Electronic Discovery Law – Page 58 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Allstate Insurance Co. v. Papanek (No. 3:15-cv-240, 2018 (S.D. Ohio Jan. 5, 2018), 2018)

Jan 05 2018

Key Insight: whether there was accessibility problems or undue burden or cost associated with turning over phones and computers for forensic imaging; also, whether it was sufficient to have plaintiff’s employee’s conduct a search for responsive ESI

Nature of Case: breach of contract, tortious interference

Electronic Data Involved: e-mails, phone messages, physical computers and cellphones and their data

Keywords: “former business relationship”, “information may be discoverable even if not ultimately admissible into evidence”, “Allstate, however, agreed to produce responsive information within its custody”

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Landry v. Swire Oilfield Servs. (New Mexico District Court, 2018)

Jan 03 2018

Key Insight: Courts should be less involved in discovery dispute regarding ESI despite recent FRCP amendments

Nature of Case: Labor Standards Class Action

Electronic Data Involved: third party electronic payroll data

Keywords: FRCP 2015 amendments, electronically readable fomat

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GN Netcom, Inc. v. Plantronics, Inc., No. 12-1318, 2018 WL 273649 (D. Del. Jan. 3, 2018)

Jan 03 2018

Key Insight: former employee of defendant ordered coworkers to delete case critical emails, even after litigation hold.

Nature of Case: antitrust, Sherman Act

Electronic Data Involved: email

Keywords: 5 million dollar fee award, clear intent, spoliation, litigation hold, permissive adverse inference.

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Firefighter’s Retirement System, et al, v. Citco Group Limited, et al., No. 3:13-cv-00373-SDD-EWD (M.D. La. Jan. 3, 2018)

Jan 03 2018

Key Insight: Mass email to all employees of a company asking for information is not proportional, especially when custodians and search terms have already been established

Nature of Case: Securities (retirement fund investment loss)

Electronic Data Involved: Electronic documents, emails

Keywords: discovery, mass email, proportional, retirement,

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Par Pharm., Inc. v. Express Scripts Specialty Distribution Servs., Inc., No. 4:17MC510 RLW, 2018 WL 264840 (E.D. Mo. Jan. 2, 2018)

Jan 02 2018

Key Insight: motion to compel production of documents including confidential patient information

Nature of Case: patent infringement

Electronic Data Involved: database maintained by non-party

Keywords: undue burden and expense on a non-party, subpoena duces tecum

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Industrial Quick Search v. Miller (S.D.N.y, 2018)

Jan 02 2018

Key Insight: adequacy of attorney oversight of document production and failure to issue litigation hold

Nature of Case: legal malpractice, breach of contract

Electronic Data Involved: hard copy

Keywords: oral litigation hold, retention policy, spoliation, default judgment, compliance oversight

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Doe v. County of San Mateo (N.D. Cal., 2017)

Dec 29 2017

Key Insight: Without application of Rule 37(e), the court applies an adverse inference sanction.

Nature of Case: Civil Rights

Electronic Data Involved: security camera recordings

Keywords: Adverse inference, spoliation, sanctions, video

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Emerald Point v. Hawkins, 294 Va. 544, 808 S.E.2d 384 (Va. Dec. 28, 2017)

Dec 28 2017

Key Insight: Spoliation rule jury instruction for destruction of physical object inappropriate because no intention or bad faith present.

Nature of Case: Landlord Tenant Dispute over CO levels from furnace

Electronic Data Involved: No ESI, application of FRCP 37(e) for guidance

Keywords: ESI spoliation instructions, intentional loss or bad faith, application of FRCP 37(e) in state court

EEOC v. Jetstream, 878 F.3d 960 (10th Cir. Dec. 28, 2017)

Dec 28 2017

Key Insight: loss or destruction of documents and spoliation sanctions

Nature of Case: refusal to hire

Electronic Data Involved: destroyed notes (not specified to be electronic), Excel spreadsheet

Keywords: adverse inference instruction, Fed. R. Evid. 301, Hicks, EEOC

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Barbera v. Pearson Education, Inc., No. 16-cv-2533-JMS-DML (S.D. Ind. Dec. 28, 2017)

Dec 28 2017

Key Insight: spoliation, intent to deprive

Nature of Case: Title VII Sex Discrimination

Electronic Data Involved: e-mail

Keywords: sanctions, bad faith, intent to deprive, 37(e)(2), curative measures, 37(e)(1)

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