Archive: March 2017

1
Hawa v. Coatesville Area Sch. Dist., No. 15-4848 (E.D. Pa. Mar. 16, 2017)
2
United States ex rel. Reaster v. Dopps Chiropractic Clinic, LLC (D. Kan., 2017)
3
Liguria Foods, Inc. v. Griffith Laboratories, Inc., C 14-3041-MWB (N.D. Iowa Mar. 13, 2017)
4
Kellgren v. Petco Animal Supplies, Inc. (S.D. Cal., 2017)
5
Privilege Waived as to Unprotected Information on File Share Site
6
Alabama Aircraft Industries v. The Boeing Company, 2:11-cv-03577-RDP (N.D. Alabama, Southern Division, 2017)
7
Healthwerks, Inc. et al. v. Stryker Spine, et al., No. 14-93 (E.D. Wisc. Mar. 6, 2017)
8
Ensing v. Ensing, et al., No 12591 (Del. Ct. Chancery Mar. 6, 2017)
9
Judge Peck Issues “Wake-up Call” Regarding Appropriate Responses to Discovery
10
Citibank v. Super Sayin Publishing (Southern District of NY, 2017)

Hawa v. Coatesville Area Sch. Dist., No. 15-4848 (E.D. Pa. Mar. 16, 2017)

Key Insight: All data stored as picture files therefore unsearchable

Nature of Case: Employment Discrimination

Electronic Data Involved: “picture files”; text messages; email; ESI; hard drives; database

Keywords: Cost shifting; Inaccessible; data stored as picture files; searchablity

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United States ex rel. Reaster v. Dopps Chiropractic Clinic, LLC (D. Kan., 2017)

Key Insight: Social media information is not specially protected, but discovery requests should be tailored so as to not become fishing expeditions.

Nature of Case: employment discrimination, federal false claims act

Electronic Data Involved: Social media postings

Keywords: Social media, proportionality

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Liguria Foods, Inc. v. Griffith Laboratories, Inc., C 14-3041-MWB (N.D. Iowa Mar. 13, 2017)

Key Insight: Attorneys on both sides had used multiple boilerplate objections when responding to discovery requests. Judge considered sanctions, but did not sanction either side. Was to be considered a warning about using boilerplate objections though.

Nature of Case: Breach of Warranty

Electronic Data Involved: Various ESI

Keywords: boilerplate; objections

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Kellgren v. Petco Animal Supplies, Inc. (S.D. Cal., 2017)

Key Insight: Discovery request for managers’ text messages was ruled overbroad and not likely to be useful due to store policy that managers only communicate via email or voicemail.

Nature of Case: Fair Labor Standards Act dispute

Electronic Data Involved: text messages, email, communication methods the managers could have possibly used

Keywords: Text messages, overbreadth, overbroad, relevance

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Privilege Waived as to Unprotected Information on File Share Site

Harleysville Ins. Co. v. Holding Funeral Home, Inc., No. 1:15cv00057 (W.D. Va. Feb. 9, 2017)

In this case, the court found that the placement of privileged information on a file share site and dissemination of the hyperlink to access that information without additional protections (e.g, password protection) constituted a failure to take reasonable steps to protect the information and that the attorney-client privilege and work-product protections were waived.  Notably, however, because defense counsel accessed the information but failed to notify Plaintiff’s counsel of the possible production of privileged materials, they were ordered to pay Plaintiff’s fees and costs in bringing the motion to disqualify them, which was denied.

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Alabama Aircraft Industries v. The Boeing Company, 2:11-cv-03577-RDP (N.D. Alabama, Southern Division, 2017)

Key Insight: Boeing deleted Pemco ESI from a high level employee and removed 2 CD’s containing Pemco ESI.Court concluded Boeing acted with intent and ordered an adverse inference instruction for the jury if it goes to trial and ordered Boeing to pay attorney’s fees and costs.

Nature of Case: contract dispute/MOA termination

Electronic Data Involved: deleted electronic records; 2 missing CDs with ESI

Keywords: spoliation, deletion, prejudice, adverse inference

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Healthwerks, Inc. et al. v. Stryker Spine, et al., No. 14-93 (E.D. Wisc. Mar. 6, 2017)

Key Insight: Plaintiffs files motion to compel text messages in April 2016, Discovery had closed in November 2015. Defendant’s failure to realize that they couldn’t search specifically for text messages is not basis for granting motion to compel so late. Decision was later vacated.

Nature of Case: Contract Dispute

Electronic Data Involved: Text Messages

Keywords: Text messages; after discovery closed

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Judge Peck Issues “Wake-up Call” Regarding Appropriate Responses to Discovery

Fischer v. Forrest, —F. Supp. 3d—, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017)

Judge Peck has “once again” issued a “discovery wake-up call,” this time regarding the effects of the 2015 amendments on the rules of discovery and in particular on Rule 34, addressing proper responses to requests for production. Specifically, the court noted that “one change that affects the daily work of every litigator is to Rule 34,” and instructed that “[m]ost lawyers who have not changed their ‘form file’ violate one or more (and often all three)” of the changes to the rule. Those changes require that “responses to discovery requests must”:

  • State grounds for objections with specificity;
  • An objection must state whether any responsive materials are being withheld on the basis of that objection; and
  • Specify the time for production and, if a rolling production, when production will begin and when it will be concluded.

In these related cases, the court concluded that Defendants’ responses to discovery violated the discovery rules, including by failing to comply with the requirements of Rule 34(b) and failing to recognize and appropriately respond to the amendments to Rule 26(b)(1).

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Citibank v. Super Sayin Publishing (Southern District of NY, 2017)

Key Insight: Updated spoliation rule was correctly applied to motion regarding earlier conduct because the party cited the updated rule

Nature of Case: Negotiable instrument

Electronic Data Involved: deleted electronic records, emails, text messages

Keywords: retroactive application discovery rule, ESI spoliation sanctions

Identified Local Court Rule(s): S. District N Local Civil Rule 7.1(a)(1)

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