Archive: December 1, 2014

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Helget v. City of Hays, No. 13-2228-KHV-KGG, 2014 WL 1308893 (D. Kan. Mar. 31, 2014)
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Skepkek v. Roper & Twardowsky, LLC, No. 11-4102-KHV, 2014 WL 289470 (D. Kan. Jan. 27, 2014)
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Lozoya v. Allphase Landscape Constr., Inc., No. 12-cv-1048-JLK, 2014 WL 222068 (D. Colo. Jan. 21, 2014)
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Griffin v. New Prime Inc., No. 1:10-cv-01926-WSD, 2014 WL 212537 (N.D. Ga. Jan. 13, 2014)
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Robocast, Inc. v. Microsoft Corp., No. 10-1055-RGA, 2014 WL 789086 (D. Del. Feb. 25, 2014)
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Bailey v. Scoutware, LLC, No. 12-10281, 2014 WL 1118372 (E.D. Mich. Mar. 21, 2014)
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Painter v. Atwood, No. 2:12-cv-01215-JCM-RJJ, 2014 WL 1089694 (D. Nev. Mar. 18, 2014)
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In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2014 WL 1222222 (S.D. Ill. Mar. 25, 2014)
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Ingrid & Isabel, LLC v. Baby Be Mine, LLC, No. 13-cv-01806, 2014 WL 1338480 (N.D. Cal. Apr. 1, 2014)
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Celestica Inc. Sec. Litig., No. 07 Civ. 312(GBD)(MHD), 2014 WL 1301881 (S.D.N.Y. Mar. 31, 2014)

Helget v. City of Hays, No. 13-2228-KHV-KGG, 2014 WL 1308893 (D. Kan. Mar. 31, 2014)

Key Insight: Where defendant put ESI at issue by stating that plaintiff was fired, in part, for improper, personal use of the city’s computers, ESI relating to computer usage by plaintiff and certain others was relevant and city should have placed litigation hold on plaintiff’s immediate coworkers, those holding similar positions within the city, and the identified “key players”; court ordered city to bear the cost of forensic restoration

Nature of Case: Wrongful termination

Electronic Data Involved: E-mail, internet usage logs, and other ESI

Skepkek v. Roper & Twardowsky, LLC, No. 11-4102-KHV, 2014 WL 289470 (D. Kan. Jan. 27, 2014)

Key Insight: Noting that discovery dispute was good example of one which could have been avoided had the parties adequately conferred at their Rule 26(f) conference regarding production of ESI, court found that defendants failed to comply with prior discovery order by failing to produce attachments to responsive emails and granted motion to compel production of attachments

Nature of Case: Contract dispute concerning attorney fee-sharing agreement

Electronic Data Involved: Attachments to e-mails

Lozoya v. Allphase Landscape Constr., Inc., No. 12-cv-1048-JLK, 2014 WL 222068 (D. Colo. Jan. 21, 2014)

Key Insight: In case where defendants estimated: (1) production costs for discovery from computers and smart phones would run $35,000 to $45,000 for uploading and processing of data, and (2) plaintiffs’ potential recovery as between $10,350 to $29,700, court granted plaintiffs’ motion to compel finding that plaintiffs’ conduct was far more accommodating and professional than defendants’ and that production in Bates numbered .pdf format would not place undue burden on defendants

Nature of Case: Employment litigation

Electronic Data Involved: ESI, emails, texts

Griffin v. New Prime Inc., No. 1:10-cv-01926-WSD, 2014 WL 212537 (N.D. Ga. Jan. 13, 2014)

Key Insight: Plaintiffs’ motion for sanctions based on defendants’ alleged destruction of tractor-trailer’s black box data denied where data was lost when tow-truck operator, with the Georgia State Patrol’s consent, moved the tractor-trailer forward to separate it from another vehicle shortly after the accident, and plaintiffs offered no evidence to suggest that defendants knowingly moved the tractor-trailer forward or purposely failed to preserve the “black box” data

Nature of Case: Traffic accident

Electronic Data Involved: Black box data on tractor-trailer involved in accident

Robocast, Inc. v. Microsoft Corp., No. 10-1055-RGA, 2014 WL 789086 (D. Del. Feb. 25, 2014)

Key Insight: District court sustained Microsoft’s objection to special master’s order granting adverse inference instruction in light of finding that Microsoft’s failure to preserve source code was negligent rather than willful or grossly negligent; a finding of bad faith is required in order for an adverse inference instruction to be appropriate

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Bailey v. Scoutware, LLC, No. 12-10281, 2014 WL 1118372 (E.D. Mich. Mar. 21, 2014)

Key Insight: Because defendant was able to examine the subject cell phone with its expert, court ruled that plaintiff should also have the ability to examine the phone to determine if additional relevant text or voicemail messages exist or if there is evidence that text or voicemail messages were deleted, and ordered defendant to produce the current and old cell phones to plaintiff’s expert; court deferred ruling on other requested sanctions as premature and found that neither side was entitled to attorneys’ fees in connection with the motion

Nature of Case: Michigan Whistleblower Protection Act and breach of contract

Electronic Data Involved: Text messages and voicemail messages on cell phone of plaintiff’s former co-worker

Painter v. Atwood, No. 2:12-cv-01215-JCM-RJJ, 2014 WL 1089694 (D. Nev. Mar. 18, 2014)

Key Insight: Court granted defendants’ motion for sanctions in the form of an adverse inference instruction where, after she contemplated filing a lawsuit and retained counsel, plaintiff intentionally deleted Facebook comments that stated she enjoyed working for defendants; however, no sanctions were warranted for plaintiff’s deletion of text messages, as she was not on notice to preserve the texts at the time she deleted them (prior to leaving defendants’ employ)

Nature of Case: Former employee of dental practice sued for sexual harrassment, constructive discharge

Electronic Data Involved: Text messages and social media posts (Facebook comments and photographs)

In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2014 WL 1222222 (S.D. Ill. Mar. 25, 2014)

Key Insight: Court granted defendants’ request to preserve by storing existing hard drives for the duration of the litigation in lieu of creating and storing a mirror image of the hard drives, and ordered them to place the hard drives in a storage facility that is environmentally conducive to the continued viability of the integrity of the hard drives based on universally accepted computer industry standards

Nature of Case: Products liability

Electronic Data Involved: Laptops of document custodians subject to litigation hold, the operating systems of which were due to be upgraded from Windows XP to Windows 7

Ingrid & Isabel, LLC v. Baby Be Mine, LLC, No. 13-cv-01806, 2014 WL 1338480 (N.D. Cal. Apr. 1, 2014)

Key Insight: Court denied issue preclusion sanctions without prejudice, ordering defendants to pay monetary sanctions of $20,444, produce all hard drives and any other electronic storage media subject to court-approved protocol for inspection, and provide plaintiff’s experts with access to defendants’ various e-mail, Amazon, Twitter, Facebook and eBay accounts, in light of serious concern as to whether defendants met their discovery obligations and real danger that evidence may be destroyed

Nature of Case: Breach of settlement agreement resolving trademark infringement and unfair competition claims

Electronic Data Involved: Defendants’ hard drives and various e-mail, Amazon, Twitter, Facebook and eBay accounts

Celestica Inc. Sec. Litig., No. 07 Civ. 312(GBD)(MHD), 2014 WL 1301881 (S.D.N.Y. Mar. 31, 2014)

Key Insight: Mandatory adverse inference instruction was not warranted by former Chairman’s admitted deletion of e-mails after his retirement despite written document preservation instruction from corporate counsel at the outset of litigation, as defendants did not have requisite culpable state of mind and there was insufficient evidence of relevance or prejudice; instead, permissive adverse inference instruction was appropriate

Nature of Case: Securities class action

Electronic Data Involved: E-mails of defendant Celestica’s former Chairman of the Board

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