Archive: March 2016

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McIntosh v. USA (SDNY, 2016)
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No Sanctions for Failure to Halt Automatic Deletion of Text Messages
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Odeh v. City of Baton Rouge E. Baton Rouge (Middle District of Lousiana, 2016)
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LBBW Luxemburg S.A. v. Wells Fargo Sec. LLC (Southern District of New York, 2016)
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Court Conducts Separate Analyses for Loss of Tangible Things and ESI, Declines to Impose Sanctions
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First Fin. Sec., Inc v. Lee (D. Minn, 2016)
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Court Approves Proposal to Redact or Withhold Irrelevant Information from Responsive Documents and Document Families
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Van v. Language Line Servs. (United States District Court Northern District of California, 2016)

McIntosh v. USA (SDNY, 2016)

Key Insight: Plaintiff unsuccessfully seeks injunction to prevent destruction of certain evidence. Defendants argued that sanctions would be inappropriate and no spoliation had occurred.

Nature of Case: Inmate pro se plaintiff asserts a host of constitutional violations against the U.S. and individual prison personnel.

Electronic Data Involved: Deleted video footage.

Keywords: Failure to preserve, destruction of evidence, spoliation, adverse inference.

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No Sanctions for Failure to Halt Automatic Deletion of Text Messages

Living Color Enters., Inc. v. New Era Aquaculture, Ltd., No. 14-cv-62216-MARRA/MATHEWMAN, 2016 WL 1105297 (S.D. Fla. Mar. 22, 2016)

In this case, text messages were deleted when Defendant failed to turn off the automatic delete function on his cellular phone. Because “the great majority” of the messages were produced from another source—and thus not lost—however, and where the court determined there was no prejudice or evidence of Defendant’s “intent to deprive” or bad faith, Plaintiff’s Motion for Sanctions was denied.

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Odeh v. City of Baton Rouge E. Baton Rouge (Middle District of Lousiana, 2016)

Key Insight: Production of an plaintiff employee’s own entire email box of 13 years is overbroad and not proportional

Nature of Case: Employment discrimination, whistleblower protection

Electronic Data Involved: Electronic documents generally

Keywords: proportional, 13 years,

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LBBW Luxemburg S.A. v. Wells Fargo Sec. LLC (Southern District of New York, 2016)

Key Insight: Non-responsive documents should not be produced, even if redacted, and privilege or some sort of reason must be asserted for redactions to be proper

Nature of Case: Fraud

Electronic Data Involved: Electronic documents generally

Keywords: redactions, bloomberg, non-responsive

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Court Conducts Separate Analyses for Loss of Tangible Things and ESI, Declines to Impose Sanctions

Best Payphones, Inc. v. City of New York, Nos. 1-CV-3924 (JG) (VMS), 1-CV-8506 (JG) (VMS), 3-CV-0192 (JG) (VMS); 2016 WL 792396 (E.D.N.Y. Feb. 26, 2016)

In this case, the court addressed Defendants’ motion for sanctions for Plaintiff’s failure to preserve hard copy documents and electronically stored information and therefore conducted simultaneous but separate analyses of the alleged spoliation under the common law (tangible items/hard copy) and recently-amended Fed. R. Civ. P. 37(e) (ESI). Ultimately, the court determined that Plaintiff was negligent in its failure to preserve relevant information but that the lack of prejudice precluded imposition of the serious sanctions requested.  Instead, Plaintiff was ordered to pay Defendants’ attorneys’ fees and costs related to the motion.

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First Fin. Sec., Inc v. Lee (D. Minn, 2016)

Key Insight: Magistrate recommended sanctions for defendants’ willful failure to comply with his discovery order. No finding of bad faith.

Nature of Case: Breach of contract.

Electronic Data Involved: Defendant emails and text messages.

Keywords: “Strong circumstantial evidence” that the defendants had concealed documents. Adverse inference instructions and legal costs imposed by court.

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Court Approves Proposal to Redact or Withhold Irrelevant Information from Responsive Documents and Document Families

In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016)

In this opinion, the District Court considered Defendants’ proposal to redact or withhold certain irrelevant information from responsive documents and document families. In approving the proposal, the court cited Chief Justice John Roberts’ recent comments that recently amended Federal Rule of Civil Procedure 26 “crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” Reasoning that such comments “highlight” that “a party is not entitled to receive every piece of relevant information,” the court concluded that “it [was] only logical” that “a party is similarly not entitled to received every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld.”

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Van v. Language Line Servs. (United States District Court Northern District of California, 2016)

Key Insight: E-mail request must be proportional to the evidentiary needs of the case.

Nature of Case: Request for Production

Electronic Data Involved: e-mail

Keywords: DDJR, “tactical” gamesmanship, Van’s earing statements, Allison,

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