Electronic Discovery Law – Page 5 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Europe v. Equinox Holdings, Inc. (S.D.N.Y. 2022)

Mar 21 2022

Key Insight: Plaintiff brought a motion for sanctions alleging defendants failed to preserve a key piece of evidence (the September 2019 managers’ schedule from the month when she was terminated) in her employment discrimination suit. The court concluded that defendants should have taken steps to preserve the schedule in December 2019 when plaintiff notified defendants that she intended to initiate litigation, and they failed to do so. The court noted that the harshest sanction of adverse inference was not appropriate because it did not appear by clear and convincing evidence that the failure to preserve the evidence was done in order to gain an advantage in the litigation. The court ordered that plaintiff could present to the jury that the September 2019 schedule was lost and defendants could not compare her lateness to other employees in September 2019 or argue that her co-workers’ lateness in September 2019 was less than hers.

Nature of Case: Employment Discrimination

Electronic Data Involved: Business Documents

Case Summary

Famulare v. Gannett Co., Inc. (D.N.J. 2022)

Mar 17 2022

Key Insight: The discovery dispute involved whether defendants are obligated to produce screenshots of certain computer generated reports from defendants’ computer program known as Salesforce. Salesforce maintains and memorializes various performance metrics of individual account executives. Plaintiff generated and printed some of her own performance metrics and seeks in discovery the same reports for certain other defendant employees for purposes of comparison. Defendants assert that the reports are not free-standing, fixed reports but are screenshots of the Salesforce dashboard and they cannot generate reports but can only provide her with the underlying historical data in Excel, which they already provided. The court affirmed the magistrate judge’s opinion, ruling that whether Salesforce is incapable of generating and printing the reports as they maintain it is would need to be determined by a Rule 30(b)(6) deposition. The functionality of the Salesforce data is the core issue in the motion and the court reiterated the magistrate’s sentiments that until the deposition is completed, the nature of the Salesforce program and its capabilities are unknown.

Nature of Case: Employment Discrimination

Electronic Data Involved: Screenshots

Case Summary

MasterObjects, Inc. v. Amazon.com, Inc. (N.D. Cal. 2022)

Mar 13 2022

Key Insight: Defendant filed a motion for sanctions based on violation of a prior discovery order and sought spoliation sanctions. The Magistrate Judge issued a report on the spoliation issue. Plaintiff’s law firm was attacked by hackers, which rendered files and mailboxes inaccessible without a recovery key set by the attackers. Both the FBI and the firm’s insurer advised the firm not to pay the hackers a ransom. The firm attempted to restore the data on its servers with some success but everything prior to the final months of 2016 has been lost. There were some printed copies of the archival copies of digital records but plaintiff’s counsel maintained it did not have a duty to keep a duplicate paper file of its digital records. The court noted that there was no evidence of any physical document (other than a copy of an electronically stored document) that was destroyed, and the spoliation doctrine does not require a party to maintain identical copies of documents. The court noted the data is not “lost” and exists on the hard drives and although access has been blocked, it can be accessed if a key is provided or a technological work-around is discovered. The court concluded there is no evidence the loss occurred because plaintiff’s firm failed to take reasonable steps to preserve it. Finally, the court found defendant could not establish prejudice and that there was an intent to deprive defendant of the evidence. It refused to apply a new kind of spoliation argument that plaintiff’s counsel’s firm “lost” its data because it refused to pay the ransom, finding “there is no logic or beneficial public policy in compelling a crime victim to pay ransom to a criminal in order to avoid being labeled a spoliator.”

Nature of Case: Intellectual Property

Electronic Data Involved: ESI

Case Summary

Aminov v. Berkshire Hathaway Guard Insurance Companies (E.D.N.Y. 2022)

Mar 03 2022

Key Insight: Defendant moved to compel plaintiff to produce for forensic examination the cell phone that recorded videos produced by Plaintiff. The court denied the motion, noting there must be good cause to order forensic examination when a party has already produced the electronic information sought and in native format. Defendant alleges there was a reason to believe metadata for the video was altered based on counsel’s own analysis using a free online metadata tool. After investigating the online metadata tool, including uploading a court document that did not contain any metadata, the court found that the tool shows an automatic message for every file that is uploaded to the website indicating that metadata “could have been changed or deleted” – something court noted “is hardly the thing on which one should base a motion to compel.”

Nature of Case: Breach of Contract

Electronic Data Involved: Cell phone

Case Summary

Hamilton v. Oswego Community Unit School District 308 (N.D. Ill. 2022)

Feb 25 2022

Key Insight: Plaintiffs sought a motion for sanctions based on spoliation of evidence based on defendants’ failure to preserve a photograph of their child’s bruise that was taken by the school nurse that led to a call to the DCFS hotline. The court found that defendants did not have a duty to preserve the photograph because it was not reasonably foreseeable the instant litigation would be forthcoming. At the time the nurse deleted the photo there was no indication that plaintiffs were contemplating litigation against the school for anything related to the nurse’s visit or the report to DCFS. As such, there was no duty to preserve the photo. Even if there was a duty to preserve the photo, the court found that plaintiffs were not prejudiced by its deletion.

Nature of Case: Civil Rights

Electronic Data Involved: ESI, Photographs

Case Summary

Emerson Creek Pottery v. Emerson Creek Events (W.D. Va. 2022)

Feb 18 2022

Key Insight: Plaintiff moved for spoliation sanctions against defendants relying on (1) an inadvertently disclosed email between defendant and his counsel discussing the preservation of emails, and (2) defendants did not produce a “mirror image” of the emails produced by third parties. Plaintiff contended the content of the email between defendant and his counsel is evidence that defendant failed to preserve ESI and defendant countered that it was part of a longer conversation between defendant and defense counsel about how defendants temporarily lost access to some of their emails during a server migration but later recovered them. The court denied plaintiff’s motion, finding that plaintiff failed to provide any evidence that defendants lost ESI and there was nothing to suggest that there were any additional emails that plaintiff had not received from defendants or third parties. If the court were to consider a remedy, the remedy requested by plaintiff was “draconian” and nearly the entirety of what defendants were expected to argue at trial, and the court would have to tailor a remedy to the particular discovery violation in question.

Nature of Case: Intellectual Property

Electronic Data Involved: Email

Case Summary

Arconic Corp. v. Novelis Inc. (W.D. Pa. 2022)

Feb 10 2022

Key Insight: The court denied plaintiff’s motion for recusal based on metadata in the court’s orders that suggested that the special master was the author of some of the court’s opinions in the case. Plaintiff claimed the author field on the metadata suggested the special master was the author of the court’s opinions but the court explained how this opinion was wrong. The author field of the metadata for a document created from a template will continue to reflect the name of the person who originally created the document unless that name is changed. The court did not change or remove the author field when using a template document that had previously been prepared in the case but acknowledged going forward it would revise the authorship data on its court orders as needed. Further, the court’s decisions demonstrate that the opinions and orders are those of the court, acting independently of the special master, based on the differences between the court’s decisions and the related R&Rs by the special master.

Nature of Case: Trade Secrets

Electronic Data Involved: Metadata

Case Summary

Consultus, LLC v. CPC Commodities (W.D. Mo. 2022)

Feb 04 2022

Key Insight: Plaintiffs argue that defendants’ claims of privilege should be overruled due to the crime-fraud exception. Defendants withheld emails claiming work product and attorney-client privilege. Plaintiffs have not argued that the emails are not covered by either the work product doctrine or the attorney-client privilege. The purpose of the crime-fraud exception is to assure that the “seal of secrecy” between lawyer and client does not extend to communications “made for the purpose of getting advice for the commission of a fraud or crime.” In order to avail itself of the crime-fraud exception, the party seeking disclosure must satisfy a threshold showing of “a factual basis adequate to support a good faith belief by a reasonable person that the [party asserting the privilege] was engaged in intentional fraud and communicated with counsel in furtherance of the fraud.” The court found that plaintiffs’ assertions do not satisfy the threshold showing as they amount to conjecture since there is no other evidence that the communications were made in furtherance of a crime or fraud.

Nature of Case: Antitrust

Electronic Data Involved: Emails

Case Summary

In re Diisocyanates Antitrust Litigation (W.D. Penn. 2022)

Jan 07 2022

Key Insight: This multidistrict litigation involves allegations that the defendants conspired to reduce supply and increase prices for methylene diphenyl diisocyanate (“MDI”) and toluene diisocyanate (“TDI”), chemicals used in the manufacture of polyurethane foam and thermoplastic polyurethanes. The parties filed competing motions to compel regarding the use TAR and search terms. Plaintiffs moved to compel an order requiring the defendants to use plaintiff’s proposed search terms, or alternatively, to establish a process by which disputed search terms could be adjudicated. The E-Discovery Special Master made a recommendation to deny the motions and directed the parties to his prior report and recommendation on the parties’ TAR protocols to address concerns he raised their regarding the parties’ methodologies.

Nature of Case: Antitrust MDL

Electronic Data Involved: ESI

Case Summary

Gunter v. Alutiiq Advanced Security Solutions, LLC (D. Md. 2021)

Dec 28 2021

Key Insight: Defendant alleged that Plaintiff altered the wording of text messages and fabricated a series of text messages. Plaintiff also failed to produce relevant text message and falsely testified that such messages did not exists which was proved by a later forensic review. The Court had serious doubts regarding the text messages at issue. Plaintiff has no explanation for why his cellphone contains some text messages but not others. For these reasons, the Court ruled the text messages could not be used as evidence and the cost of the forensic review of the cell phone would be shifted to Plaintiff. However, the case would not be dismissed as there was not the “clear evidence necessary to conclude that Plaintiff fabricated the text messages.”

Nature of Case: Employment Discrimination

Electronic Data Involved: Text Messages

Case Summary