually produced as a result of Defendant?s remedial efforts) or to establish an intent to deprive, the court declined to impose sanctions pursuant to recently amended Rule 37(e); instead, pursuant to Rule 37(a) the court ordered Defendant to reimburse Plaintiff?s reasonable attorney?s fees and expenses necessary to prepare and file their motion for sanctions; regarding Defendant?s lack of a document retention policies and potential loss of data before implementation of its archive after its duty to preserve was triggered, the court indicated that prejudice was ?speculative? but invited a motion from Plaintiff for ?evidentiary rulings? if desired

J&JB Timberlands, LLC v. Woolsey Energy II, LLC, No. 14-cv-01318-SMY-PMF, 2016 WL 4006671 (S.D. Ill. Apr. 28, 2016)

Dec 01 2016

Key Insight: Although the court found that Defendants breached their duty to preserve certain emails by (1) failing to take reasonable steps to preserve Kelley?s emails, (2) misrepresenting the manner in which the data was lost, (3) misrepresenting that the lost data could not be recovered, and (3) using the laptop in May and August, 2015, the court also found the breach was not intentional and that Plaintiff was only ?minimally harmed? and eventually able to obtain the missing information and thus declined to strike Defendants? pleadings but ordered that Defendants should compensate Plaintiff for the reasonable attorneys? fees and expenses incurred in obtaining the email

Electronic Data Involved: Emails

Theidon v. Harvard Univ., NO. 15-cv-10809-LTS, 2016 WL 447447 (D. Mass. Feb. 4, 2016)

Dec 01 2016

Key Insight: Where Defendant objected to the production of duplicate documents but agreed to provide a spreadsheet with metadata for every document and to produce duplicates identified by Plaintiff, court concluded that Plaintiff had not demonstrated that Defendant?s proposal was unreasonable and denied her motion to compel

Nature of Case: Denial of tenure based on gender discrimination and retaliation

Electronic Data Involved: ESI

T-Mobile USA, Inc. v. Huawei Device USA, Inc., No. C14-01351 RAJ, 2016 WL 1597102 (W.D. Wash. Apr. 20, 2016)

Dec 01 2016

Key Insight: Motion for protective order granted where requested information was not relevant to claims or defenses plead and thus was outside of the scope of discovery

Nature of Case: Misappropriation of Trade Secrets

Electronic Data Involved: ESI, database

Wagoner v. Lewis Gale Med. Ctr., LLC, No. 7:15cv570, 2016 WL 3893135 (W.D. Va. July 13, 2016)

Dec 01 2016

Key Insight: Court granted motion to compel additional searching of Defendant?s computer systems and declined to order cost shifting despite Defendant?s claim that its inability to conduct a global search of its systems and resulting need to rely on a vendor rendered the search disproportional to the needs of the case where the court reasoned that Defendant had not carried its burden to show the information was inaccessible (?i.e., must be restored, de-fragmented, or reconstructed) and instead relied upon the expense of contracting with an outside vendor and that the necessary expense was the result of Defendant?s choice to use a system that did not preserve emails in a readily searchable format; ?Proportionality consists of more than whether the particular discovery method is expensive.?

Nature of Case: Employment litigation

Electronic Data Involved: ESI, including email

Bagley v. Yale Univ., No. 3:13-CV-1890 (CSH), 2016 WL 7407707 (D. Conn. Dec. 22, 2016)

Dec 01 2016

Key Insight: Court granted Plaintiff?s motion to compel production of litigation hold notices and related responses to a survey regarding recipients? computer use where, despite the absence of specific evidence of spoliation or a pending spoliation motion, the delayed (9-11 months) and rolling issuance of litigation holds was described by the court as ?leisurely, to an extent making it impossible to dismiss as frivolous [Plaintiff?s] suggestion that she might move for a spoliation sanction? and where the court reasoned that Plaintiff was ?entitled to discovery in these areas, in order to discern the merit or lack of merit of a formal claim for spoliation claim? [sic]; regarding assertions that the hold notices were privileged, the court reasoned that ?the predominant purpose of the communication was to give recipients forceful instructions about what they must do, rather than advice about what they might do?; court?s analysis included identification of six ?decisive questions? relevant to ?spoliation cases involving litigation hold notices? including, when the duty to preserve arose, whether litigation holds were issued, when they were issued, what they said, how recipients responded and what further action was taken beyond the litigation holds to preserve evidence

Nature of Case: Employment discrimination

Electronic Data Involved: Litigation Hold notices and survey to recipients regarding computer use

Thorne Research Inc. v. Atl. Pro-Nutrients, Inc., No. 2:13-cv-784, 2016 WL 1122863 (D. Utah Mar. 22, 2016)

Dec 01 2016

Key Insight: Defendant sought production of a complete copy of a Microsoft Access database utilized by patent?s co-inventor to input his formulas to assess the legitimacy of the claimed conception date. Plaintiff argued the database did not ?maintain metadata like word processing or spreadsheet programs do? and also that the database, maintained by a third-party, contained proprietary information of non-parties. Defendant maintained the stipulated protective order would protect the third-party proprietary information and that Plaintiffs had not argued that they would incur ?undue hardship or expense? in producing the database with its metadata. The court granted Defendant?s motion to compel production of the database and metadata for forensic analysis.

Nature of Case: Patent infringement

Electronic Data Involved: Microsoft Access Database

Madison Oslin, Inc. v. Interstate Res., Inc., No. MJG-12-3041, 2016 WL 1077101 (D. Md. Mar. 18, 2016)

Dec 01 2016

Key Insight: Where Plaintiffs objected to Defendants? recovery of ESI-related costs because the parties agreed that the costs of producing ESI from reasonably accessible sources would be borne by the producing party, the court reasoned that ?it did not follow that the scope of the agreement [could] be expanded to also address the costs recoverable to the prevailing party upon completion of the case,? that ?the parties agreed to require the production of metadata, in addition to simply reformatting the information into a non-editable format,? and that ?[t]he costs for such production are recoverable? and found that the copying costs incurred for the production of ESI were required for use in the case, limited to allowable costs, and reasonable and thus Plaintiff?s motion for a review of the clerk?s order taxing costs was denied

Nature of Case: Taxable costs where parties had agreed that producing parties would bear cost of production from reasonably accessible sources

Konica Minolta Bus. Sols., U.S.A., Inc. v. Lowery Corp., No. 15-cv-11253, 2016 WL 4537847 (Aug. 31, 2016)

Dec 01 2016

Key Insight: Assessing motion for sanctions, court found that Plaintiff established Defendants? duty to preserve (preservation requests were sent to all defendants) and that ESI was lost but found that further discovery was needed to address whether two of four ?predicate elements? of Rule 37(e) were met, namely whether reasonable steps were taken to preserve and whether the lost ESI could be restored or replaced through additional discovery, reasoning that ?[a]bsent sufficient proof that reasonable steps were not taken, KMBS is not entitled to relief under 37(e), even if it is shown that the ESI was lost. Sanctions are not automatic? and that ?[f]urther, a party cannot be sanctioned where the ability exists to restore or replace the ESI from other sources.?

Electronic Data Involved: ESI

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