Archive: December 2017

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Leidig v. Buzzfeed, Inc., No. 16 Civ. 542 (VM) (GWG) (S.D.N.Y. Dec. 19, 2017)
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Golon, Inc. v. Selective Ins. Co. (W.D. PA, 2017)
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Linior v. Polson, No. 1:17cv0013 (E.D. Va. Dec. 6, 2017)
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Youngevity International Corp. v. Smith (Southern District California, 2017)
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IDC Fin. Pub., Inc. v. Bonddesk Grp., LLC, No. 15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)
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Storey v. Effingham Cnty., No. CV 415-149, 2017 WL 2623775 (S.D. Ga. June 16, 2017)
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TLS Mgmt. & Mktg. Servs. LLC v Rodriguez-Toledo, No. 15-2121 (BJM), 2017 WL 1155743 (D.P.R. Mar. 27, 2017)
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Realpage, Inc., v. Enter. Risk Control, LLC, No. 4:16-CV-00737, 2017 WL 1180420 (E.D. Tex. Mar. 30, 2017)

Golon, Inc. v. Selective Ins. Co. (W.D. PA, 2017)

Key Insight: communications that occurred outside of the mediation but involve the mediator are not protected by the mediation privilege

Nature of Case: Insurance Bad Faith

Electronic Data Involved: documents used in mediation that Defendant claim to be protected by mediation privilege

Keywords: mediation privilege, reconsideration, under seal

View Case Opinion

Linior v. Polson, No. 1:17cv0013 (E.D. Va. Dec. 6, 2017)

Key Insight: Lack of prejudice or evidence of intent to deprive. Denied motion for dispositive sanctions under Rule 37(e). No evidence that higher quality recordings actually existed and were not preserved.

Nature of Case: Excessive force used during security screening

Electronic Data Involved: closed circuit video recordings

Keywords: preserve video recording, excessive force at the security screening.

View Case Opinion

Youngevity International Corp. v. Smith (Southern District California, 2017)

Key Insight: Lost ESI claim failed because there was no proof anything was lost and there was no clear duty to preserve.

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: archived email, facebook posts

Keywords: spoliation, lost ESI, duty to preserve

View Case Opinion

IDC Fin. Pub., Inc. v. Bonddesk Grp., LLC, No. 15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)

Key Insight: In this case, the court granted Plaintiff?s motion to compel production of over 600 documents previously produced with extensive non-responsive redactions applied. Defendants argued that the redactions were necessary to protect confidential business information that was not relevant to the underlying dispute and cited In re Takata Airbag Prods. Liab. Litig., 14-24009-CV-MORENO, 2016 WL 1460143 (S.D. Fla. Feb. 24, 2016), in support of their position. In Takata, the court allowed certain non-responsive redactions ?because of its concern that the documents contained competitively sensitive materials that may have been exposed to the public, despite protective orders.? In the present case, the court cited Burris v. Versa Prods., Inc., No. 07-3938 (JRT/JJK), 2013 WL 608742 (D. Minn. Feb. 19, 2013) for the propositions that non-responsive redactions are not explicitly supported by the federal rules and that allowing such redactions has the potential for abuse, where parties would be incentivized to ?hide as much as they dare.? The court further reasoned that Defendants did not assert any privilege or provide a ?compelling reason? for their ?extensive? redactions and that they failed to explain why the existing protective order did not provide adequate protection. Thus, the court concluded that it ?[did] not see a compelling reason to alter the traditionally broad discovery allowed by the rules by letting the defendants unilaterally redact large portions of their responsive documents on relevance grounds? and granted Plaintiff?s motion to compel

Electronic Data Involved: ESI

Storey v. Effingham Cnty., No. CV 415-149, 2017 WL 2623775 (S.D. Ga. June 16, 2017)

Key Insight: For Defendants? negligent (or even reckless) failure to preserve relevant video footage following Plaintiff?s release from jail despite the ?distinct possibility? of litigation in light of the injuries Plaintiff suffered while in custody and his specific threats to sue, the court imposed sanctions to redress the prejudice to Plaintiff and ordered that the court would tell the jury that the video was not preserved and that the parties could present evidence and argument regarding that failure for the jury?s consideration

Electronic Data Involved: Surveillance footage from jail

TLS Mgmt. & Mktg. Servs. LLC v Rodriguez-Toledo, No. 15-2121 (BJM), 2017 WL 1155743 (D.P.R. Mar. 27, 2017)

Key Insight: For an individual defendant?s admitted disposal of his laptop and deletion of the contents of his external drive after transferring the contents to a thumb drive despite Plaintiff?s request to preserve and pending litigation, the court reasoned that Plaintiff ?plausibly suggests? that the laptop and hard drive ?might have? contained relevant ESI based on Defendant?s admitted accessing and copying of confidential files and imposed sanctions, including an adverse inference and an order for Defendants to permit and pay for examination of the at-issue external drive, but the court declined to impose sanctions for the individual defendant?s loss of his cellphone ?based on the current state of the evidentiary record? where Plaintiff failed to proffer evidence sufficient to suggest that the loss was not inadvertent or to clarify the approximate time of the loss

Electronic Data Involved: Laptop, ESI, cellular phone

Realpage, Inc., v. Enter. Risk Control, LLC, No. 4:16-CV-00737, 2017 WL 1180420 (E.D. Tex. Mar. 30, 2017)

Key Insight: The Court granted Plaintiffs? Motion to Compel Production of Defendants? computer images. Defendants made their source code available to Plaintiffs who then identified comments made prior to the produced source code date. Defendants insisted the pre-July 2013 source code was destroyed when Plaintiffs? former employee became a full-time employee of Defendants. The Court found that Defendants provided a sufficient explanation of good faith destruction of pre-July 2013 code but that limited forensic imaging could recover important deleted materials. The Court held that a tailored examination by a third-party forensic expert of Defendants? computers is appropriate to determine whether the pre-July code is recoverable or to assist in cross-examination as to its destruction.

Electronic Data Involved: Mirror image

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