Archive - June 2021

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Krishnan v. Cambia Health Solutions, Inc. (W.D. Wash. 2021)
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Cody v. City of St. Louis (E.D. Mo. 2021)
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Allen v. PPE Casino Resorts Maryland, LLC (D. Md. 2021)
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Oro BRC4, LLC v. Silvertree Apartments, Nos. 2:19-cv-4907, 2:19-cv-5087 (S.D. Ohio, June 10, 2021).
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Lake v. Charlotte County Board of County Commisioners (M.D. Fla. 2021)
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Haywood v. Wexford Health Sources, Inc. (N.D. Ill. 2021)
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AnywhereCommerce, Inc. v. Ingenico, Inc. (D. Mass. 2021)
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In re: CCA Recordings 2255 Litigation v. United States of America (D. Kan. 2021)
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FTC v. Vyera Pharms., LLC (S.D.N.Y. June 1, 2021)

Krishnan v. Cambia Health Solutions, Inc. (W.D. Wash. 2021)

Key Insight: Defendant cannot be compelled to produce text messages from employees’ personal cell phones because they did not have possession, custody, or control of the devices. An employer has possession, custody, or control of a cell phone when the employer issued the cell phone, the cell phone is used for business purposes, and the employer has a legal right to obtain communications from the cell phone.

An email does not become privileged simply by including counsel as a recipient to an email. If the email was not sent with the purpose of obtaining legal advice, it is not privileged.

An independent forensic examination of electronic devices for electronic communications is appropriate when a party intentionally delays or withholds relevant and discoverable communications.

Nature of Case: Wrongful Termination, Employment Law

Electronic Data Involved: Text Messages, Email

Case Summary

Allen v. PPE Casino Resorts Maryland, LLC (D. Md. 2021)

Key Insight: Plaintiffs sought a protective order to prevent defendant from obtaining ESI from five different social media platforms they were active on. The court found that while a plaintiff’s social media postings could be relevant to a claim for “garden variety” emotional distress damages, some caution was necessary, such that a “deeper dive” into social media postings may be justified only in cases involving “severe and specific emotional distress” allegations. Since plaintiff alleged “garden variety” emotional distress stemming from defendant’s allegedly wrongful conduct, the discovery must be narrowed as follows: “specific references to serious, non-transient emotional distress in connection with the incidents described in their Complaint,” i.e., diagnosable conditions, visits to professionals for treatment of distress, treatment regimens and conversations regarding same; time frame limited from date contained in complaint of onset of difficulties to the date of filing of complaint; production limited to information found in a typical download of data from plaintiffs’ own accounts and plaintiffs “need not engage in extraordinary efforts in obtaining responsive information.”

Nature of Case: Employment discrimination

Electronic Data Involved: Social media posts

Case Summary

Oro BRC4, LLC v. Silvertree Apartments, Nos. 2:19-cv-4907, 2:19-cv-5087 (S.D. Ohio, June 10, 2021).

Key Insight: Plaintiff sought a motion for spoliation sanctions based on defendant’s failure to prepare its Rule 30(b)(6) deponent to testify on topics related to ESI preservation and collection, and for spoliation sanctions related to the failure to preserve ESI. The court granted sanctions for defendant’s failure to prepare its 30(b)(6) designee, finding: “The production of an unprepared witness is tantamount to a failure to appear, and warrants the imposition of sanctions.” Defendant offered its head of IT as the corporate designee. He received the deposition notice less than 72 hours before the deposition, spent about 6 hours preparing to testify (approximately 10 minutes per topic), did not review any documents other than his own emails, and did not speak or communicate with other employees to gather information on the topics he was supposed to testify about. The court ordered a second 30(b)(6) deposition, required defendant to pay the reasonable costs and expenses associated with attending the second deposition and fees for plaintiff’s ESI consultant to attend, and awarded fees associated with having to bring the motion to compel. On the issue of failure to preserve ESI evidence, the court concluded it was premature to address this issue until the second 30(b)(6) deposition, which would cover topics relating to defendant’s litigation hold efforts.

Nature of Case: Breach of contract

Electronic Data Involved: ESI business documents and electronic devices

Case Summary

Lake v. Charlotte County Board of County Commisioners (M.D. Fla. 2021)

Key Insight: Communications between a party and its hired legal consultant are work product if they are generated in anticipation of litigation. Work product containing mental impressions, conclusions, opinions, or legal theories concerning the litigation is rarely discoverable and enjoy “near absolute immunity.” Documents subpoenaed from the legal consultant still retain work product privilege.

Instead of providing privilege logs, the court allowed the legal consultants to categorically withhold or redact privileged communications so long as they provided a certification that none of withheld or redacted documents were distributed to or reviewed by any other third parties. In lieu of such certification, the legal consultants would have to produce a privilege log.

Nature of Case: Property, Eminent Domain

Electronic Data Involved: Email, Electronic Communications

Case Summary

AnywhereCommerce, Inc. v. Ingenico, Inc. (D. Mass. 2021)

Key Insight: The court granted reconsideration of plaintiffs’ motion to compel discovery of documents in the possession of a corporate defendant in France. In a prior order, the court found that the GDPR did not preclude the court from ordering defendants to produce evidence, but based the order on plaintiffs’ representation that much of the requested information was located in the U.S. and therefore in the possession of domestic defendants. Thus, the court bifurcated its analysis to exclude any documents in the possession of French defendants. On reconsideration, plaintiffs claimed the important and relevant documents were located in France. Applying the factors from Restatement (Third) of Foreign Relations Law § 442(1)(c), the court found they weighed in favor of disclosure, together with the entry of a protective order that would protect France’s interests under the GDPR.

Nature of Case: Breach of contract

Electronic Data Involved: ESI generally

Case Summary

FTC v. Vyera Pharms., LLC (S.D.N.Y. June 1, 2021)

Key Insight: Vyera’s company policy was to issue employees iPhones that were backed up through iCloud but one executive, Mithani, whose conduct was central to the government’s antitrust claims, had requested and received a Blackberry as his company phone, which had no systemic back up of text communications. Despite being under an obligation to preserve evidence, the executive confirmed deleting texts on his work and personal mobile phones before and after receiving a hold notice from Vyera, and wiped his work phone upon leaving the company. A forensic expert confirmed no data could be retrieved or restored from the Blackberry. The court concluded Vyera’s conduct constituted spoliation and warranted sanctions as plaintiffs were prejudiced by Vyera’s conduct and the former executive acted intentionally to deprive plaintiffs of discoverable information. The court declined to adopt an adverse inference sanction and instead adopted Vyera’s proposed sanction that it be precluded from calling the former employee to testify in its defense or introducing into evidence documents that he authored.

Nature of Case: Antitrust

Electronic Data Involved: Text messages

Case Summary

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