Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Citation to Rule/caselaw that omits consideration of “proportionality” is reckless and sanctionable.
Nature of Case: Fair Debt Collection Practice Act (FDCPA) Action
Electronic Data Involved: Medical records
Keywords: “misstate[ment] [of] the law” “outdated caselaw” “recklessly misrepresented” “medical condition”
Key Insight: Sanctions for attorney’s fees are warranted when computer files are deleted (even if they are recovered) and when a phone is recklessly lost in a “palpably suspicious” incident.
Nature of Case: Corporate management disputes between co-founders
Electronic Data Involved: cell phone contents, computer files
Keywords: spoliation, palpably suspicious, lost phone, ineffective spoliation, reckless failure to preserve
Key Insight: if images of hard drives is sufficient prodcution of the hard drives themselves
Nature of Case: Fraud, conversion of instruments, failure to exercise ordinary care
Electronic Data Involved: all computers midwest obtained and the information on those computers at the time they were obtained
Keywords: hard drives, forensic imaging
Labrier v. State Farm Fire & Cas. Co., No. 2:15-cv-04093-NKL, 2016 WL 2689513 (W.D. Mo. May 9, 2016)
Upon Defendant’s refusal to provide Plaintiff with a list of data fields from two proprietary databases or to allow remote access, the Special Master ordered Defendant to respond to written interrogatories meant to provide the information sought by Plaintiff regarding putative class members and damages. Addressing Defendant’s objection that the discovery (i.e., responding to written interrogatories) was not proportional to the case, the District Court determined that the Special Master had not abused his discretion, reasoning in part that “[a] litigant cannot keep its own system secret and then refuse to gather the information itself.”
Key Insight: Predictive coding may be used to conserve time and expense where e-discovery expertise applied
Nature of Case: Embezzlement/Fraudulent Transfers Action
Electronic Data Involved: Backup storage tapes of exchange server containing tax-related information
Keywords: “computer-assisted review [tools]” “privileged or confidential information” “universe of documents”
Key Insight: Absent a search warrant, the Government may not turn a citizen’s cellphone into a tracking device.
Nature of Case: Drug Trafficking
Electronic Data Involved: cell site location information, cellphone location
Keywords: pings, cell phones, CSLI, cell site, pen register information
Key Insight: Plaintiff requested discovery from defendants parent company through defendant. Ability to obtain and control tests failed and motion was denied.
Nature of Case: nuisance, negligence
Electronic Data Involved: Various Discovery
Keywords: ability-to-obtain, control
Key Insight: Plaintiff was arrested while police pursuing his brother. Videos from car were mis-labeled and therefore destroyed. Plaintiff could not show bad faith, so no adverse inference instruction.
Nature of Case: civil rights
Electronic Data Involved: Police Car Videos
Keywords: adverse inference; sanctions; bad faith
Sunderland v. Suffolk Cty., No. CV 13-4838 (JFB)(AKT), 2016 WL 3264169 (E.D.N.Y. June 14, 2016)
In this civil rights action, the parties agreed upon search terms to identify responsive material but did not agree regarding the propriety of searching the Individual Defendants’ personal computers and email accounts. Concluding that responsive information located in the Individual Defendants’ personal repositories was within the scope of discovery, the court granted Plaintiff’s motion to compel the requested searches.
Key Insight: Sanctions for failure to preserve. Plaintiff did not issue a litigation hold until 23 months after reasonable anticipation of litigation.
Nature of Case: Legal malpractice
Electronic Data Involved: ESI destroyed under plaintiff’s record destruction policies: Backup tapes, routine deletion of emails, erasure of hard drives/email accounts.
Keywords: Preservation, spoliation sanctions, adverse inference charge, litigation hold.
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