Electronic Discovery Law – Page 11 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Holloway v. County of Orange (C.D. Cal. 2021)

Jan 20 2021

Key Insight: The court granted defendants’ motion for sanctions based on spoliation of evidence based on plaintiff’s deletion of his Facebook account. “Plaintiff had an obligation to preserve his Facebook account, he deleted the account with a culpable state of mind, and the account was relevant to Defendants’ claims.” The court further ordered that an adverse inference jury instruction was appropriate.

Nature of Case: Civil Rights

Electronic Data Involved: Social Media, Facebook

Case Summary

Cretacci v. Hare

Jan 20 2021

Key Insight: A party must explicitly request all possible remedies it seeks. Courts will not impose unrequested sanctions even if it determines lesser sanctions were warranted. Plaintiff only requested a default judgment sanction which requires that Defendants intentionally lost or destroyed data so it could not be used in litigation. Because there was no finding of intent, a default judgment sanction could not be issued. A lesser sanction of “measures no greater than necessary to cure the prejudice” could have been imposed because Plaintiff was prejudiced by the loss of ESI and there is no intent requirement. However, no sanctions were issued because such sanctions were not requested.

Nature of Case: Civil Rights

Electronic Data Involved: Video

Case Summary

DR Distributors v. 21 Century Smoking, Inc. (N.D. Ill. 2021)

Key Insight: The court granted plaintiff’s motion for sanctions but declined to find “intent to deprive” under Rule 37(e), instead applying Rule 26(g) for failing “to make a reasonable investigation to ensure that [defendant] provided all available responsive information and documents.” The court issued sanctions and curative measures under Rules 37(a), 37(b), 37(c) and 37(e)(1). This 256-page sanctions opinion arises from ESI issues beginning at the outset of protracted litigation involving infringement claims over similar trademarks for e-cigarettes. Defendants and their counsel were sanctioned for multiple failures to preserve and collect ESI, including: failure to preserve messages from web-based email and chat applications; failure to turn off auto-delete functions on messages; defense counsel’s failure to follow-up with written hold instructions to preserve relevant ESI and take steps to collect messages from web-based applications; defense counsel’s failure to perform custodial interviews to identify likely sources of ESI; defense counsel’s failure to understand that relevant emails may be found in both corporate and personal email and mistakenly believed that data within the web applications would be saved to corporate hard drives; failure to disclose the existence of relevant ESI; defense counsel offered false testimony about the existence of ESI; and defense counsel’s failure to supervise defendants in self-collected ESI.

Nature of Case: Trademark infringement (Lanham Act)

Electronic Data Involved: Email, Instant messages

Case Summary

Bruno v. Peak Resorts, Inc. (N.Y.A.D. Jan. 14, 2021)

Jan 14 2021

Key Insight: The trial court granted an adverse inference instruction and the appellate court affirmed, finding that plaintiff engaged in spoliation of evidence when he (1) posted a comment to a blog entry about trail conditions on the mountain on the date of his injuries and then later deleted the comment, and (2) belatedly produced Facebook posts relating to his injuries. Plaintiff failed to provide “accurate representations” regarding his posts. His deleted blog comment related to whether the ski trail where he sustained injuries was open or closed on the day of his accident and its subject matter went directly to defendants’ defenses.

Nature of Case: Negligence; Personal Injury

Electronic Data Involved: Blog Post

Case Summary

In re Valsartan N-Nitrosodimethylamine, Losartan, & Irbesartan Prod. Liab. Litig. (D.N.J. 2021)

Jan 08 2021

Key Insight: Defendant claimed that information sought by Plaintiff was discoverable. Plaintiff objected on the basis of confidentiality, and the Court struck Defendant’s confidentiality designations. Specifically, the Court rejected Defendant’s claims that the emails sought contained trade secret and proprietary information, and had the potential to cause it competitive harm. The Court ordered Defendant to use the it’s ruling as an example for dealing with similarly designated documents.

Nature of Case: Diversity, Product Liability

Electronic Data Involved: Email

Case Summary

Balderas v. Ill. Cent. R.R. Co. (N.D. Ill. Jan. 8, 2021)

Jan 08 2021

Key Insight:

Further discovery must be based on more than mere speculation or suspicion that additional documents exist. The moving party must make a case showing “it can be reasonably deduced that other documents exist[.]”

The Court was unable to reach a ruling regarding Plaintiff’s requested search terms due to insufficient information. While Defendants did reject the terms and did not provide alternatives, plaintiff did not say what the requested terms were or why they were rejected.

With regards to specific discovery requests, Defendants were ordered to search for and produce responsive documents. The Court noted “boilerplate” objections without further explanation are equivalent to making no objection at all and individual authorization to access electronic communications is not required when the individuals are parties to the case. Additionally, emails and texts messages party’s employee are a compelling form of evidence that can be particularly significant in litigation.

Nature of Case: Civil Rights, Employment Discrimination

Electronic Data Involved: Personnel Records, Business Records, Electronic Communications, Email, Texts, Voicemails, Instant Messages, Electronic Documents Generally

Case Summary

Charter Communications Operating, LLC v. Optymze, LLC (Del. Ch. 2021)

Jan 04 2021

Key Insight: Defendant committed serious misconduct sufficient to justify dismissal of its counterclaims under Rule 41(b). Defendant refused the reasonable request for native files exchanged via Microsoft Teams. Defendant produced individual emails containing each message. In this format, the messages could not be reassembled into complete conversations. Defendant was compelled to produce the native files which revealed extensive spoliation of evidence. Defendant edited numerous chat messages in an effort to hide instructions to employees to take actions that violated court orders. Because all of the unaddressed misconduct related to Defendant’s counterclaims, dismissal of those counterclaims with prejudice and award of fees and expenses is an adequate remedy.

Nature of Case: Breach of Contract

Electronic Data Involved: Instant message

Case Summary

Marine Depot, Int’l, Inc. v. James River Grp., Inc. (S.D. Fla. Dec. 30, 2020)

Dec 30 2020

Key Insight: Defendant asked the court to compel plaintiff to search its computers and servers for responsive documents and contended certain documents should exist and have not yet been produced. The court noted “Rule 34 is silent as to how a party must locate these responsive documents, and the measures a party must take in conducting its search.” Further, defendants offered no case law that would require plaintiff to search a location it had no reason to believe responsive documents would be located. Absent any factual basis to believe that additional search of plaintiff’s server is necessary or to rebut plaintiff’s sworn testimony that there are no relevant, non-duplicative documents stored there that have not already been produced, no further search was ordered and sanctions were not appropriate.

Nature of Case: Breach of contract

Electronic Data Involved: Email

Case Summary

In re Valsartan, Losartan, and Irbesartan Prods. Liab. Litig. (D.N.J. Dec. 2, 2020)

Dec 02 2020

Key Insight: Defendants violated the Court ordered ESI protocol when it unilaterally adopted a CAL platform without input from Plaintiffs. Defendants failed to timely disclose their intentions to use TAR and collaborate in good faith with Plaintiffs on the TAR platform to be used prior to implementation. Due to the cost and time required for a manual review, the Court permitted Defendants to do a TAR review of its non-responsive documents using the protocol previously negotiated but not finalized by the parties.

Nature of Case: Products Liability

Electronic Data Involved: Electronic Documents Generally

Case Summary

Laub v. Horbaczewski (C.D. Cal. 2020)

Nov 17 2020

Key Insight: Plaintiffs sought Slack messages and defendants claimed they did not have access to the messages because of its level of Slack plan. The court instructed plaintiffs to pursue the Slack messages through a third party subpoena and defendants objected to the overbroad scope of the subpoena. The court concluded plaintiffs “credibly argued” that the Slack messages “may be relevant to the issues involved in this case,” but found that the request was not proportional to the needs of the case under the second prong of Rule 26(b)(1) because: (1) The defendants did not have access to the messages and requiring them to produce the messages would impose an undue burden and expense, and (2) the messages would likely be cumulative because the record was “replete with evidence of Plaintiffs’ involvement” and plaintiffs “offer no evidence that the private messages contain any novel or noteworthy information that warrant compelling their production.”

Nature of Case: Breach of contract

Electronic Data Involved: Instant messages

Case Summary