Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Deletion of emails at recommendation of email provider is not deletion with intent to destroy evidence, therefore terminating sanctions are overbroad
Nature of Case: Antitrust
Electronic Data Involved: Deleted emails
Keywords: Theatres, Cinemark, terminating sanctions, Bryan Cranston
It seems that predictive coding may be catching on in the UK. Not long ago, the English High Court approved the use of predictive coding for the first time in Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (Ch). In that case, the parties agreed to the use of predictive coding software and merely sought approval from the court. Now, The Lawyer (registration required) reports that the High Court has once again weighed in on the issue, this time to approve the use of predictive coding despite the apparent objection of at least one party. This is the first time such an order has been granted. While the details of the order and underlying disagreement have yet to be revealed, the result bodes well for parties seeking to rely on such technology in future.
Stay tuned to this space for more information as it becomes available.
Key Insight: Plaintiff threatened legal action, but failed to have it’s vendor stop automatic deletion and did not preserve recrods when email system changed. Defendant was prejudiced by this spoilation. Court allowed witnesses to testify to spoilation and potential contents of those communications.
Nature of Case: incentive programs and Robinson-Patman Act violations
Electronic Data Involved: internal and external communications
Keywords: spoilation; vendor
FiTeq Inc. v. Venture Corp., No. 13-cv-01946-BLF, 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016)
In this case, the court denied Plaintiff’s motion to “instruct jurors that they may presume Venture carried out or allowed the destruction of relevant evidence favorable to FiTeq” despite an executive’s deletion of potentially relevant emails where the messages were eventually recovered and produced and where Plaintiff failed to prove that other responsive documents existed or to establish that the ESI was not restored or replaced.
Key Insight: Adverse inference granted where physical evidence was lost.
Nature of Case: Marine
Electronic Data Involved: notebook/logbook
Keywords: adverse inference
Rhone v. Schneider Nat’l Carriers, Inc., No. 4:15-cv-01096-NCC, 2016 WL 1594453 (E.D. Mo. Apr. 21, 2016)
In this personal injury case, the court ordered Plaintiff to produce a “Download Your Info” report from Facebook, spanning from the date of the at-issue incident (June 2, 2014) through the present. Per Facebook’s Help Center (last accessed May 10, 2016) a report contains 70 categories of information, including: About Me, Chat (history), Friends, Followers, Logins, Logouts, Messages, Photos, Photos Metadata, Posts by You, Posts by Others, Post to Others, Removed Friends, Searches, Shares, Status Updates, and Videos.
Nat’l Football League Mgmt. Council v. Nat’l Football League Players Assoc., — F.3d —, 2016 WL 1619883 (2d Cir. Apr. 25, 2016)
On April 25, 2016, the Second Circuit reinstated (reinflated?) the four-game suspension previously imposed upon New England Patriots quarterback, Tom Brady, for his participation in what has come to be known as “Deflategate,” including the destruction of his cellular phone and its contents.
Key Insight: court allows keyword search of one database (agreed to by party) but denies search of three others deeming them disproportionate
Nature of Case: patent infringement
Electronic Data Involved: database
Keywords: keyword search, disproportionate,
Key Insight: anti spoliation notice to third party re fax transmission reports and meta data not reasonable without notice to party
Nature of Case: Telephone Consumer Protection Act (?TCPA?)
Electronic Data Involved: fax transmission reports
Keywords: fax meta data and automatic deletion
Key Insight: Adverse inference when Brady destroyed cell phone days and subsequently punished for non-cooperation before trial was proper
Nature of Case: Collective Bargaining Agreement
Electronic Data Involved: Cell phone data
Keywords: football, Tom Brady, deflategate, collective bargaining agreement,
Copyright © 2022, K&L Gates LLP. All Rights Reserved.