Electronic Discovery Law – Page 13 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Oppenheimer v. Episcopal Communicators, Inc. (W.D. N.C. 2020)

Aug 14 2020

Key Insight: The litigation was over Defendant’s purported copyright infringement due to Defendant’s publishing of a copyrighted photograph on its website. Defendant served its first discovery requests on Plaintiff; Plaintiff provided an untimely response with a number of objections including attorney-client privilege (without a privilege log), and “boilerplate objections”. Defendant filed a Motion to Compel, which was granted. Plaintiff provided a supplemental response, however, Defendant filed an additional Motion to Compel, and also sought attorney’s fees for the Motion. Besides privilege, at issue was Plaintiff’s objection to the proportionality of Defendant’s discovery requests.

The Court did not find Plaintiff’s “boilerplate objections”, including proportionality, persuasive. And found that they lack specificity and/or merit. Plaintiff’s objection(s) of confidentiality on the grounds of settlement, proprietary business information was rejected. Similarly, the Court rejected the Plaintiff’s privilege objection(s) due to Plaintiff’s failure to provide a privilege log.

In summary, the Court found that Plaintiff’s assertion of boilerplate objections (and failure to provide a privilege log) consisted of grounds overruling all of his objections. The Court granted Defendant’s Motion to Compel, and similarly, ordered Defendant to provide it an estimate of the attorney’s fees spent on the Motion (for the purpose of awarding Defendant attorney’s fees).

Nature of Case: Intellectual Property, Copyright Infringement

Electronic Data Involved: Digital Photograph

Case Summary

Oppenheimer v. Episcopal Communicators (Western District of North Carolina, 2020)

Aug 14 2020

Key Insight: A non-moving party’s objections to discovery need to be more than boilerplate and must be specific

Nature of Case: Copyright infringement (DMCA)

Electronic Data Involved: Electronic documents generally

Keywords: Copyright, DMCA, photographs, Oppenheimer,

View Case Opinion

Integrated Communications & Technologies v.Hewlett-Packard Financial Services Company (D. Mass. Aug. 13, 2020)

Aug 13 2020

Key Insight: Spoliation had occurred, but no default judgment issued. Evidence regarding destruction was allowed, no testimony from plaintiffs regarding unpreserved ESI and adverse inference instruction.

Nature of Case: Breach of Contract

Electronic Data Involved: Emails and Computers

Keywords: adverse inference, sanctions

View Case Opinion

Maurice v. Allstate Insurance Co. (W.D. Wash. 2020)

Jul 28 2020

Key Insight: Defendant had a Motion to Compel Plaintiff to produce information and documents regarding physical and emotional injuries that she purportedly sustained during the accidents giving rise to litigation.

Among the information sought by Defendant were documents and information regarding the negative impact a motor vehicle accident on her social life, hobbies and activities. This included communications, emails, text messages, photographs, video and Facebook posts. Defendant’s Motion was granted, however, Defendant’s request for attorney’s fees and expenses was denied.

Nature of Case: Insurance Contract

Electronic Data Involved: Emails, Text Messages, Photographs, Video and Facebook Posts

Case Summary

Gross v. Chapman (N.D. Ill. July 28, 2020)

Jul 28 2020

Key Insight: Bride and groom called off their wedding after a dispute arose over whether it should be an “adults only” affair. The bride’s parents sued the groom’s parents claiming they were out over $100,000 in wedding costs. After defendants produced 5,000 text messages, the court declined to grant further discovery into the process surrounding how the text messages were collected. A large volume of ESI had already been produced at significant expense to defendants and plaintiff’s motion to compel was based on speculation— “discovery on discovery with no basis other than plaintiffs’ hopeful guess that there must be more texts” and was substantially out of proportion to the needs of the case.

Nature of Case: Invasion of Privacy

Electronic Data Involved: Text Messages

Case Summary

Brady v. APM Management, LLC (N.D. Ohio 2020)

Jul 28 2020

Key Insight: Plaintiff’s Motion for Sanctions was granted and denied in part. Defendants had failed to produce documents and comply with discovery obligations. The Court concluded that Defendants, but not Defendants’ counsel, had acted in bad faith by making misrepresentations, and issued monetary sanctions against Defendants and barred a previously pled defense. The Court denied Plaintiff’s request of a sanction of precluding Defendants from raising a new defense. Moreover, the Court declined to award fees and costs for Plaintiff’s Motion to Compel Defendants to produce financial records.

Nature of Case: Wrongful Termination, Family Medical Leave Act (“FMLA”), Americans with Disabilities Act (“ADA”)

Electronic Data Involved: N/A

Case Summary

Jul 28 2020

Key Insight: Court rejected additional discovery based off proportionality and discovery already produced. There was no additional proof of unproduced, relevant texts.

Electronic Data Involved: Text Messages

Keywords: additional discovery, proportionality

McMaster v. Kohl’s Department Stores, Inc. (E.D. Mich. 2020)

Jul 24 2020

Key Insight: The litigation was over purported employment discrimination based on age and/or disability. Plaintiff’s Second Motion to Compel specifically sought emails from an employee of Defendant for the purpose of establishing a pattern of age and/or disability discrimination. The Court found that the emails were relevant to the litigation, and chose a date range other than that request by the parties.

The larger disagreement between the parties was over the search terms to be utilized for finding the emails. The Court ordered the parties, if they could not agree on terms, to retain an expert to assist them, and if they still could not agree, to return to Court with the opinion of the expert. Plaintiff’s Second Motion to Compel was partially granted and partially denied.

Nature of Case: Employment Discrimination, Disability Discrimination, Wrongful Termination, ADA

Electronic Data Involved: Email

Case Summary

Alsadi v. Intel Corporation (D. Ariz. 2020)

Jul 17 2020

Key Insight: The meaning of ESI is expansive, includes any type of information stored electronically, and is not limited to data stored on a computer system. Rule 37(e), not inherent authority, is the legal standard for determining whether and what sanctions are appropriate for the loss of discoverable ESI. A negative inference sanction with only be imposed if the spoliating party intentionally lost or destroyed data so it could not be used in litigation.

Nature of Case: Tort

Electronic Data Involved: Detector Device Data

Case Summary