Archive: December 2016

1
Ye v. Veissman, Inc., No. 14-cv-01531, 2016 WL 950948 (N.D. Ill. Mar. 7, 2016)
2
Broadspring, Inc. v. Congoo, LLC, No. 13-cv-1866(RJS), 2016 WL 817449 (S.D.N.Y. Feb. 24, 2016)
3
Wilmington Trust Co. v. AEP Generating Co., No. 2:13-cv-01213, 2016 WL 860693 (S.D. Ohio Mar. 7, 2016)
4
Magdaluyo v. MGM Grand Hotel, LLC, no. 2:14-cv-01806-RFB-GWF, 2016 WL 614397 (D. Nev. Feb. 16, 2016)
5
Ericksen v. Kaplan Higher Ed., LLC, No. RDB-14-3106, 2016 WL 695789 (D. Md. Feb. 22, 2016)
6
Lewis v. Bellows Falls Congregation of Jehovah?s Witnesses, No. 1:14-cv-205, 2016 WL 589867 (D. Vt. Feb. 11, 2016)
7
Theidon v. Harvard Univ., NO. 15-cv-10809-LTS, 2016 WL 447447 (D. Mass. Feb. 4, 2016)
8
Marten Transp. Ltd. v. Platform Advertising, Inc., No. 14-cv-02464-JWL-TJJ, 2016 WL 492743 (D. Kan. Feb. 8, 2016)
9
Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2015 WL 5027899 (E.D.N.Y. Aug. 25, 2015); Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2016 WL 128154 (E.D.N.Y. Jan. 12, 2016)
10
Spear Mktg., Inc. v. Bancorpsouth Bank, No. 3:12-CV-3583-B, 2016 WL 193586 (N.D. Tex. Jan. 14, 2016)

Ye v. Veissman, Inc., No. 14-cv-01531, 2016 WL 950948 (N.D. Ill. Mar. 7, 2016)

Key Insight: Where Defendants requested a full archive of social media contents from the decedent and her next of kin from 2007 through the date of Plaintiff?s death in April 2013, the court acknowledged that some social media content may be relevant to the claims and defenses at issue but found that where the request was not tailored to relevant content or limited to a reasonable period of time it was overbroad and Defendants? motion to compel was denied

Nature of Case: Wrongful death

Electronic Data Involved: Social media (Facebook)

Wilmington Trust Co. v. AEP Generating Co., No. 2:13-cv-01213, 2016 WL 860693 (S.D. Ohio Mar. 7, 2016)

Key Insight: Court granted in part Plaintiffs? motion to compel additional searching in two previously excluded timeframes, denying the motion as to documents generated at a time in which ?nothing of significance was happening? as indicated by Defendants and because the cost and burden of the requested discovery would violate the rule of proportionality but granting the motion as to information created after the filing of the complaint, where the court rejected Defendants? claim that nothing created after that time could have possibly been relevant and noted that Defendants failed to present any specific argument about undue burden, apart from having disassembled their review teams

Nature of Case: Breach of contract

Electronic Data Involved: ESI from previously unsearched timeframes

Magdaluyo v. MGM Grand Hotel, LLC, no. 2:14-cv-01806-RFB-GWF, 2016 WL 614397 (D. Nev. Feb. 16, 2016)

Key Insight: Where Plaintiff specifically requested preservation of certain video that was not preserved, court concluded that Defendant ?simply ignored? the request and imposed an adverse inference that the video would have been favorable to Plaintiff; for Defendant?s failure to preserve surveillance video of alleged harassment for which there was no specific request to preserve, court reasoned that Defendant had a duty to investigate the allegation and preserve any video that existed of the incident and concluded that the jurors would be instructed that ?Defendant had a duty to preserve the video if it existed and that they may, but are not required to, infer that the video recording would have been favorable to the Plaintiff?

Nature of Case: Employment litigation (discrimination, harassment, etc.)

Electronic Data Involved: Video surveillance footage

Ericksen v. Kaplan Higher Ed., LLC, No. RDB-14-3106, 2016 WL 695789 (D. Md. Feb. 22, 2016)

Key Insight: Where forensic examination revealed that immediately prior to that examination Plaintiff had run ?several ?optimizer? or ?data destruction programs?? that destroyed ?some data? the court found that Plaintiff acted willfully and, addressing Defendant?s request for dismissal, cited newly amended Rule 37(e) for the proposition that the ?Court need impose ?measures no greater than necessary to cure the prejudice?? and ordered that Plaintiff would be precluded for presenting evidence that Defendants?because of her actions?could not confirm as authentic but reasoned that dismissal was not necessary

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Lewis v. Bellows Falls Congregation of Jehovah?s Witnesses, No. 1:14-cv-205, 2016 WL 589867 (D. Vt. Feb. 11, 2016)

Key Insight: Court granted motion to compel relevant contents of Plaintiff?s Facebook account but was not ?persuaded that unfettered access was warranted? and therefore ordered Plaintiff?s counsel to review Plaintiff?s ?entire Facebook account? to determine the relevance of the material therein, as determined by the court?s identification of 7 categories of relevant materials

Nature of Case: [N]egligence based on a duty (1) to perform an undertaking and (2) to supervise

Electronic Data Involved: Social Media contents (Facebook)

Theidon v. Harvard Univ., NO. 15-cv-10809-LTS, 2016 WL 447447 (D. Mass. Feb. 4, 2016)

Key Insight: Where Defendant objected to the production of duplicate documents but agreed to provide a spreadsheet with metadata for every document and to produce duplicates identified by Plaintiff, court concluded that Plaintiff had not demonstrated that Defendant?s proposal was unreasonable and denied her motion to compel

Nature of Case: Denial of tenure based on gender discrimination and retaliation

Electronic Data Involved: ESI

Marten Transp. Ltd. v. Platform Advertising, Inc., No. 14-cv-02464-JWL-TJJ, 2016 WL 492743 (D. Kan. Feb. 8, 2016)

Key Insight: Court denied motion for spoliation sanctions where, although a general duty to preserve arose in 2013, the duty to preserve the internet history of the at-issue employee did not arise until June 2015, which was after the employee had been moved to a different work station

Nature of Case: Trademark infringement, unfair competition

Electronic Data Involved: Internet history

Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2015 WL 5027899 (E.D.N.Y. Aug. 25, 2015); Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2016 WL 128154 (E.D.N.Y. Jan. 12, 2016)

Key Insight: Addressing motion for sanctions for the loss of emails in third party custody (GoDaddy), Iron Mountain back ups, and miscellaneous computer files, the Magistrate Judge concluded: 1)that Exeter had a duty preserve reasoning that since 2009 it had been involved in other litigation involving the disclosure of its books, records and financial documents, and that Exeter therefore knew or should have known that the documents ?could be relevant to future litigation? and also found that even if the filing of the 2009 lawsuit (involving different parties) did not trigger the preservation obligation, receipt of a 2009 subpoena should have and that in any event, the duty to preserve arose no later than Exeter?s 2011 bankruptcy filing; 2)that Exeter?s loss of ESI was ?intentional and done in bad faith? absent evidence of any effort to ensure preservation or to contact the third-party providers to inform them of the duty; and 3) that as a result of the intentional loss, a presumption of relevance was warranted and therefore recommended a sanction of an permissive adverse inference at trial; upon Exeter?s objection, District Court adopted the sanctions recommendation entirely and indicated that ?[W]hen there has been intentional destruction of evidence by an officer of a closely held corporation, other officers of the closely held entity may be subject to sanctions, even if they did not have direct control of the evidence at issue.?

Nature of Case: Plaintiff claims that Defendants defrauded Exeter?s creditors by transferring funds from Exeter to themselves, certain trusts, and other entities.

Electronic Data Involved: Email in third-party custody, Iron Mountain backups, miscelaneous ESI

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