December 1, 2012 – Page 16 – Electronic Discovery Law

Kravtsov v Town of Greenburgh, No. 10-cv-3142 (CS), 2012 WL 2719663 (S.D.N.Y. July 9, 2012)

Dec 01 2012

Key Insight: Where defendant?s failure to preserve potentially relevant surveillance video despite notice of plaintiff?s claim and a request for preservation was at least grossly negligent in light of the failure to implement a litigation hold, the delay between the request for the video and efforts to retrieve it, and the ?collective ignorance? of the people who should have know how the surveillance system worked (the time stamp was set for the wrong time zone resulting in collection of the wrong footage?a mistake that was not discovered until the relevant footage had been recorded over) and where the court determined that because of the grossly negligent conduct, ?relevance [was] determined as a matter of law,? the court ordered sanctions, including an adverse inference and payment of related costs and attorneys? fees

Nature of Case: Claims of discrimination on the basis of disability, national origin, and religion, assault, unlawful imprisonment, and denial of a reasonable accommodation for Plaintiff?s disability

Electronic Data Involved: Video Surveillance

Millennium TGA, Inc. v. Comcast Cable Commc?ns LLC, —F. Supp. 2d—, 2012 WL 2371426 (D.D.C. June 25, 2012)

Dec 01 2012

Key Insight: Where Plaintiff served a subpoena seeking identifying information related to one defendant and 350 ?co-conspirators? who plaintiff alleged engaged in a conspiracy to unlawfully download Plaintiff?s movie (using the BitTorrent protocol) and Comcast objected on the grounds of undue burden, among other things, the D.C. Court (the court from which the subpoena was issued) treated Comcast?s objections as a motion to quash and found that the burden of issuing the subpoena would result in undue burden to Comcast, to the defendant and to the 350 ?co-conspirators? who did not reside in the forum because they would be subjected to undue inconvenience of litigating any objections in a ?distant forum? and denied Plaintiff?s request but, recognizing Plaintiff?s efforts and interest in litigating the case, ordered Comcast to provide information related to alleged co-conspirators city and state of residence, but not identifying information, which Comcast could do without undue burden and which would allow plaintiff to seek the identifying information of the alleged co-conspirators in the jurisdiction in which they lived

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information related to ISP subscribers

Linnebur v. United Telephone Assoc., Inc., No. 10-1379-RDR, 2012 WL 2370110 (D. Kan. June 21, 2012)

Dec 01 2012

Key Insight: Where Plaintiff was able to establish that defendant destroyed ESI while under a duty to preserve but was unable to establish that she was actually prejudiced by the loss, the court denied Plaintiff?s motion for sanctions without prejudice and, noting that it was ?troubled? by Defendant?s preservation failures and counsel?s apparent failure to oversee his client?s discovery efforts, the court sua sponte reopened discovery solely as to the issue of spoliation

Nature of Case: Unlawful termination under Age Discrimination in Employment Act

Electronic Data Involved: Email, ESI

Tourgeman v. Collins Fin. Servs., Inc., No. 08cv1392-JLS(NLS), 2012 WL 28289 (S.D. Cal. Jan. 5, 2012)

Dec 01 2012

Key Insight: Where defendants? mistake in searching resulted in the failure to produce relevant documents and where plaintiff alleged that those documents would have established numerosity for purposes of his motion to certify (and where the motion was denied without them), court found that the mistake was not willful or in bad faith and that there was no prejudice where plaintiff was free to re-file his motion and thus, as a sanction, awarded limited attorneys? fees incurred as the result of defendants? mistake and noted plaintiff?s failure to timely review the documents produced by defendants, which may have alerted him to the problems prior to filing his motion for class certification

Nature of Case: Class action

Electronic Data Involved: ESI

Ceglia v. Zuckerberg, No. 10-CV-00569A(F), 2012 WL 95362 (W.D.N.Y. Jan. 10, 2012)

Dec 01 2012

Key Insight: Where plaintiff acted to avoid compliance with court?s order to produce information related to email accounts, including passwords, by repeatedly filing motions to stay discovery and by modifying the consent forms related to the examination of his email accounts to effectively delay the search, despite the court?s denial of his motions to stay discovery, the court ordered civil contempt sanctions and ordered plaintiff to pay $5,000 to the court and also ordered payment of defendants? attorneys? fees and costs related to Defendants? Accelerated Motion to Compel, necessitated by plaintiff?s dilatory behavior

Nature of Case: Breach of contract

Electronic Data Involved: Access to emails (passwords, etc.) for forensic examination

Tadayon v. Greyhound Lines, Inc, No. 10-1326, 2012 WL 2048257 (D.D.C. June 6, 2012)

Dec 01 2012

Key Insight: In this case, following analysis of several discovery motions, Magistrate Judge Facciola wrote of the need for cooperation: “III. High Noon. As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town-not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation.FN3 First, the parties will meet and confer in person in a genuine, good faith effort. . . .”; also, court ruled that where Clawback agreement imposed no conditions on right to recall privileged documents, defendant could do so irrespective of alleged negligence

Nature of Case: Patent Infringement

Electronic Data Involved: All discovery

Goldstein v. Colborne Acquisition Co., No. 10 C 6861, 2012 WL 1969369 (N.D. Ill. June 1, 2012)

Dec 01 2012

Key Insight: President and owner of corporation waived privileged as to emails on company servers by consenting to the sale of all company assets, including the company?s servers and emails, without asserting his privilege; shareholders/officers of corporation waived privilege as to messages sent from company email where subjective belief that their communications were confidential was not reasonable in light of company?s email policy which claimed ownership of emails on company systems and reserved the right to access them; court?s analysis applied Asia Global Crossing factors, but acknowledged that privilege waiver inquiries require case-by-case analysis

Nature of Case: Claim of fraudulent sale of business to avoid judgment

Electronic Data Involved: Allegedly privileged emails

Illiana Surgery and Med. Ctr., No. 2:07 cv 3, 2012 WL 2049828 (N.D. Ind. June 5, 2012)

Dec 01 2012

Key Insight: Court granted motion to compel defendant to designate a 30(b)(6) deponent to be deposed regarding defendant?s method of maintaining electronically stored information during the relevant time period where the information was relevant to plaintiff?s claims of bad faith and where defendant had produced requested information in a piecemeal fashion and repeatedly supplemented production, despite previously claiming all relevant information had been produced

Nature of Case: Breach of insurance contract and bad faith

Electronic Data Involved: Deponent to testify regarding document management practices

In re Toyota Motor Corp. Unintended Acceleration Mktg. Sales Practices, and Prods. Liability Litig., —F. Supp. 2d—, 2012 WL 2146319 (C.D. Cal. June 11, 2012)

Dec 01 2012

Key Insight: Where Toyota conducted inspection of relevant Event Data Recorder without providing plaintiffs the opportunity to be present but where there was no showing of actual alteration or deletion of relevant data, court declined to impose terminating sanctions and ordered a cautionary instruction be given to the jury; court also credited plaintiff?s evidence regarding a dispute surrounding the location of a plastic piece in plaintiffs? engine, which was allegedly moved by Toyota representatives during their inspection, and ordered an evidentiary instruction stating that the Toyota representatives testimony regarding the plastic piece should be regarded with ?greater caution? than that of other witnesses

Nature of Case: Personal injury/product liability

Electronic Data Involved: Event Data Recorder data and plastic piece in engine

Domanus v. Lewicki, No. 08 C 4922, 2012 WL 2072866 (N.D. Ill. June 8, 2012)

Dec 01 2012

Key Insight: Where defendants indicated that a relevant hard drive had crashed and been disposed of but that some relevant information had been recovered and where plaintiff was unable to establish that defendants acted in bad faith, court found defendants were grossly negligent in their failure to preserve the relevant hard drive which resulted in prejudice to the plaintiff and ordered a ?spoliation charge? allowing but not requiring the jury to determine whether the spoliation warranted an adverse inference; opinion includes comprehensive discussion of relevant law and standards surrounding spoliation

Nature of Case: Racketeering and fraud

Electronic Data Involved: Hard drive

Archive - December 1, 2012