Case Summaries – Page 95 – Electronic Discovery Law

Ferrara Bros. Bldg. Materials Corp. v. FMC Constr. LLC, 54 Misc.3d 529 (N.Y. Sup. Ct. 2016)

Dec 01 2016

Key Insight: Plaintiff, arguing Defendant?s contract was backdated, moved for sanctions after Defendant discarded computers (2 years after the action commenced) containing native information and system metadata for the contract at issue. The contract?s creation date was at issue in this case and Defendant had not indicated that it preserved the metadata before discarding the computers (which was not a regular or automatic event but rather a ?curiously fortuitous occurrence?). In considering sanctions, the court concluded that Defendant?s submission of an affidavit indicating that the computers were replaced and discarded did not ?rebut the presumption that Casa was negligent, even grossly negligent? and found that a negative inference at trial would be ?sufficient to strike a balance between the need to ameliorate any prejudice related from the destruction of the computer system, and the absence of demonstrable willfulness ??

Nature of Case: Breach of contract

Electronic Data Involved: Metadata

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

FTC v. Directv, Inc., No. 15-cv-01129-HSG (MEJ), 2016 WL 3351945 (N.D. Cal. June 9, 2016)

Dec 01 2016

Key Insight: Following the parties? court-ordered meet and confer to achieve proportionality in Defendant?s requests for production of complaints from FTC customers regarding Defendant?s competitors, Defendant reduced the number of competitors about which it sought information from 10 to 3, but court also approved Plaintiff?s proposal to produce only a random sampling, even from the reduced list of competitors, where the proposal ?more closely comport[ed] with Rule 26?s demand for proportionality? noting that the relevance of the at-issue materials was ?largely speculative?

Electronic Data Involved: Customer complaints submitted to FTC re: Defendant’s competitors

Mid. Am. Sols. LLC v. Vantiv, Inc., No. 1:16-mc-2, 2016 WL 1611381 (S.D. Ohio April 4, 2016)

Dec 01 2016

Key Insight: Court denied motion to compel production of at-issue data in ?condensed format? where Plaintiff originally requested and was provided with the data in it its ?original and unaltered format? and where the requested re-production was not proportional to the needs of the case because relevant evidence had already been provided; Court denied request for inspection to test accuracy of data produced where Plaintiff had not yet taken full advantage of the data in hand (by failing to take advantage of certain Excel functions) and thus had no basis for questioning the accuracy, thus rendering an inspection out of proportion to the needs of the case

Nature of Case: Breach of contract, fraud and related claims

Electronic Data Involved: ESI

GN Netcom v. Plantronics, Inc., No. 12-1318-LPS, 2016 WL 3792833 (D. Del. July 12, 2016)

Dec 01 2016

Key Insight: Where a senior executive deleted massive amounts of email and instructed others to do the same despite a duty to preserve and the company?s issuance of a litigation hold, the court indicated that the company?s efforts did not absolve it of all responsibility for the failures of a member of its senior management (and noted the company?s own bad conduct in litigating the deletion issue, including its initial refusal to disclose the identity of its forensic expert) and concluded that reasonable steps were not taken to preserve and found that the deletions were in bad faith and prejudicial to the Plaintiff and imposed sanctions including monetary sanctions in the form of reasonable fees and costs, punitive sanctions in the amount of $3 million and a permissive adverse inference

Nature of Case: Antitrust

Electronic Data Involved: email

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

Yeti Coolers, LLC v. RTIC Coolers, LLC, No. A-15-CV-597-RP, 2016 WL 6916944 (W.D. Tex. Nov. 11, 2016)

Dec 01 2016

Key Insight: Where Defendant resisted searching certain emails arguing undue burden and that it was unlikely that responsive emails would be found but where no evidence of burden was submitted, where not even a cursory search of the emails was undertaken and where there were examples of the sorts of email sought produced from other employees, the court ordered Defendant to conduct the requested search; similarly, where Defendant offered no evidence of the alleged burden to review and produce the at-issue call recordings, where Plaintiff offered to bear the full cost of transcribing the messages, and where the court determined that the likelihood that the calls would be privileged was low, the court ordered Defendant to produce the raw audiofiles of its customer service calls and voicemail; notably, at the outset of its analysis the court noted that at least 10 attorneys had appeared for each party and that it was ?apparent that the issues at stake are significant,? including posing an ?existential risk? to Defendant and therefore concluded that ?any proportionality argument has a high bar to clear to be successful?

Nature of Case: Trademark infringement

Electronic Data Involved: Customer service emails, call recordings

Whitesell Corp. v. Electrolux Home Prods., Inc., NO. CV 103-50, 2016 WL 1317673 (S.D. Ga. Mar. 31, 2016)

Dec 01 2016

Key Insight: Where promised emails were not produced but Defendant ultimately produced all documents relevant to the alleged spoliation, including ?preservation communications to document custodians, a list of custodians who were searched, the search terms used to conduct the search, and project documents and materials relating to such searches,? and also submitted a representative for an extensive Rule 30(b)(6) deposition, the court found Plaintiff?s request to compel production of ?every privileged document described as concerning data collection?[wa]s overly broad, unduly burdensome and ha[d] not been shown to relate to the issue at the forefront of this entire exercise?the missing Leon emails? despite acknowledging that ?otherwise privileged documents may be discoverable upon a preliminary showing of spoliation.?

Electronic Data Involved: Information related to preservation efforts, etc. where Plainitff alleged spoliation by Defendant and sought to compel production of privileged information

Marshall v. Dentfirst, P.C., No. 1:14-cv-2421-WSD, 2016 WL 1222270 (N.D. Ga. Mar. 24, 2016)

Dec 01 2016

Key Insight: Plaintiff seeks sanctions for Defendant allegedly failing to preserve ESI including browsing history, emails and pretreatment documents on Plaintiff?s work computer. The court quotes Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga. Ct. App. 2012), ?it is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party.? Plaintiff failed to show that the alleged spoliated information existed at the time Defendant reasonably could have anticipated litigation but that the Defendant failed to preserve it. The court continued its analysis, finding that ?even if the evidence existed at the time Defendant had a duty to preserve it,? Plaintiff failed to show prejudice (which could have been mitigated through depositions) or bad faith on the part of Defendant. The court denied Plaintiff?s motion.

Electronic Data Involved: Internet browsing history, emails

McQueen v. Aramark Corp. – 201611 (D. Utah, 2016)

Nov 29 2016

Key Insight: Sanctions imposed after defendant’s failure to preserve relevant ESI after receiving a preservation letter from plaintiff.

Nature of Case: Wrongful death.

Electronic Data Involved: ESI work orders and related paper records.

Keywords: Defendant acted with gross negligence, but without intent to deprive the plaintiff of the information’s use in the litigation.

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