Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: if use of publicly available information provided by a source for profit can be restricted by the source of the information
Nature of Case: violation of computer fraud and abuse act.
Electronic Data Involved: publicly available information available on websites like linkedin
Keywords: public interest, publicly available data, preliminary injunction
Key Insight: work product protection does not apply to investigation or handling of underlying claim in a bad faith case.
Nature of Case: bad faith insurance claim
Electronic Data Involved: Insurance claim file including work product and possibly privileged documents
Keywords: work product, underlying claim, investigation, bad faith, privilege log
Key Insight: Failure to fully respond to discovery requests, inability to ensure the production was responsive to discovery requests
Nature of Case: wage-and-hour
Electronic Data Involved: electronic records
Keywords: false representation, attorneys’ fees, egregious
Key Insight: Source code
Nature of Case: False and Misleading representation in Advertising, Unfair competition at Common Law, Violation Of the New Jersey Consumer Fraud Act
Electronic Data Involved: Motion to Compel the Production of Source code
Keywords: Production of Cource Code
Key Insight: The court allowed a party to use a rolling basis ESI, and ruled that with the assistance of TAR, a few thousand documents could be reviewed in the next few weeks.
Nature of Case: Workplace discrimination (age)
Electronic Data Involved: Business documents/files
Keywords: Predictive coding, TAR, Technology assisted review,
Irth Sols. LLC v. Windstream Commc’ns LLC, No. 2:16-CV-219, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017)
In this case, despite the existence of a clawback agreement (not an order) indicating that “[i]nadvertent production of privileged documents does not operate as a waiver of that privilege,” the court found that privilege was waived by the inadvertent but “completely reckless” production of privileged materials … twice. In so concluding, the court rejected the notion that a clawback agreement always protects against waiver, regardless of its terms, and instead indicated its support for courts that have precluded protection from a clawback agreement when the disclosure was “completely reckless” and for a framework that allows a court to rely on Fed. R. Evid. 502(b) when a clawback agreement fails to provide sufficiently concrete terms.
Key Insight: Deletion of files, destruction of evidence.
Nature of Case: Alleged defendant use of plaintiff’s trade-secret information
Electronic Data Involved: computer images
Keywords: destruction of evidence, forensic examination
Key Insight: Documents in plaintiff’s girlfriend’s possession could not be compelled, because the girlfriend refused to produce them.
Nature of Case: Civil Rights action
Electronic Data Involved: documents held by third party
Keywords: practical ability test, proportionality, third party subpoena
Key Insight: Sanctions inappropriate because video was made available well before trial
Nature of Case: False arrest, excessive force
Electronic Data Involved: video
Keywords: lack of evidentiary support, surveillance video
Key Insight: Whether deleted ESI and destroyed notebooks were relevant and, if so, whether there is sufficient evidence to find that spoliation was intentional or resulted in prejudice; whether sanction of reasonable costs is appropriate
Nature of Case: contract dispute
Electronic Data Involved: deleted e-mail, deleted electronic records, hard-copy notebooks
Keywords: spoliation, sanctions, notebook, litigation hold, bad faith, prejudice, deleted, legal hold, negligence, retention policy, backups
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