December 1, 2014 – Page 9 – Electronic Discovery Law

Baker v. Bayer Healthcare Pharm., Inc., No. 13-cv-00490-THE (KAW), 2014 WL 5513854 (N.D. Cal. Oct. 31, 2014)

Dec 01 2014

Key Insight: Finding that sales call notes that plaintiff sought, as opposed to only those concerning plaintiff’s healthcare provider, were relevant, but agreeing that producing all sales call notes for tens of thousands of healthcare providers was unduly burdensome and disproportionate to the needs of this single-plaintiff case, court sought to strike a balance between plaintiff’s entitlement to information relevant to her claims and need to ease defendant’s burden of production, and ordered production of sales call notes that had already been produced in related multidistrict litigation involving over 1,500 plaintiffs; court noted that production in related MDL was limited to the plaintiffs? specific prescribing physicians but that the volume that production would yield would give plaintiff a substantial cross-section of sales call notes without burdening defendant with production of sales call notes for every physician in every market in which the device was promoted

Nature of Case: Single-plaintiff products liability lawsuit

Electronic Data Involved: Databases containing sales call notes from conversations between defendant’s sales representatives and healthcare providers

In re Indeco Sales, Inc., No. 09-14-00405-CV, 2014 WL 5490943 (Tex. App. Oct. 30, 2014)

Dec 01 2014

Key Insight: Ruling on petition for writ of mandamus, state appellate court found that trial court did not abuse its discretion in denying defendants’ motion to compel: (1) production of plaintiff’s cell phone for forensic examination and data extraction (to retrieve stored and deleted photographs and videotapes depicting plaintiff subsequent to accident, stored and deleted text messages, emails and audio recordings referencing or reflecting plaintiff’s alleged depression, etc.) and (2) production of information, data, posts and conversations from plaintiff’s Facebook page, because the requests were not properly limited in time and scope, were overly broad and could have been more narrowly tailored, and constituted an unwarranted intrusion

Nature of Case: Personal injury claims stemming from motor vehicle accident

Electronic Data Involved: Data stored on plaintiff’s cell phone; and information, data, posts and conversations from plaintiff’s Facebook page

Ferriggi v. Best Yet Market of Astoria, Inc., No. 8564/2013, 2014 WL 5334000 (N.Y. Sup. Ct. Oct. 17, 2014)

Dec 01 2014

Key Insight: Court found that defendant was negligent in failing to preserve or to make diligent efforts to retrieve surveillance video, but that loss of video did not fatally deprive plaintiff of means to prosecute his action given that witness who viewed the videotape and grocery store worker who unpacked boxes near accident location were available to testify, and accident report and medical response reports provided plaintiff with ability to prove proximate cause of accident; trial court would fashion appropriate negative inference charge against defendant based upon its failure to preserve the videotape and defendant would be precluded from offering testimony at trial to contradict plaintiff’s claim of adequate notice or that defendant created the condition which caused plaintiff to slip and fall

Nature of Case: Slip and fall accident at supermarket

Electronic Data Involved: Surveillance video

Kearney v. JPC Equestrian, Inc., No. 3:11-CV-01419, 2014 WL 5493187 (M.D. Penn. Oct. 30, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion to compel further production of email where defendants flatly represented that additional emails did not exist and custodian swore under oath that his email box had been thoroughly searched and there were no further responsive emails

Nature of Case: Wrongful termination

Electronic Data Involved: Email and other ESI

BancorpSouth Bank v. Kleinpeter Trace, LLC, No. 2013 CA 1396, 2014 WL 4925698 (La. Ct. App. Oct. 1, 2014)

Dec 01 2014

Key Insight: Appellate court concluded that trial court did not err in ordering that adverse inference instruction be given to jury as to contents of particular file where plaintiff had notice that file, which was within plaintiff?s control, was relevant to pending litigation, it attempted to refer to contents of file in support of motion for summary judgment, and plaintiff?s explanation for loss of the file was pretextual and not reasonable; appellate court reversed trial court?s decision to impose ultimate sanction of dismissal because record did not support conclusion that plaintiff willfully or in bad faith failed to comply with trial court?s orders, since dismissal rested on conduct that did not relate to court-ordered discovery and in most instances occurred prior to the first discovery order; appellate court vacated trial court?s award of attorneys? fees in favor of defendant and remanded the matter to the trial court for a determination of reasonable expenses because the basis for the award was unclear and the award appeared to include other fees and costs unrelated to the particular discovery motion for which they were awarded

Nature of Case: Suit to enforce obligations arising out of promissory notes

Electronic Data Involved: ESI, email, spreadsheets

Apple Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK, 2014 WL 4745933 (N.D. Cal. Sep. 19, 2014)

Dec 01 2014

Key Insight: Trial court considered parties? respective objections to clerk?s taxation of costs and further reduced Apple?s costs award; among other things, trial court rejected Apple?s argument that it was entitled to recover e-discovery costs incurred in processing all documents collected for review, whether or not they were all produced, and instead reduced award to approximate amount Apple spent on documents that were actually produced to Samsung; as Apple estimated it uploaded a total of 18,264,712 pages in the litigation, of which 2,944,467 pages were ultimately produced, court calculated that approximately 16.12% of Apple?s e-discovery costs were spent on documents produced to Samsung and awarded Apple $238,103 for e-discovery costs

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Curtin v. Blair Bros. Contracting, Inc., No. 2012-1082, 2014 WL 4695980 (N.Y. Sup. Ct. Aug. 28, 2014) (unreported)

Dec 01 2014

Key Insight: Where defendants asserted they received only a “handful” of emails and argued that plaintiffs destroyed or otherwise failed to preserve relevant emails, court denied defendants’ motion for spoliation sanctions, finding that defendants failed to prove that the subject emails ever actually existed; court further rejected defense argument that missing emails were relevant to their counterclaim, observing that, to the extent the counterclaim sought payment for ?extras? performed by defendants, defendants presumably had their own records to support the counterclaim and did not need to rely on emails exchanged between plaintiffs and their architect, therefore even if spoliation did take place, the defendants were not prejudiced thereby

Nature of Case: Claims for breach of contract, fraudulent misrepresentation, unjust enrichment and conversion arising from residential construction

Electronic Data Involved: Email

In re Fundamental Long Term Care, Inc., 515 B.R. 874 (Bankr. M.D. Fla. 2014)

Dec 01 2014

Key Insight: Concluding that inadvertent production did not waive privilege, court rejected bankruptcy trustee’s argument that party waived privilege because it had not taken any — or perhaps enough — action to have the privileged documents removed from the district court’s electronic docket, noting that measures taken to rectify an inadvertent disclosure is only one of five factors courts consider in determining whether privilege has been waived and other four factors weighed against a finding of waiver

Nature of Case: Adversary proceeding in bankruptcy case

Electronic Data Involved: Privileged ESI

Ades v. Omni Hotels Mgmt. Corp., No. 2:13-cv-02468-CAS(MANx), 2014 WL 4627271 (C.D. Cal. Sep. 8, 2014)

Dec 01 2014

Key Insight: Considering plaintiffs? motion for class certification, court discussed Omni?s efforts to preserve call records and recordings and the apparently accidental loss of related call detail records and attendant search functionality; plaintiffs argued that any difficulties in identifying class members was due to Omni?s destruction of data that could have been used to search call recordings, and that it would unfair to allow such difficulties to prejudice class certification; court ultimately certified class and ruled that, to the extent Omni argued that ?identifying class members? may be difficult, those concerns were more properly addressed after class certification

Nature of Case: Putative class action alleging claims under the California Invasion of Privacy Act

Electronic Data Involved: Audio recordings of telephone calls and related data

Eivaz v. Edwards, No. 12-C-910, 2014 WL 4698652 (E.D. Wis. Sep. 19, 2014)

Dec 01 2014

Key Insight: After considering the severity of plaintiff’s various discovery violations as well as the prejudice to defendants, and finding plaintiff’s violations of court order were willful and in bad faith, court: (1) granted defense motions for sanctions and dismissed plaintiff’s claims against defendants with prejudice, (2) ordered plaintiff to submit to a continued deposition for up to seven additional hours in the event defendant elected to pursue its counterclaim, and (3) ordered plaintiff and his attorney to pay additional attorneys’ fees and costs incurred by defendant in continuing plaintiff’s deposition and in bringing motion for sanctions

Nature of Case: Breach of contract, promissory estoppel, unjust enrichment

Electronic Data Involved: Emails, text messages, financial documents

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