Electronic Discovery Law – Page 10 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Hastings v. Ford Motor Co. (S.D. Cal. 2021)

Apr 02 2021

Key Insight: In litigation over product defect claim(s), Plaintiff filed a Motion to Compel Defendants to produce additional records pursuant to its discovery requests. The Motion centered around search terms that Plaintiff sought to compel Defendants to utilize in searching for responsive records. Reviewing specific Requests for Production, the Court found that they were overbroad and lacked relevance. Plaintiff’s Motion was denied, and Plaintiff was ordered to show why it (and counsel) should not have to reimburse Defendants’ for attorney’s fees and expenses in responding to the Motion.

Nature of Case: Contract Product Liability

Electronic Data Involved: Search Terms

Case Summary

Measured Wealth Private Client, Grp., LLC v. Foster (S.D. Fla., Mar. 2021)

Key Insight: Plaintiff filed a Motion to Compel Forensic Examination to permit inspection of the Defendant’s cellular phone. Specifically, the Plaintiff sought iMessages and text messages for a 12-month period. The Defendant asserted that the temporal scope of the messages sought was too broad, the messages could be obtained from other sources, and the examination of the phone for such a long time period was a “mere fishing expedition”.

The Court directed that the forensic examination proceed with an agreed upon independent expert to examine a forensic image of the phone with the Plaintiff paying for the initial fees and costs for doing so. In such an image was not feasible, then the expert was to acquire as much data as possible from the device to allow for the recovery of the iMessages and text messages. The Court noted that the Defendant had been “obstructionist” in responding to Plaintiff’s initial discovery requests (which sought the above described messages), and expressed concern about the Defendant providing complete production of all requested documents in the litigation.

Nature of Case: Employment

Electronic Data Involved: Text Messages, iMessages, Cellular Phone

Case Summary

Doubleline Capital LP v. Odebrecht Fin., Ltd. (S.D.N.Y. 2021)

Mar 30 2021

Key Insight: Plaintiffs sought sanctions against defendants for intentionally destroying the encryption keys needed to access its internal “shadow” accounting system used to track illicit bribe payments to secure construction contracts. The court imposed sanctions against defendants under Rule 37(e)(1) to allow the jury to consider evidence surround the destruction of the encryption keys but declined to impose a mandatory adverse inference requested by plaintiffs under Rule 37(e)(2) because the moving party did not demonstrate that defendant destroyed the electronic evidence “with the intent to deprive the other party of the information’s use in the litigation” – with the required intent to be established by clear and convincing evidence.

Nature of Case: Securities Fraud

Electronic Data Involved: Encryption Keys

Case Summary

Brown v. SSA Atlantic (S.D. Ga. 2021)

Mar 16 2021

Key Insight: Defendant filed a motion to compel and for sanctions regarding plaintiff’s failure to identify and produce Facebook account information. Plaintiff had deleted or deactivated and failed to disclose the existence of his multiple Facebook accounts. The court found that the ESI was not “spoliated” since plaintiff only deactivated, not deleted, his Facebook accounts. However, the court found plaintiff’s conduct “troubling” and ordered plaintiff to produce account data for each Facebook account he maintains or maintained, whether deactivated or not, and if defendant finds that substantive information was lost or destroyed, it could renew its motion for spoliation sanctions.

Nature of Case: Personal injury

Electronic Data Involved: Facebook

Case Summary

Copenhaver v. Cavanga Group S.p.A Omeca Division (D. Mont. 2021)

Mar 12 2021

Key Insight: If a motion to compel is granted, the party whose conduct necessitated the motion is required to pay reasonable expenses in making the motion, including attorney fees. However, payment cannot be ordered if “the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action.”

Nature of Case: Products Liability

Electronic Data Involved: Email, Electronic Documents Generally

Case Summary

Mahboob v. Educational Credit Management Corp. (S.D. Cal. 2021)

Mar 01 2021

Key Insight: Plaintiff brought a (potential) class action lawsuit against Defendant for invasion of privacy based on Defendant recording phone calls without the consent of the other party. After bringing the suit, Plaintiff discovered that the call data and recordings had been deleted. Plaintiff filed a Motion for Sanctions against Defendant were both forms of ESI based on intentional spoliation of evidence.

Defendant had placed a legal hold on requested data but also failed to suspend its data retention policies. Plaintiff’s Motion for Sanctions regarding deleted call data was purportedly delayed by Plaintiff because the litigation was stayed for approximately two years while an appeal was pending. The Court found that Plaintiff’s Motion for Sanctions regarding the deleted call data was untimely, and therefore, denied it on such grounds.

The Court partially granted and denied Plaintiff’s Motion for Sanctions regarding the deleted call recordings, finding that Defendant should not have deleted the call recordings, but did not do so intentionally. Plaintiff was awarded attorney’s fees for having brought the Motion, but the Court declined to impose a sanction of a jury instruction regarding spoliation because the call recordings per se were not relevant to proving Plaintiff’s case.

Nature of Case: Invasion of Privacy

Electronic Data Involved: Phone Calls, Phone Call Data

Case Summary

Cary v. Ne. Ill. Reg’l Commuter R.R. Corp. (N.D. Ill. Feb. 22, 2021)

Feb 22 2021

Key Insight: Court granted, in large part, plaintiff’s motion to compel ESI, requiring defendant to disclose data sources that may contain relevant ESI and refused to impose an “arbitrary limit of five or seven custodians” requested by defendants given the number of people identified as having potentially relevant information in their initial disclosures. The court urged the parties to agree upon search terms to less the burden of ESI searches and revisit an agreed time period in light of the court’s memorandum and order, rather than take “absolute line-in-the-sand positions” (citing Standing Order Relating to the Discovery of Electronically Stored Information at Principle 1.02 (Cooperation)). The court denied plaintiff’s request to produce the entire contents of her work email, finding the blanket request overbroad on its face.

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Case Summary

Benebone LLC v. Pet Qwerks, Inc. (C.D. Cal. Feb. 18, 2021)

Feb 18 2021

Key Insight: Court granted defendants’ motion to compel plaintiff to produce Slack messages used as part of its internal business communications. Despite the potentially 30,000 Slack messages to review, the court found compelling the testimony from defendants’ forensic expert who stated there are a number of tools and software vendors that have streamlined review and production of Slack messages. Further, searches could be limited to certain Slack channels, users and custodians to very streamline the volume of messages for review. Thus, “requiring review and production of Slack messages by Benebone is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional to the needs of this case – if the requests and searches are appropriately limited and focused.”

Nature of Case: Intellectual property

Electronic Data Involved: Slack messages

Case Summary

Optrics Inc. v. Barracuda Networks, Inc. (N.D. Cal. Feb. 4, 2021)

Feb 04 2021

Key Insight: The Plaintiff in litigation over claims of trademark infringement, unfair competition and breach of contract failed to preserve and destroyed discoverable electronic data, and similarly, failed to prepare for 30(b)(6) depositions. Moreover, there were repeated delays (and time extensions) in Plaintiff responding to Defendant’s discovery requests. In doing so, the Plaintiff repeatedly disobeyed discovery orders issued by the Court.

The litigation settled while discovery was pending. The Defendant moved for sanctions against the Plaintiff for its conduct in discovery, and the Court, pursuant to FRCP 37(b), awarded sanctions against Plaintiff and its counsel, jointly and severally. Plaintiff’s former counsel subsequently claimed that it should not be held liable for the sanctions because it was unable to control the conduct of its client in responding to discovery order(s) and requests.

Nature of Case: Intellectual Property, Trademark Infringement, Contracts, Unfair Competition

Electronic Data Involved: Email, Electronic Files, Hard Drives.

Case Summary

Liadis v. Suburban Mobility Authority for Regional Transportation (Mich. Ct. App. January 28, 2021)

Jan 28 2021

Key Insight: The trial court ordered plaintiff to produce her laptops to defendant’s computer forensic expert. In the days prior to turning over the laptops, about 41,000 unidentified files were deleted by a computer program called “CCleaner.” Defendant moved to dismiss plaintiff’s complaint based on spoliation and discovery violations and the trial court denied defendant’s motion. The Court of Appeals agreed with the trial court and found that plaintiff did not intentionally destroy evidence and it was unlikely that any evidence was in fact lost. Both sides’ forensic experts found the CCleaner was installed before the complaint was filed and was set to run automatically. The court was open to a lesser sanction than dismissal such as an adverse jury instruction should defendant request one.

Nature of Case: Personal Injury

Electronic Data Involved: Laptop files

Case Summary