December 1, 2013 – Page 11 – Electronic Discovery Law

Reinsdorf v. Sketchers U.S.A.,Inc., — F. Supp. 2d —,2013 WL 3878685 (C.D. Cal. July 19, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought sanctions for alleged spoliation of documents from Defendant?s media share website but where the court found that many of the at-issue documents were not relevant and therefore were not subject to preservation and that the deletion of ?arguably relevant documents? was ?at most negligent,? the court found that Plaintiff was not prejudiced and denied his request for forensic examination of Defendant?s servers and an evidentiary hearing and also declined to re-open discovery; court?s analysis noted that the federal rules do not require perfection, but rather that a responding party conducts an objectively reasonable search for responsive materials

Nature of Case: Copyright infringement

Electronic Data Involved: ESI stored on Media share website

Surfcast v. Microsoft Corp., No. 2:12-cv-333-JAW, 2013 WL 4039413 (D. Me. Aug. 7, 2013)

Dec 01 2013

Key Insight: Despite confidentiality order that inadvertent production would not result in waiver, court found privilege was waived as to email (originally produced in hard copy) that was privileged ?on its face? (it sought ?lagal? [sic] advice and had indications that there were additional recipients to the email not apparent on the hard copy version, one of which turned out to be an attorney) and which was utilized in a deposition for approximately 30 minutes without Plaintiff?s objection; court reasoned that the confidentiality order could not be ?reasonably? read to protect against waiver under ?any and all circumstances? and that instead it established only that ?mere inadvertent production, standing alone, does not constitute waiver.?

Nature of Case: Patent Infringement

Electronic Data Involved: Email (originally produce in hard copy but also available electronically)

Linde v. Arab Bank, PLC, 706 F.3d 92 (2d Cir. 2013)

Dec 01 2013

Key Insight: On appeal from sanctions order against Arab Bank, court found it did not have jurisdiction over the order for sanctions and dismissed the appeal; court also found Arab Bank was not entitled to a writ of mandamus vacating the sanctions order and the petition for a writ of mandamus was therefore denied

Nature of Case: Knowingly and purposefully aiding and abetting terrorists and terrorist organizations

Electronic Data Involved: Foreign banking information

Jackson v. Target Corp., No. 12-12190, 2013 WL 3771354 (E.D. Mich. July 28, 2013)

Dec 01 2013

Key Insight: Where Defendant preserved a portion of the relevant surveillance video following Plaintiff?s fall but, upon being ordered to preserve substantially more, could not comply because the video had been automatically overwritten by that time and could not be recovered, the court declined to impose an adverse inference absent evidence of a culpable mindset

Nature of Case: Premises liability (slip and fall)

Electronic Data Involved: Surveillance video

Hixson v. City of Las Vegas, No. 2:12-cv-00871-RCJ-PAL, 2013 WL 3677203 (D. Nev. July 11, 2013)

Dec 01 2013

Key Insight: No sanctions for Defendant?s failure to produce a particular relevant email where the email was subject to Defendant?s automatic deletion policy and where the court ?was satisfied? that the email was in fact automatically deleted before Defendant was on notice that litigation was reasonably foreseeable

Nature of Case: Hostile Work Environment

Electronic Data Involved: Email subject to automatic deletion policy

Jewell v. Aaron?s Inc., No. 1:12-CV-05630-AT, 2013 WL 3770837 (N.D. Ga. July 19, 2013)

Dec 01 2013

Key Insight: Court declined to approve Defendant?s discovery request for 87 opt-in Plaintiffs to produce all content of websites, blogs, or social media sites posted by them during work hours for a four year period where Defendant failed to make a ?sufficient predicate? showing that the information sought was reasonably calculated to lead to the discovery of admissible evidence and where the request was overly burdensome in light of the ?remote relevance of the information? sought

Nature of Case: Collective Action

Electronic Data Involved: Contents of websites, blogs, social media (e.g., Facebook) posted by Plaintiffs during work hours for a four year period

Jo Ann Howard & Assocs. v. Cassity, No. 4:09CV01252 ERW, 2013 WL 3788804 (E.D. Mo. July 19, 2013)

Dec 01 2013

Key Insight: Alleged inadvertent production found to be waiver of privilege where the court found the production was voluntary (noting that the document had been produced twice and was clearly identified in the production log); found that reasonable precautions were not taken to prevent disclosure (citing the failure to label the document as privileged and the low number of other documents in the production and reasoning that blaming an error by the file room staff did not ?excuse? the failure to supervise production); and found that Defendants failed to take prompt measures to rectify the disclosure (citing the failure to claim privilege when asked for further details regarding the document in the course of discovery and the almost seventeen month delay between the ?first voluntary production? and the assertion of privilege)

Nature of Case: RICO, violations of fiduciary duty, gross negligence

Electronic Data Involved: Narrative summary of events composed by Defendant

Stream Cos., Inc. v. Windward Adver., No. 12-cv-4549, 2013 WL 3761281 (E.D. Pa. July 17, 2013)

Dec 01 2013

Key Insight: Magistrate judge addressed accusations of spoliation and violation of court orders and found that monetary sanctions were appropriate for defendants? spoliation of emails which were deleted (as evidenced by forensic investigation) after the duty of preservation arose but declined to find spoliation had occurred as to defendants? laptops or external storage devices where Plaintiff presented little more than evidence of Defendants? lack of credibility; magistrate judge imposed sanctions for violation of court?s orders where Defendants made unilateral decisions not to produce certain electronic devices but gave numerous assurances that everything had been produced; magistrate judge found Plaintiff had established a prima facie case of defendants? contempt of the court?s discovery orders and preliminary injunction order and certified certain underlying facts for consideration by the District Court

Nature of Case: Violations of Computer Fraud and Abuse Act, Copyright Act, PA Wiretap Act, state trade secret law, duty of loyalty

Electronic Data Involved: Email, storage devices (iPad, iPhone, thumb drives), personal computers

Hull v. WTI, Inc.,—S.E.2d—, 2013 WL 2996191 (Ga. Ct. App. June 18, 2013)

Dec 01 2013

Key Insight: Where defendants produced 156,000 documents as they were kept in the ordinary course of business but where the documents were insufficiently organized and only the documents? indexes and not the documents themselves were text searchable, the trial court did not abuse its discretion in holding that the production was not consistent with Defendants? discovery obligations; appellate court noted that trial court did not hold that parties are prohibited from producing documents as kept in the ordinary course of business but rather than in this instance, ?under these circumstances,? the production was not appropriate

Nature of Case: Breach of contract, trade secret misappropriations, and “other business tort claims” and counterclaims

Electronic Data Involved: Scanned hard copy and miscellaneous ESI (e.g., email)

Pereira v. City of New York, No. 26927/11, 2013 WL 3497615(N.Y. Sup. Ct. June 19, 2013)

Dec 01 2013

Key Insight: Where Defendant demonstrated that there were probative photos on Plaintiff?s Facebook and elsewhere (i.e. ?a hockey blog?) , the court reasoned that it was ?therefore reasonable to believe that other portions of his Facebook account may contain further evidence relevant to the issue of plaintiff?s injuries,? and ordered Plaintiff to provide for in camera inspection ?all photographs depicting sporting activities posted on the demanded media sites? and ?copies of all status reports, emails, photographs, and videos posted on plaintiff?s media sites since the date of the subject accident?

Nature of Case: Personal Injury

Electronic Data Involved: ?Social media websites and blogs? e.g., Facebook

Archive - December 1, 2013