Case Summaries – Page 93 – Electronic Discovery Law

LBI, Inc. v. Sparks, No. KNLCV, 2016 WL 351850 (Conn. Super. Ct. Jan. 4, 2016)

Dec 01 2016

Key Insight: Court declined to find ESI ?not reasonably accessible? because of the alleged cost of production where the case at issue was worth $4.5 million and thus the alleged costs did not appear ?sufficiently disproportionate,? where the defendant did not allege a lack of resources, and where defendant had a ?significant interest? in performing the discovery work in a manner that controlled costs but made two exceptions as to documents that would need to be culled and separately recoded and restored before they could be searched and as to documents that needed to be converted to a searchable format to determine tier potential relevance; court ordered parties to confer re: production protocol and cost shifting

Electronic Data Involved: ESI

In re Ex Parte Application of Global Energy Horizons Ltd., No. 14-3180, 2016 WL 1657889 (3d Cir. Apr. 26, 2016)

Dec 01 2016

Key Insight: Third Circuit affirmed denial of Global Energy Horizon?s motion to compel reasoning that the District Court was ?on firm ground? in determining the burden imposed upon the non-party would ?likely have been intrusive and burdensome in violation of Rule 45 despite Global?s offer to pay for reasonable cost? where responding to the subpoena seeking ?all communications between [the non-party?s] 400 to 450 employees? and another entity and any financial documents relating to certain technology would require that each employee be interviewed and their hard drives be copied and reasoning that the District Court was reasonable in deciding not to modify the subpoena where the non-party had already ?spent thousands of dollars and substantial time? responding to prior requests; Circuit Court also affirmed lower court?s finding that non-party was under no duty to preserve emails where the record ?did not lead the court to conclude? that the non-party ?should have known that litigation was imminent? and ?Global never sought a litigation hold on [the non-party?s] electronically stored information?

Electronic Data Involved: ESI

Hausman v. Holland Am. Line-U.S.A., No. CV13-0937 BJR, 2015 WL 51273 (W.D. Wash. Jan. 5, 2016)

Dec 01 2016

Key Insight: Judgment vacated and new trial ordered for deliberate spoliation of relevant emails revealed by credible witness after original trial

Nature of Case: Personal injury

Electronic Data Involved: Emails

Camesi v. Univ. of Pittsburgh Med. Ctr., —Fed. Appx.—, 2016 WL 7402982 (3d Cir. Mar. 21, 2016)

Dec 01 2016

Key Insight: Court indicated that it was “not readily apparent what ESI activities the charges at issue cover[ed], or how th[ose] activities constitute[d] either of the two applicable types of taxable costs identified in Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., 674 F.3d 158 (3d Cir. 2012) and, following an extensive discussion of the reasoning and findings in Race Tire, indicated that ?the highly technical nature of the services simply does not exempt parties who seek to recover their electronic discovery costs under ?1920(4) from showing that the costs fall within the subsection?s limited allowance for ?the cost of making copies of any materials?? and vacated and remanded the case, suggesting that the court consider an evidentiary hearing or taking additional evidence to make its decision

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: Taxable Costs

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)

Mazzei v. Money Store, —Fed. Appx.—, 2016 WL 3902256 (2d Cir. July 15, 2016)

Dec 01 2016

Key Insight: District court did not abuse discretion in declining to impose an adverse inference for failure to preserve ESI in an accessible format and instead awarding costs and attorneys fees where the at issue system “contained only ‘tangential information'” and where Plaintiff failed to seek discovery from other sources; Circuit court’s analysis noted recently amended Rule 37(e)’s required finding of intent to impose an adverse inference and that the District Court “specifically found that defendants did not act with such intent”

Nature of Case: Class action: breach of contract

Electronic Data Involved: ESI in third party custody but under control of defendants

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

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

Okada v. Whitehead, No. SACV 15-01449-JLS (KESx), 2016 WL 9448484 (C.D. Cal. June 16, 2016)

Dec 01 2016

Key Insight: Where Defendant explained that certain emails were not produced because he lost access to the account which subsequently expired and thus the emails were not in his possession custody or control, the court concluded that the duty to preserve was triggered prior to the expiration of the account by the filing of a separate lawsuit involving the same at-issue property in which the parties to this case were codefendants and explained in footnote that it could locate no case law limiting the duty to preserve to an adversary as opposed to all parties to litigation and noted that the duty to preserve ?may carry over to subsequent lawsuits involving the same subject matter?; finding the spoliation was prejudicial but not intentional, the court ordered the jury be informed of the failure to preserve, but not instructed to presume anything about the content of the emails

Nature of Case: Breach of Settlement Agreement

Electronic Data Involved: e-mail

Kissing Camels Surgery Center, LLC v. Centura Health Corp., No. 12-cv-03012-WJM-NYW, 2016 WL 277721 (D. Colo. Jan. 22, 2016)

Dec 01 2016

Key Insight: Where Plaintiffs objected to Defendants? ?duplicative? requests and claimed they had already produced responsive documents but provided Defendants with no guidance as to where such documents could be found within the voluminous production, the court acknowledged that it would ?ordinarily? conclude that Plaintiffs had no obligation to identify responsive documents but, citing the volume of data at issue, the ?asymmetry of information regarding the production between Plaintiffs,? the time the case had been pending, and the fact that additional discovery would be required, the court concluded that Plaintiff should provide additional information and ordered that Defendants would be permitted to identify ten categories of requested documents that Plaintiffs claimed to be duplicative and that Plaintiffs must then identify documents responsive to those requests

Electronic Data Involved: ESI

Catagory:Case Summaries