Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Plaintiff failed to respond to discovery requests. Plaintiff also used data wiping software hours before turning computer over for forensic examination. Defendant granted default judgment.
Nature of Case: Repossession/Ownership
Electronic Data Involved: Files on Computer
Keywords: default judgment, contempt, data wipe
Key Insight: Responding party’s ability to choose search methods is not above rule of proportionality.
Nature of Case: Breach of Contract/Breach of Fiduciary Duty Action
Electronic Data Involved: Personal and business electronic devices
Keywords: “search criteria” “access[ability]” “uncovered evidence” “limit[ing] searches” “shielding” “Sedona”
Key Insight: allowing additional discover re topics discussed during deposition
Nature of Case: improper termination
Electronic Data Involved: documents and emails
Keywords:
Identified Local Court Rule(s): 37.1, 37.3
Hyles v. New York City, 10 Civ. 3119 (AT)(AJP) (S.D.N.Y. Aug. 1, 2016)
In this case, the court addressed the question of whether the City could be “forced” to use technology assisted review (predictive coding) to identify discoverable information when the City itself preferred to use keyword searching. “The short answer [was] a decisive ‘NO.’”
Fulton v. Livingston Fin., LLC, No. C15-0574JLR, 2016 WL 3976558 (W.D. Wash. July 25, 2016)
In this opinion, the court imposed sanctions for counsel’s misrepresentations of law and fact, including his citation to caselaw analyzing outdated standards under Fed. R. Civ. P. 26(b)(1), which was substantially affected by the December 2015 amendments. Calling counsel’s reliance on caselaw applying outdated standards “inexplicable” and “inexcusable” where the “December 1, 2015 amendments to Federal Rule of Civil Procedure 26(b)(1) ‘dramatically changed’ what information is discoverable,” the court ultimately imposed monetary sanctions (payment of Plaintiff’s fees and costs for defending the at-issue motion) and ordered counsel to supply “senior members” of his firm with the “offending brief” with the explanation that “the court is entering sanctions . . . for quoting provisions of the civil rules that are badly out of date, and also making direct misrepresentations to the court.” Declining to also require the attorney to report the sanction on future pro hac vice applications, the court did order that if a federal court threatened or imposed sanctions on the attorney at any time in the next five years, the attorney must “immediately disclose to that court the sanctions imposed by this court by providing that court with a copy of this order and the offending briefing.”
Key Insight: lost evidence, data preservation
Nature of Case: breach of contract
Electronic Data Involved: destroyed electronic records of experts
Keywords: Case dismissal applicable only in extreme circumstances, defensible collection
Key Insight: Discovery sanctions motion.
Nature of Case: Workplace discrimination.
Electronic Data Involved: Employment records including personnel files of supervisors and documents regarding performance of other employees.
Keywords: Failure to preserve, search terms, motion to compel.
Key Insight: If a party cannot show that destruction of video footage was intentional, then sanctions can be awarded unless it can be shown that the destroyed evidence would be relevant.
Nature of Case: grocery store slip and fall
Electronic Data Involved: surveillance camera footage
Keywords: video surveillance, spoliation, intentional destruction of evidence
Key Insight: facebook information discovered after award was not allowed because Defendant could have developed information earlier and failed to do so.
Nature of Case: Personal Injury
Electronic Data Involved: Social Media
Keywords: post-judgment motion; new evidence; social media
In re a Warrant to Search a Certain E-mail Account Controlled & Maintained by Microsoft Corp., No. 14-2985 (2d Cir. July 14, 2016)
In this case, Microsoft Corporation appealed orders from the United States District Court for the Southern District of New York denying its motion to quash a warrant issued under § 2703 of the Stored Communications Act and holding Microsoft in contempt for “refusing to execute the Warrant on the government’s behalf.” The warrant directed Microsoft to “seize and produce the contents of an e-mail account that it maintains for a customer who uses the company’s electronic communications services.” Although Microsoft produced the relevant customer’s non-content information which was stored in the United States, it refused to access and import data that was stored and maintained in Ireland.
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