Archive: December 1, 2013

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Distefano v. Law Offices of Barbara H. Katsos, PC, No. CV 11-2893(JA)(AKT), 2013 WL 1339548 (E.D.N.Y. Mar. 29, 2013)
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United States ex rel Becker v. Tools & Metals, Inc., Nos. 3:05-CV-0627-L, 3:05-CV-2301-L, 2013 WL 1293818 (N.D. Tex. Mar. 31, 2013)
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Gordon v. Dreamworks Animation SKG, Inc., No. 1:11-10255-JLT, 2013 WL 1292520 (D. Mass. Mar. 28, 2013)
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Safety Today, Inc. v. Roy, Nos. 2:12-cv-510, 2:12-cv-929, 2013 WL 1282384 (S.D. Ohio Mar. 27, 2013)
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Lutalo v. Nat?l R.R. Passenger Corp., No. 11-cv-00974-REB-KLM, 2013 WL 1294125 (D. Colo. Mar. 28, 2013)
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Eaglesmith v. Ray, No. 2:11-cv-00098 JAM-AC, 2013 WL 1281823 (E.D. Cal. Mar. 26, 2013)
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Potts v. Dollar Tree Stores, Inc., No. 3:11-cv-01180, 2013 WL 1176504 (M.D. Tenn. Mar. 20, 2013)
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Hallmark cards, Inc. v. Monitor Clipper Partners, LLC, No. 08-0840-CV-W-ODS, 2013 WL 1155245 (W.D. Mo. Mar. 20, 2013)
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In re High-Tech Employee Antitrust Litig., No. 11-CV-2509-LHK-PSG, 2013 WL 772668 (N.D. Cal. Feb. 28, 2013)
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E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH, 2013 WL 753480 (D. Colo. Feb. 27, 2013)

Distefano v. Law Offices of Barbara H. Katsos, PC, No. CV 11-2893(JA)(AKT), 2013 WL 1339548 (E.D.N.Y. Mar. 29, 2013)

Key Insight: Court found attorney?s duty to preserve was triggered upon receipt of correspondence terminating her representation but withheld judgment on issue of spoliation until hearing could be held

Nature of Case: Legal Malpractice

Electronic Data Involved: ESI, computers

United States ex rel Becker v. Tools & Metals, Inc., Nos. 3:05-CV-0627-L, 3:05-CV-2301-L, 2013 WL 1293818 (N.D. Tex. Mar. 31, 2013)

Key Insight: Court addressed at length the recovery of costs related to electronic discovery in action alleging violations of False Claims Act and affirmed recovery of costs, although with some adjustments, for ?uploading and creating a search index? (done by vendor), electronic hosting costs, and forensic imaging, but did not allow recovery of costs related to vendor?s efforts to repair broken or corrupt files where asking for reproduction of those files would have been free

Nature of Case: False Claims Act

Electronic Data Involved: Costs related to electronic discovery

Gordon v. Dreamworks Animation SKG, Inc., No. 1:11-10255-JLT, 2013 WL 1292520 (D. Mass. Mar. 28, 2013)

Key Insight: Court ordered spoliation sanctions for Plaintiff?s intentional destruction of materials related to his claim of copyright infringement at a time when he had a duty to preserve as evidenced by his actions to ?preserve? his work with the copyright office before the release of the allegedly infringing film (Kung Fu Panda) and his consultation with counsel; sanctions excluded evidence of Plaintiff?s 2008 copyright registration which was created with and relied upon evidence that had been destroyed

Nature of Case: Copyright Infringement

Electronic Data Involved: Hard copy documents, computer equipment and contents

Safety Today, Inc. v. Roy, Nos. 2:12-cv-510, 2:12-cv-929, 2013 WL 1282384 (S.D. Ohio Mar. 27, 2013)

Key Insight: Court granted motion to compel inspection and imaging of certain of defendant?s computers/servers/devices in case involving accusations of misappropriation of confidential information by plaintiff?s former employees for the benefit of defendant but also granted defendant a protective order limiting disclosure for ?attorneys? eyes only?

Nature of Case: Missapropriation of confidential information

Electronic Data Involved: ESI

Lutalo v. Nat?l R.R. Passenger Corp., No. 11-cv-00974-REB-KLM, 2013 WL 1294125 (D. Colo. Mar. 28, 2013)

Key Insight: In a case arising from a train passenger?s complaints regarding Plaintiff?s telephone conversation which the passenger found threatening and which resulted in Plaintiff?s arrest, the court found that the plaintiff had a duty to preserve the relevant cellular phone and that Defendants were prejudiced by its loss but declined to impose an adverse inference instruction for merely negligent spoliation (inadvertent loss) and instead barred Plaintiff from introducing evidence related to who he was talking to or what was said and allowed Defendants to present evidence regarding Plaintiff?s failure to preserve and argue ?whatever inference they hope the jury will draw?

Nature of Case: Claims arising from arrest where charges were later dismissed

Electronic Data Involved: Cellular phone

Eaglesmith v. Ray, No. 2:11-cv-00098 JAM-AC, 2013 WL 1281823 (E.D. Cal. Mar. 26, 2013)

Key Insight: Court allowed recovery of costs in categories including, ? ?heavy litigation scanning,? bates labeling in electronic format . . . ?hourly tech time,? ?make 1 blowback set of all PDF files outside off [sic]folders; slipsheet with file name? but declined to allow recovery of ?OCR costs? absent evidence that the parties agreed to make documents searchable

Nature of Case: Taxable costs

Electronic Data Involved: Taxable costs

Potts v. Dollar Tree Stores, Inc., No. 3:11-cv-01180, 2013 WL 1176504 (M.D. Tenn. Mar. 20, 2013)

Key Insight: Court declined to compel production of Plaintiffs? Facebook or other social media pages absent a threshold showing that the accounts would contain information within the scope of discovery but concluded that information stored on Plaintiff?s computer ?could lead reasonably to the discovery of admissible evidence? and required that the parties agree to a word search of Plaintiff?s computer by a neutral third party to ?asses whether Plaintiff?s computer contains relevant information?

Nature of Case: Employment discrimination/harassment

Electronic Data Involved: Facebook and social media, personal computer

Hallmark cards, Inc. v. Monitor Clipper Partners, LLC, No. 08-0840-CV-W-ODS, 2013 WL 1155245 (W.D. Mo. Mar. 20, 2013)

Key Insight: Court held that ?scanning documents and converting computer data into readable format constitute copying within the meaning of section 1920(4)? but that ?costs associated with storing ESI are not recoverable?

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Taxable costs related to ESI

In re High-Tech Employee Antitrust Litig., No. 11-CV-2509-LHK-PSG, 2013 WL 772668 (N.D. Cal. Feb. 28, 2013)

Key Insight: Applying relevant factors identified in In re Asia Global Crossing Ltd., 322 B.R. 247 (S.D.N.Y. 2005), court concluded that consultant?s use of workplace email did not waive privilege where, although the factors were evenly split, there was no evidence that the employee actually monitored employees? emails and because of the ?importance of the attorney-client privilege?

Nature of Case: Plaintiffs claim defendants colluded to “avoid poaching each other’s employees and to stabilize their compensation packages.”

Electronic Data Involved: Emails

E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH, 2013 WL 753480 (D. Colo. Feb. 27, 2013)

Key Insight: Following up on its November 2012 opinion (2012 WL 5430974), the court adopted the EEOC?s proposed search terms (with certain additions proposed by Defendant) and amended its November order to hold that the EEOC would bear the initial costs of the Special Master appointed for the purpose of conducting the relevant searches of Plaintiffs? email, social networks, and cell phones and could seek reimbursement from the Defendant by motion and argument at an appropriate time (court had initially ordered that the parties would bear the cost equally

Nature of Case: Sexual Harassment, retaliation

Electronic Data Involved: Social media, text messages, email

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