Case Summaries – Page 91 – Electronic Discovery Law

Virtual Studios, Inc. v. Stanton Carpet, Corp., No. 4:15-CV-0070, 2016 WL 5339601 (N.D. Ga. June 23, 2016)

Dec 01 2016

Key Insight: Where the court acknowledged that after a duty to preserve arose in 2009 Plaintiff ?did little, if anything, to prevent the loss of emails,? including failing to instruct employees to retain relevant documents and emails and failing to backup emails stored on employees individual hard drives, but where Defendant failed to establish bad faith or an intent to deprive, the court declined to impose an adverse inference or other serious sanctions pursuant to Rule 37(e)(2) but, upon finding that the loss of emails was prejudicial to Defendant (where the parties offered competing narratives regarding whether Defendant was informed regarding Plaintiff?s limitations on the use of its images), ordered that the defendant ?may introduce evidence concerning the loss of the e-mails and may make an argument to the jury concerning the effect of the loss of the e-mails?

Nature of Case: Copyright infringement

Electronic Data Involved: Emails

Garcia v. City of Farmington, No. Civ. 12-383 JCH/SCY, 2016 WL 7438045 (D. N.M. Jul. 5, 2016)

Dec 01 2016

Key Insight: Plaintiff created audio recordings during her employment with Defendant, transcribing some of them and later deleting recordings she felt to be insignificant. Plaintiff also claimed her computer ?crashed? in 2011 or 2012 and that caused her to lose material (this issue not raised at previous deposition). After the close of trial, Defendant filed a Renewed Motion for Adverse Spoliation Inference and to Strike Testimony. The court found Plaintiff had a duty to preserve because she made the recordings after she filed a grievance and EEOC charge. Plaintiff admitted that the deleted recordings did not ?capture unfair and discriminatory treatment of her,? which the court found to ?cure any prejudice Defendant may have suffered.? The court found that Plaintiff?s actions ?were intentional and more than merely negligent, but she did not act with a sinister intent,? and that Plaintiff did not understand she needed to preserve all the recordings. The court will consider Defendant?s evidence of Plaintiffs spoliation when it weighs the evidence presented at trial, but otherwise denied Defendant?s request to impose sanctions.

Nature of Case: Renewed Motion for Adverse Spoliation Inference and to Strike Testimony, on underlying case of discrimination and retaliation

Electronic Data Involved: Audio recordings

Exclaim Mktg., LLC v. DIRECTV, Inc., No. 5:11-cv-684-FL, 2016 WL 1258776 (E.D. N.C. Mar. 28, 2016)

Dec 01 2016

Key Insight: Court disallowed costs for ? ?iConnect Licensing Fees,? data hosting, ?OCR,? and near-line hosting? ?arising out of the storage and analysis of electronically stored information? as well as ?outside labor charges? described as ?tech time?

Nature of Case: Taxable costs

Champion Foodservice, LLC v. Vista Food Exchange, No. 1:13-cv-1195, 2016 WL 6638614 (N.D. Ohio Mar. 29, 2016)

Dec 01 2016

Key Insight: Where the magistrate judge recommended that Defendant?s request for forensic inspection be granted, to be undertaken by a neutral third party, in light of the fact that the information sought ?seem[ed] germane? and because despite ?hesitancy to allow on site inspections ? the level of distrust among the parties ? plead[ed] for such intervention,? the District Court overruled Defendant?s objections, noting that through their distrust and lack of cooperation ?[t]he parties and counsel themselves have created an atmosphere that warrants extraordinary circumstances and establishes good cause for an on-site inspection of Champion?s electronically stored information? and set forth a process by which the inspection would take place, including that the costs would be shifted to the requesting party ?given the nature of the accessibility of the [ESI] sought? (i.e., the information sought included backup and deleted material)

Electronic Data Involved: Forensic inspection of ESI, including backup and deleted material

Magdaluyo v. MGM Grand Hotel, LLC, no. 2:14-cv-01806-RFB-GWF, 2016 WL 614397 (D. Nev. Feb. 16, 2016)

Dec 01 2016

Key Insight: Where Plaintiff specifically requested preservation of certain video that was not preserved, court concluded that Defendant ?simply ignored? the request and imposed an adverse inference that the video would have been favorable to Plaintiff; for Defendant?s failure to preserve surveillance video of alleged harassment for which there was no specific request to preserve, court reasoned that Defendant had a duty to investigate the allegation and preserve any video that existed of the incident and concluded that the jurors would be instructed that ?Defendant had a duty to preserve the video if it existed and that they may, but are not required to, infer that the video recording would have been favorable to the Plaintiff?

Nature of Case: Employment litigation (discrimination, harassment, etc.)

Electronic Data Involved: Video surveillance footage

Deere & Co. v. Duroc LLC, 650 Fed. Appx. 779 (Fed. Cir. 2016)

Dec 01 2016

Key Insight: Where parties entered into an agreement that set forth parameters for production of ESI, District Court held that ?when the costs of complying with the agreement are within the obligations of the Agreement and reasonably incurred in complying with the Agreement, they are recoverable? and circuit court, on appeal, concluded that District Court acted within its discretion: ?The district court held that the e-discovery costs incurred in procedures required by the ESI Agreement are within the scope of ? 1920. Relying on the Agreement, the district court did not separate the activities required by the e-discovery Agreement. We conclude that the district acted within its discretion.?

Nature of Case: Patent infringement

Electronic Data Involved: Taxable Costs ( 28 U.S.C. ? 1920)

Lexpath Techs. Holdings, Inc., N0. 13-cv-5379-PGS-LHG, 2016 WL 4544344 (D.N.J. Aug. 30, 2016)

Dec 01 2016

Key Insight: Where Defendant used CCleaner on his work laptop and failed to produce three thumb drives, court concluded that the relevance prong of its analysis was satisfied (noting Plaintiff?s lack of credibility), that there was a duty to preserve, and that information was actually suppressed or withheld and, citing Rule 37(e,) imposed a presumptive adverse inference upon the determination that the loss was intentional, based on the timing of the spoliation (shortly following receipt of a cease and desist letter, including Plaintiff?s potential claims), among other things

Nature of Case: Claims arising from employee’s departure and start of competing business

Electronic Data Involved: ESI

Glob. Materials Techs., Inc. v. Dazheng Metal Fibre Co. Ltd., No. 12 CV 1851, 2016 WL 4765689 (N.D. Ill. Sept. 13, 2016)

Dec 01 2016

Key Insight: Where the court concluded that Defendants deliberately failed to preserve evidence ?in order to prevent [Plaintiff] from obtaining the evidence and using it against defendants in litigation? (e.g., by liquidating computers and delaying accessing an email account until emails were deleted by the provider) and lied to the court and to the plaintiff (?Defendants were not merely dilatory or misleading in their litigation tactics; they were affirmatively deceitful?), the court reasoned that while an adverse inference or prohibition on introducing certain evidence may ?level the playing field? it would not sufficiently punish Defendants for their dishonesty, and therefore imposed default judgment as to liability (damages remained to be proven); court?s analysis noted that under Fed. R. Civ. P. 37(e)(2) a specific finding of prejudice is not required where the finding of intent supports the inference that the missing information was unfavorable to the party who destroyed it

Nature of Case: Trade secrets

Electronic Data Involved: Computers, emails

Delphi Commc?ns. Inc. v. Advanced Computing Techs. Inc., No. A15A1655, 2016 WL 1176998 (Ga. Ct. App. Mar. 28, 2016)

Dec 01 2016

Key Insight: Appellate court upheld trial court?s decision to strike defendants? answer and enter default judgment (as to one claim) as a spoliation sanction for Defendants? failure to preserve an image of their hard drives

Nature of Case: Claims against former employees and thier employer alleging copying of Plaintiff’s software products and solicitation of Plaintiff’s customers without consent

Electronic Data Involved: ESI

Prezio Health, Inc. v. John Schenk & Spectrum Surgical Instruments, Inc., No. 3:13 CV 1463 (WWE), 2016 WL 111406 (D. Conn. Jan. 11, 2016)

Dec 01 2016

Key Insight: Where individual Defendant informed his family that litigation related emails were to be preserved, but where at least three of eight ordered to be produced were lost, perhaps when Defendant?s wife transferred her emails to a new App, court found Defendant?s effort was ?grossly deficient? noting that defense counsel and Defendant had failed to impress upon the family the significance of the emails; addressing question of an appropriate sanction, Court cited Residential Funding Corp, 306 F.3d 99 (2d Cir. 2002), and ordered a ?permissive adverse inference? and payment of Plaintiff?s attorney?s fees and costs incurred in pursuing the issue

Electronic Data Involved: Emails from account used by multiple family members

Catagory:Case Summaries