Electronic Discovery Law – Page 64 – Legal issues, news and best practices relating to the discovery of electronically stored information.

CP Salmon Corp. v. Pritzker, —F. Supp. 3d.—,No. 3:16-cv-00031-TMB, 2017 WL 744022 (D. Alaska Feb. 24, 2017)

Dec 01 2017

Key Insight: Applying Fed. R. Evid. 502, court found Defendants? inadvertent inclusion of privileged information in the Administrative Record did not waive privilege where declarations of persons with ?sufficient personal knowledge? established the inadvertence of the inclusion where, in light of the multiple levels of review of the documents and the relevant circumstances including the ?sheer number of pages and compressed timeframe,? the court found Defendant had undertaken reasonable steps to prevent disclosure, and where Defendants took action to rectify the error within three weeks of the disclosure

Nature of Case: Administrative law

Electronic Data Involved: Administrative Record

B&R Supermarket, Inc. v. Visa, Inc., No. 16-cv-01150-WHA (MEJ), 2017 WL 235182 (N.D. Cal. Jan. 19, 2017)

Dec 01 2017

Key Insight: Court found requested data was relevant to class certification but, where Defendant indicated that Plaintiff?s requests ?encompass [ ] tens of millions of transactions and weekly data for each of the more than 6 million merchants that accept American Express? that ?is scattered over at least 6 databases at American Express,? court agreed with Defendant that the requested discovery created an ?enormous burden? and therefore ordered sampling, in a size to be agreed upon by the parties at a court-ordered meet and confer

Nature of Case: class action

Electronic Data Involved: Chargeback-related data (ESI)

Rockman Co. (USA), Inc. v. Nong Shim Co., Ltd., No. 13-cv-04115-WHO, 2017 WL 275405 (N.D. Cal. Jan. 19, 2017)

Dec 01 2017

Key Insight: In US litigation, court found no duty to preserve was triggered by Korean Fair Trade Commission?s investigation of price-fixing in Korean markets absent case law establishing such a possibility (i.e., that a foreign investigation of domestic markets could trigger a duty to preserve in the US because litigation could someday be commenced) or any related complaints or lawsuits filed in the US or evidence that the price fixing conspiracy was directed at the US or that the KFTC?s investigation extended to impacts in the United States

Nature of Case: Antitrust

Electronic Data Involved: ESI

Knight Capital Partners Corp. v. Henkel AG & Company, KGaA, No. 16-12022 (E.D. Mich. Nov. 30, 2017).

Nov 30 2017

Key Insight: German defendant objected to discovery on basis of German Data Protection Laws. Court ruled that legal claim outweighed data protection.

Nature of Case: Tortious interference with business, breach of non-disclosure

Electronic Data Involved: German Business Records

Keywords: foreign company, data protection

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Holick v. Burkhart ( No. 16-1188-JTM (D. Kan. Nov. 30, 2017), 2017)

Nov 30 2017

Key Insight: Plaintiff did not specify whether any documents were being withheld in the course of making objections to discovery motions

Nature of Case: libel, assault, slander

Electronic Data Involved: documents and communications posted or stored on social media, e-mails

Keywords: “facially overbroad”, “anti-abortion”, “nearly two-decade time frame”, “provide any responsive information for the past seven (7) years”

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Coward v. Forestar Realty, Inc., 4:15-cv-0245-HLM (N.D. Georgia, Rome Division, 2017)

Nov 30 2017

Key Insight: Plaintiffs unable to access password protected video camera offered hard drive to Defendants; Court held inaccessible videos were spoliated.

Nature of Case: property damage claim

Electronic Data Involved: videos

Keywords: spoliation, prejudice, sanctions, adverse inference, attorney’s fees

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Gottesman v. Santana, No. 16-cv-2902 JLS (JLB) (S.D. Cal. Nov. 29, 2017)

Nov 29 2017

Key Insight: statute of limitations, proportionality

Nature of Case: copyright infringement

Electronic Data Involved: financial information

Keywords: meeting of the minds, statute of limitations, undue burden, amount in controversy

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Winfield v. City of New York, No. 1:15-cv-05236-LTS-KHP (S.D.N.Y. Nov. 27, 2017)

Nov 27 2017

Key Insight: Methodologies behind TAR are privileged (especially the seed set), the court may also perform in camera review to determine the competency of TAR if necessary, poor TAR practices may allow opposing counsel to set parameters

Nature of Case: Fair Housing Act

Electronic Data Involved: Electronic documents

Keywords: TAR, FHA, discrimination, predictive coding, in camera review

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Washington v. Rounds, No. PWG-16-320 (D. Md. Nov. 27, 2017)

Nov 27 2017

Key Insight: Spoliation. Court ordered discovery to determine if failure to preserve relevant evidence, and if so, whether 37(e) sanctions are warranted.

Nature of Case: civil action under 42 U.S.C. s. 1983

Electronic Data Involved: prisoner surveillance video

Keywords: Spoliation, failure to preserve relevant evidence.

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