December 2013 – Page 12 – Electronic Discovery Law

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

Reinsdorf v. Academy Ltd., No. 3:13-0269, 2013 WL 3475183 (M.D. Tenn. July 10, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought a preservation order based primarily on Defendant?s refusal to share the details of its preservation efforts and based on speculation that Defendant had not preserved certain evidence (based on its use of a blank, rather than ?actual? purchase order as an exhibit to a motion), the court found that plaintiff offered only speculation and denied the motion; court also commented, based on the detailed nature of Plaintiff?s proposed order, that ?Plaintiff essentially wants the Court to grant a discovery request that has not been made?

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

In re Christus Health S.E. Texas, 399 S.W.3d 343 (Tex. Ct. App. 2013)

Dec 01 2013

Key Insight: Denial of motion to compel documents reflecting deceased patient?s children?s purchases and calls on the day the patient underwent his at-issue procedure was no abuse of discretion where the request for production was not sufficiently limited in time and was therefore overly broad; request for all posting to social media regarding the patient or his death was also not limited in time and thus ?overly broad on its face? and trial court did not abuse discretion in denying the motion to compel

Nature of Case: Health care liability

Electronic Data Involved: Documents reflecting purchases and calls on a particular day; Facebook/social media postings

Hart v. Dillon Cos., Inc., No. 12-CV-00238-RM-DW, 2013 WL 3442555 (D. Colo. July 9, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought sanctions for former employer?s spoliation of a tape containing a secretly recorded conversation ?which in part? led to Plaintiff?s termination, the court found that the tape was relevant, that Defendant had an obligation to preserve it (citing the fact that ?it knew that litigation was imminent? and a federal statute requiring the preservation of employment records concerning a terminated employee for 1 year from the date of termination), and that Plaintiff was prejudiced by the spoliation; in concluding that sanctions were warranted, court noted Defendant?s four month delay in issuing a litigation hold and indicated that ?[a]fter the duty to preserve attaches, the failure to collect taped recording from a key player is grossly negligent or willful?; what specific sanction would be imposed was not determined

Nature of Case: Employment Discrimination

Electronic Data Involved: Tape of secretly recorded conversation

Lane v. Vasquez, 961 F.Supp.2d 55 (D.D.C. 2013)

Dec 01 2013

Key Insight: Court denied Plaintiff?s motion for default judgment for alleged spoliation of ?documents pertaining to his non-selections? (in hiring) where Plaintiff failed to present ?clear and convincing evidence? that the ?abusive behavior? occurred and failed to show why a lesser sanction would not sufficiently punish or deter Defendant?s behavior; court also addressed Plaintiff?s motion for an adverse inference as to several specific instances of spoliation and provided individual analysis for each piece of evidence and ultimately denied the adverse inference as to all evidence for reasons including the failure to establish that any documents were in fact destroyed and the court?s determination that an adverse inference would not rebut Defendant?s ?legitimate, nondiscriminatory reasons? for the alleged adverse employment actions

Nature of Case: Employment discrimination

Electronic Data Involved: ?Documents related to the hiring process for positions he was denied?

AMC Tech., LLC v. Cisco Sys., Inc., No. 11-cv-3403 PSG, 2013 WL 3733390 (N.D. Cal. July 15, 2013)

Dec 01 2013

Key Insight: Court denied Plaintiff?s motion for an adverse inference for Defendant?s deletion of the ESI belonging to a former employee where despite a general duty to preserve, the defendant ?could not have reasonably known? of the potential relevance of the at-issue ESI; where the disposal of ESI was pursuant to a routine deletion policy and other communications from the at-issue employee were produced from other custodians ?which suggests that Cisco did not act with a conscious disregard;? and where the relevance of the documents was tentative and the court was ?hard-pressed? to find that Plaintiff was prejudiced by the loss

Nature of Case: Claims related to software development and licensing agreement

Electronic Data Involved: ESI belonging to former employee

Higgins v. Koch Dev. Corp., No. 3:11-cv-81-RLY-WGH, 2013 WL 3366278 (S.D. Ind. July 5, 2013)

Dec 01 2013

Key Insight: Upon Defendant?s motion to compel production of Plaintiffs? Facebook information/content, the court rejected Plaintiffs? claims that the request violated their right to privacy and the privacy rights of their Facebook ?friends? who had posted on their walls or tagged them in photographs, and ordered the plaintiffs to produce material concerning their claimed injuries and their effects

Nature of Case: Personal Injury

Electronic Data Involved: Facebook

Altercare Inc. v. Clark, No. 12CA010211, 2013 WL 3356577 (Ohio Ct. App. June 28, 2013)

Dec 01 2013

Key Insight: Where defendant failed to preserve plaintiff?s work computer at a time when litigation should have been reasonably foreseeable (because plaintiff?s employment ended under ?contentious? circumstances and because plaintiff was an attorney) and despite receipt of a specific written request for preservation, the trial court did not err in dismissing defendant?s claims against the plaintiff as a sanction

Nature of Case: Breach of employment contract and related claims

Electronic Data Involved: Work computer / computer hard drive

Breathablebaby LLC v. Crown Crafts, Inc., No. 12-cv-94 (PJS/TNL), 2013 WL 3350594 (D. Minn. May 31, 2013)

Dec 01 2013

Key Insight: Calling defendants collection efforts ?incomplete and somewhat haphazard? where defendant provided no instruction to its chosen custodians regarding the types of documents to search for, whether to check with subordinates, or how to search for documents, the court reopened discovery so that production could ?commence in accordance with the parties? joint ESI plan,? and ordered the parties to meet and confer regarding search terms and an amended scheduling order; court considered proper logging of emails and ordered defendant to produce an amended privilege log that listed each privileged email contained in an email string separately

Nature of Case: Patent infringement

Electronic Data Involved: Email, misc. ESI

Archive - December 2013