Electronic Discovery Law

Legal issues, news and best practices relating to the discovery of electronically stored information.

1
Harleysville Insurance Co. v. Holding Funeral Home, No. 1:15cv00057 (W.D .Va. Feb. 9, 2017)
2
D.M. v. Wesley Med. Ctr. LLC (D. Kan, 2019)
3
Commonwealth v. Jones, SJC-12564 (Mass. Mar. 6, 2019)
4
Alarm Grid, Inc. v. AlarmClub.com, Inc. (Southern District of Florida, 2018)
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In re Schlich, 893 F.3d 40 (1st Cir. 2018).
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Rich v. Butowsky (D.D.C., 2020)
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Carrington v Graden, (S.D.N.Y. 2020)
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Livingston v. City of Chicago (Northern District of Illinois, 2020)
9
Oppenheimer v. Episcopal Communicators (Western District of North Carolina, 2020)
10
Integrated Communications & Technologies v.Hewlett-Packard Financial Services Company (D. Mass. Aug. 13, 2020)

Harleysville Insurance Co. v. Holding Funeral Home, No. 1:15cv00057 (W.D .Va. Feb. 9, 2017)

Key Insight: Waiver of privilege for documents inadvertently posted to publicly accessible Box.com location

Nature of Case: insurance coverage litigation

Electronic Data Involved: Box.com uploads

Keywords: Box.com, privilege waiver, publicly accessible, account permissions, file sharing

Identified State Rule(s): Va. Sup. Ct. R. 4.1(b)(6)(ii)

Identified Federal Rule(s): FRE 502(b)

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D.M. v. Wesley Med. Ctr. LLC (D. Kan, 2019)

Key Insight: Privileged docs based on only state law must be produced in a case with both federal and state claims

Nature of Case: Medical malpractice

Electronic Data Involved: Responsive documents

Keywords: Privilege, state law

Identified State Rule(s): K.S.A. section 65-4925(a)

Identified Federal Rule(s): FRCP 26(b)

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Commonwealth v. Jones, SJC-12564 (Mass. Mar. 6, 2019)

Key Insight: Whether compelling the defendant to enter his cell phone password would violate his privilege against self incrimination under 5th Amendment and art. 12 of Mass Declaration of Rights

Nature of Case: Trafficking a person for sexual servitude

Electronic Data Involved: data held on cell phone

Keywords: Cell phone password, 5th Amendment

Identified State Rule(s): Mass. art. 12.

Identified Federal Rule(s): 5th Amendment

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Alarm Grid, Inc. v. AlarmClub.com, Inc. (Southern District of Florida, 2018)

Key Insight: Recorded phone call between party and copyright agent regarding image timing confidential at prelitigation phase

Nature of Case: copyright dispute

Electronic Data Involved: phone call recording

Keywords: protective order, confidential phone call, work-product

Identified State Rule(s): FRBC Rule 4-4.1, 4-1.2

Identified Federal Rule(s): 26(b)(3), 37(a)(5)

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Rich v. Butowsky (D.D.C., 2020)

Key Insight: A rule 45 motion to quash subpoenas on electronic subpoenas for electronic identities of anonymous users uses the 2themart.com test and are very fact specific

Nature of Case: Defamation

Electronic Data Involved: User account information

Keywords: Murder, twitter, first amendment, motion to quash, subpoena, defamation

Carrington v Graden, (S.D.N.Y. 2020)

Key Insight: Plaintiff was discovered to have fabricated emails. Court awarded over $500,000 in damages to Defendant.

Nature of Case: antitrust litigation

Electronic Data Involved: Emails

Keywords: sanctions,m fabricated evidence

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Livingston v. City of Chicago (Northern District of Illinois, 2020)

Key Insight: A responding party is best suited to determine the method of review and using TAR to pre-cull documents from review is an acceptable methodology

Nature of Case: Hiring discrimination

Electronic Data Involved: Emails

Keywords: Chicago, fire department, technology assisted review, TAR

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

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Integrated Communications & Technologies v.Hewlett-Packard Financial Services Company (D. Mass. 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

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