Archive: March 2022

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In re Actos End Payor Antitrust Litig. (S.D.N.Y. 2022)
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Europe v. Equinox Holdings, Inc. (S.D.N.Y. 2022)
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Famulare v. Gannett Co., Inc. (D.N.J. 2022)
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MasterObjects, Inc. v. Amazon.com, Inc. (N.D. Cal. 2022)
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Aminov v. Berkshire Hathaway Guard Insurance Companies (E.D.N.Y. 2022)

In re Actos End Payor Antitrust Litig. (S.D.N.Y. 2022)

Key Insight: On plaintiff’s motion to compel, the magistrate judge ruled that defendant Takeda was to produce “all responsive ESI to Plaintiffs, including earlier-in-time emails.” In its production, Takeda had used email threading by which a party reviews and produced the most-inclusive email in a thread. The Discovery Protocol did not permit that approach. The magistrate emphasized the need for parties to have early discussions regarding ESI to avoid later misunderstandings and disputes. Takeda’s exclusion of lesser included emails from production resulted in the exclusion of metadata associated with the earlier chain emails. The magistrate declined to impose email threading on plaintiffs and recognized that while requiring Takeda to produce earlier-in-time emails would cause additional burden, such burden is not undue since Takeda agreed to the Discovery Protocol and likely has already reviewed many of the emails at issue.

Nature of Case: Antitrust

Electronic Data Involved: Email

Case Summary

Europe v. Equinox Holdings, Inc. (S.D.N.Y. 2022)

Key Insight: Plaintiff brought a motion for sanctions alleging defendants failed to preserve a key piece of evidence (the September 2019 managers’ schedule from the month when she was terminated) in her employment discrimination suit. The court concluded that defendants should have taken steps to preserve the schedule in December 2019 when plaintiff notified defendants that she intended to initiate litigation, and they failed to do so. The court noted that the harshest sanction of adverse inference was not appropriate because it did not appear by clear and convincing evidence that the failure to preserve the evidence was done in order to gain an advantage in the litigation. The court ordered that plaintiff could present to the jury that the September 2019 schedule was lost and defendants could not compare her lateness to other employees in September 2019 or argue that her co-workers’ lateness in September 2019 was less than hers.

Nature of Case: Employment Discrimination

Electronic Data Involved: Business Documents

Case Summary

Famulare v. Gannett Co., Inc. (D.N.J. 2022)

Key Insight: The discovery dispute involved whether defendants are obligated to produce screenshots of certain computer generated reports from defendants’ computer program known as Salesforce. Salesforce maintains and memorializes various performance metrics of individual account executives. Plaintiff generated and printed some of her own performance metrics and seeks in discovery the same reports for certain other defendant employees for purposes of comparison. Defendants assert that the reports are not free-standing, fixed reports but are screenshots of the Salesforce dashboard and they cannot generate reports but can only provide her with the underlying historical data in Excel, which they already provided. The court affirmed the magistrate judge’s opinion, ruling that whether Salesforce is incapable of generating and printing the reports as they maintain it is would need to be determined by a Rule 30(b)(6) deposition. The functionality of the Salesforce data is the core issue in the motion and the court reiterated the magistrate’s sentiments that until the deposition is completed, the nature of the Salesforce program and its capabilities are unknown.

Nature of Case: Employment Discrimination

Electronic Data Involved: Screenshots

Case Summary

MasterObjects, Inc. v. Amazon.com, Inc. (N.D. Cal. 2022)

Key Insight: Defendant filed a motion for sanctions based on violation of a prior discovery order and sought spoliation sanctions. The Magistrate Judge issued a report on the spoliation issue. Plaintiff’s law firm was attacked by hackers, which rendered files and mailboxes inaccessible without a recovery key set by the attackers. Both the FBI and the firm’s insurer advised the firm not to pay the hackers a ransom. The firm attempted to restore the data on its servers with some success but everything prior to the final months of 2016 has been lost. There were some printed copies of the archival copies of digital records but plaintiff’s counsel maintained it did not have a duty to keep a duplicate paper file of its digital records. The court noted that there was no evidence of any physical document (other than a copy of an electronically stored document) that was destroyed, and the spoliation doctrine does not require a party to maintain identical copies of documents. The court noted the data is not “lost” and exists on the hard drives and although access has been blocked, it can be accessed if a key is provided or a technological work-around is discovered. The court concluded there is no evidence the loss occurred because plaintiff’s firm failed to take reasonable steps to preserve it. Finally, the court found defendant could not establish prejudice and that there was an intent to deprive defendant of the evidence. It refused to apply a new kind of spoliation argument that plaintiff’s counsel’s firm “lost” its data because it refused to pay the ransom, finding “there is no logic or beneficial public policy in compelling a crime victim to pay ransom to a criminal in order to avoid being labeled a spoliator.”

Nature of Case: Intellectual Property

Electronic Data Involved: ESI

Case Summary

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