March 2020 – Electronic Discovery Law

Lundine v. Gates Corp. (D. Kan. 2020)

Mar 30 2020

Key Insight: Plaintiff moved to compel defendant to produce ESI of class-member pay data in Excel format or native format, or in the alternative, to allow her experts to access the data and download it. Defendant opposed the motion, asserting it had adequately responded by producing the data in PDF format. The court denied plaintiff’s motion. Neither party disputed that defendant produced the information in the form in which it is ordinarily maintained and the data in PDF form is still usable. “[R]equiring defendant to re-produce data in Excel format would be duplicative and unduly burdensome.”

Nature of Case: Wage and Hour Class Action

Electronic Data Involved: Payroll Data

Case Summary

In re Fluor Intercontinental, Inc., 803 Fed.Appx. 697 (4th Cir. Mar. 25, 2020)

Mar 25 2020

Key Insight: Disclosure of summary of internal investigation did not waive privilege of underlying documents. Waiver not inferred simply because of disclosure of materials on same topic.

Nature of Case: employment dispute

Electronic Data Involved: internal investigation files

Keywords: waiver, privilege

View Case Opinion

Simpson v. J.L. Guess et al. (Middle District of Florida, 2020)

Mar 20 2020

Key Insight: Proportionality need for records not related to the claim; Relevance; Access to records; Parties resources; Whether the burden or expense of the proposed discovery outweighs it’s likely benefit

Nature of Case: Prisoner Pro Se – Unconstitutional use of excessive force by corrections officers

Electronic Data Involved: Hard copy (discipline records/ Mail logs); collection

Keywords: Compel; Sanctions; Declaration of counsel; Malicious and sadistic purpose to inflict harm; State of Mind; Veracity; narrowed requests; meet and confer;

View Case Opinion

Noah’s Wholesale, LLC v. Covington Specialty Insurance Co. (S.D. Fla. 2020)

Mar 13 2020

Key Insight: The work product doctrine applies when litigation is reasonably foreseeable. Generally, litigation is anticipated when an insurance claim is denied. Here, the lawsuit was filed before the claim was formally denied, but after Defendant began investigating the legitimacy of the claim and evaluating potential defenses and exemptions. Defendant argues litigation was anticipated immediately upon receipt of Plaintiff’s insurance claim. Plaintiff contends that litigation was not anticipated until the lawsuit was filed. The Court disagreed with both positions. After the insurance claim was filed, the primary purpose of the documents created was to gather information to evaluate the claim not in anticipation of litigation. The Court found that litigation was reasonably anticipated when Plaintiff informed Defendant he had retained counsel. Defendant responded to the notification as if litigation were imminent. All documents created from that point forward were created in anticipation of litigation. As such, those documents are protected work product.

Nature of Case: Insurance Claim, Theft of business property

Electronic Data Involved: Business Records, Insurance Claim File

Case Summary

Noahs Wholesale, LLC v. Covington Specialty Insurance Co. (Southern District of Florida, 2020)

Mar 13 2020

Key Insight: when work product doctrine comes into play

Nature of Case: theft of business property insurance claim

Electronic Data Involved: insurance file claim work product claim

Keywords: work product doctrine, anticipation of litigation

View Case Opinion

U.S. v. Morgan (Western District of New York, 2020)

Mar 06 2020

Key Insight: encryption

Nature of Case: Conspiracy to commit wire fraud and bank fraud; Money Laundering conspiracy

Electronic Data Involved: Servers, computers, storage media, iPhone

Keywords: Search warrant; “GrayKey” program to access passcodes; Unreasonable retention of the iPhone; Motion for Return of Property; 3 part test – 1.entitled to possession, 2. property not contraband, 3. either seizure was illegal or the government’s need for the property as evidence has ended; evidentiary burden

View Case Opinion

IN RE: Bard IVC Filters Products Liability Litigation (D. Arizona, 2020)

Mar 05 2020

Key Insight: “No-eyes-on” document production;

Nature of Case: Products Liability MDL

Electronic Data Involved: Hard copy and ESI productions;

Keywords: MDL; Discovery orders; Production

View Case Opinion

Shelton v. Fast Advance Funding, LLC (3rd Circuit, 2020)

Mar 03 2020

Key Insight: defendant argued that it had no obligation to respond to timely discovery requests because the due date of the discovery was after the discovery deadline.

Nature of Case: telemarketing violation

Electronic Data Involved: requests for admission

Keywords: discovery deadline, requests for admission

View Case Opinion

Archive - March 2020