Archive: 2022

1
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)
3
Hamilton v. Oswego Community Unit School District 308 (N.D. Ill. 2022)
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Emerson Creek Pottery v. Emerson Creek Events (W.D. Va. 2022)
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Arconic Corp. v. Novelis Inc. (W.D. Pa. 2022)
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Consultus, LLC v. CPC Commodities (W.D. Mo. 2022)
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In re Diisocyanates Antitrust Litigation (W.D. Penn. 2022)

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

Hamilton v. Oswego Community Unit School District 308 (N.D. Ill. 2022)

Key Insight: Plaintiffs sought a motion for sanctions based on spoliation of evidence based on defendants’ failure to preserve a photograph of their child’s bruise that was taken by the school nurse that led to a call to the DCFS hotline. The court found that defendants did not have a duty to preserve the photograph because it was not reasonably foreseeable the instant litigation would be forthcoming. At the time the nurse deleted the photo there was no indication that plaintiffs were contemplating litigation against the school for anything related to the nurse’s visit or the report to DCFS. As such, there was no duty to preserve the photo. Even if there was a duty to preserve the photo, the court found that plaintiffs were not prejudiced by its deletion.

Nature of Case: Civil Rights

Electronic Data Involved: ESI, Photographs

Case Summary

Emerson Creek Pottery v. Emerson Creek Events (W.D. Va. 2022)

Key Insight: Plaintiff moved for spoliation sanctions against defendants relying on (1) an inadvertently disclosed email between defendant and his counsel discussing the preservation of emails, and (2) defendants did not produce a “mirror image” of the emails produced by third parties. Plaintiff contended the content of the email between defendant and his counsel is evidence that defendant failed to preserve ESI and defendant countered that it was part of a longer conversation between defendant and defense counsel about how defendants temporarily lost access to some of their emails during a server migration but later recovered them. The court denied plaintiff’s motion, finding that plaintiff failed to provide any evidence that defendants lost ESI and there was nothing to suggest that there were any additional emails that plaintiff had not received from defendants or third parties. If the court were to consider a remedy, the remedy requested by plaintiff was “draconian” and nearly the entirety of what defendants were expected to argue at trial, and the court would have to tailor a remedy to the particular discovery violation in question.

Nature of Case: Intellectual Property

Electronic Data Involved: Email

Case Summary

Consultus, LLC v. CPC Commodities (W.D. Mo. 2022)

Key Insight: Plaintiffs argue that defendants’ claims of privilege should be overruled due to the crime-fraud exception. Defendants withheld emails claiming work product and attorney-client privilege. Plaintiffs have not argued that the emails are not covered by either the work product doctrine or the attorney-client privilege. The purpose of the crime-fraud exception is to assure that the “seal of secrecy” between lawyer and client does not extend to communications “made for the purpose of getting advice for the commission of a fraud or crime.” In order to avail itself of the crime-fraud exception, the party seeking disclosure must satisfy a threshold showing of “a factual basis adequate to support a good faith belief by a reasonable person that the [party asserting the privilege] was engaged in intentional fraud and communicated with counsel in furtherance of the fraud.” The court found that plaintiffs’ assertions do not satisfy the threshold showing as they amount to conjecture since there is no other evidence that the communications were made in furtherance of a crime or fraud.

Nature of Case: Antitrust

Electronic Data Involved: Emails

Case Summary

In re Diisocyanates Antitrust Litigation (W.D. Penn. 2022)

Key Insight: This multidistrict litigation involves allegations that the defendants conspired to reduce supply and increase prices for methylene diphenyl diisocyanate (“MDI”) and toluene diisocyanate (“TDI”), chemicals used in the manufacture of polyurethane foam and thermoplastic polyurethanes. The parties filed competing motions to compel regarding the use TAR and search terms. Plaintiffs moved to compel an order requiring the defendants to use plaintiff’s proposed search terms, or alternatively, to establish a process by which disputed search terms could be adjudicated. The E-Discovery Special Master made a recommendation to deny the motions and directed the parties to his prior report and recommendation on the parties’ TAR protocols to address concerns he raised their regarding the parties’ methodologies.

Nature of Case: Antitrust MDL

Electronic Data Involved: ESI

Case Summary

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