Case Summaries – Page 91 – Electronic Discovery Law

Procom Heating, Inc. v. GHP Group, Inc., No. 1:13-cv-00163-GNS, 2016 WL 8203221 (W.D. Ky. July 8, 2016)

Dec 01 2016

Key Insight: Where Defendant formulated search terms and identified custodians unilaterally before undertaking its search and where plaintiff suspected the results were insufficient based on both the low volume of information produced and the failure to produce certain expected information (based on third parties? productions), the court considered Defendant?s multiple proposals for addressing the issue and determined that starting again, from scratch, was most appropriate; addressing whether the cost was disproportionate, court declined to characterize the costs as ?additional expense,? reasoning that Defendant ?should have resolved these issues before undertaking its unilateral search?

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Learning Care Grp. v. Armetta, No. 3:13-cv-1540 (VAB), 2016 WL 4191251 (D. Conn. June 17, 2016)

Dec 01 2016

Key Insight: Where Defendant destroyed laptop of departed employee (a ?key point of contact? for Plaintiffs in their relationship with Defendant) in accordance with its usual course of business despite a duty to preserve, court found that the information lost was relevant and that prejudice resulted, but found that Defendant was merely negligent and that awarding attorneys? fees and costs was an appropriate sanction (not default judgment or an adverse inference as had been requested); court declined to consider the newly amended rules of procedure where the parties first raised the issue in September 2015, before the application of the new rules

Electronic Data Involved: Contents of laptop of departed employee

Benefield v. MStreet Entm?t, LLC, No. 3:13-cv-1000, 2016 WL 374568 (M.D. Tenn. Feb. 1, 2016)

Dec 01 2016

Key Insight: Where, despite a request from Plaintiff?s counsel to preserve all communications between plaintiff and defendants or their employees AND Defendants? OWN REQUEST that Plaintiff preserve information from her cellular phones, Defendants failed to preserve potentially relevant text messages, the court rejected defendants? arguments that ?due to the nature of text message communications and the cellular devices they are stored on?a requirement to preserve text messages from private cellular phones is unduly burdensome and an invasion of privacy? and found that the messages should have been preserved and indicated that a ?spoliation instruction to the jury? would be given at trial but declined to preclude defendants? reliance on plaintiff?s text messages at trial or to order defendants to pay fees and cost associated with the extraction of plaintiffs? text messages from her own phone

Nature of Case: Employment

Electronic Data Involved: Text messages

Lewis v. Bellows Falls Congregation of Jehovah?s Witnesses, No. 1:14-cv-205, 2016 WL 589867 (D. Vt. Feb. 11, 2016)

Dec 01 2016

Key Insight: Court granted motion to compel relevant contents of Plaintiff?s Facebook account but was not ?persuaded that unfettered access was warranted? and therefore ordered Plaintiff?s counsel to review Plaintiff?s ?entire Facebook account? to determine the relevance of the material therein, as determined by the court?s identification of 7 categories of relevant materials

Nature of Case: [N]egligence based on a duty (1) to perform an undertaking and (2) to supervise

Electronic Data Involved: Social Media contents (Facebook)

Browder v. City of Albuquerque, —F.Supp.3d—, 2016 WL 3397659 (D.N.M. May 9, 2016)

Dec 01 2016

Key Insight: Addressing loss of cellular phone(a tangible thing) belonging to officer involved in off-duty traffic accident despite a letter from plaintiff specifically requesting preservation and providing notice of imminent litigation, court found the city was at least grossly negligent in its failure to preserve and that Plaintiff was prejudiced as a result but fell short of finding that the loss was the result of bad faith and ordered production of documents previously withheld under claim of privilege and that the jury would be instructed that it may make ?any inference they believe appropriate in light of the spoliation?

Nature of Case: Traffic accident

Electronic Data Involved: Cellular Phone

Duhigg v. Goodwill Indus., No. 8:15CV91, 2016 WL 4991480 (D. Neb. Sept. 16, 2016)

Dec 01 2016

Key Insight: Court denied Plaintiff?s motion to compel the production of emails containing Plaintiff?s name as a search hit and granted in part Defendant?s motion for a protective order where Defendant established that the emails were not reasonably accessible in light of the time and minimum costs of production, estimated at $45,825, and where the court also found they were not proportional to the needs of the case; although the court found Plaintiff?s proposed terms overbroad (her name) the court disagreed with Defendant?s time limitation on its own search for emails where prior discriminatory acts, even if not actionable, could be used as background evidence and ordered the parties to meet and confer regarding appropriate search terms to be used to search the accounts of 3 custodians over a 4 year period

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Thurmond v Bowman, No. 14-CV-6465W, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016)

Dec 01 2016

Key Insight: Where Defendants sought spoliation sanctions for Plaintiff?s alleged deletion of social media postings that Defense counsel claimed had disappeared from the relevant account, the evidence indicated that the majority of those posts were merely hidden as the result of Plaintiff?s modification of her security settings and the court noted that the three posts that were missing ?did not seem relevant? and concluded that spoliation sanctions were not warranted; court?s analysis included disagreement with the argument that ?the entirety of a plaintiff?s social media account is per se relevant to any claim for emotional distress damages,? and concluded that the contention that sanctions were warranted for the deletion of any Facebook post swept ?far too broadly?

Nature of Case: Housing discrimination

Electronic Data Involved: facebook (social media / social network)

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

First Amer. Title Ins. Co. v. N.W. Title Ins. Agency, LLC, No. 2:15-cv-00229, 2016 WL 4548398 (D. Utah Aug. 31, 2016)

Dec 01 2016

Key Insight: Court concluded that Defendants ?taking steps? to start a competing company even if it was known that starting the company ?would be contentious and actively opposed? was insufficient to establish imminent litigation triggering a duty to preserve (note that imminence is the test in the 10th Cir.); court assessed requests for sanctions as to multiple sources of ESI and largely denied those motions absent evidence of prejudice or that the information could not be restored or replaced but did impose sanctions for non-party employee of Defendants? loss of potentially relevant ESI and hard copy taken from Plaintiff (both assessed ?under the same rubric of Rule 37?) and ordered that the parties would be permitted to present evidence of the spoliation to the jury

Electronic Data Involved: ESI & hardcopy

O?Berry v. Turner, Nos. 7-15-CV-00064-HL, 7:15:CV-00075-HL, 2016 WL 1700403 (M.D. Ga. Apr. 27, 2016)

Dec 01 2016

Key Insight: Where custodian printed single paper copy of relevant driver?s log and PeopleNet data to be maintained in the usual course of business, did nothing more upon receipt of a request for preservation and ultimately misplaced the envelope in which the information was maintained despite claiming to have done ?everything in his power to preserve evidence,? the court found that Defendant filed to take reasonable steps to preserve the data and acted with the intent to deprive Plaintiffs of the information in litigation, reasoning that it was ?simply irresponsible? to print a single paper copy for preservation and noting Defendant?s lack of a document preservation policy and the failure of counsel to contact the at-issue custodian for approximately two and one half years following receipt of the request to preserve, among other things: ?All of these facts, when considered together, lead the Court to conclude that the loss of the at-issue ESI was beyond the result of mere negligence. Such irresponsible and shiftless behavior can only lead to one conclusion?that ADM and Archer Daniel Midlands Company acted with the intent to deprive ??

Nature of Case: Automobile accident

Electronic Data Involved: Driver’s log, PeopleNet data

Catagory:Case Summaries