eDiscovery Import – Page 18 – Electronic Discovery Law

RG Steel Sparrows Point LLC v. Kinder Morgan Bulk Terminals Inc., No. WMN-09-1668, 2016 WL 1377405 (D. Md. Apr. 7, 2016)

Dec 01 2016

Key Insight: Court rejected reasoning that ESI-related costs were recoverable because ?the parties in this case agreed ? to the form of production for ESI? and found that ?the parties? stipulation regarding the production of ESI cannot make ESI-related costs ?necessary? ? unless the costs are copying costs? which the court was unable to discern from Plaintiff?s submission and thus the court declined to tax the ESI-related costs requested; court?s analysis noted 4th Circuit precedent indicating that ?making copies for purposes of cost recovery ? is expressly limited to the cost of converting native files to non-editable formats and copying those files onto discs.?

Electronic Data Involved: Taxable costs

Archer Daniels Midland Co. v. Chemoil Corp., 15-2199, 2016 WL 9051173 (C.D. Ill. Oct. 19, 2016)

Dec 01 2016

Key Insight: Court denied Defendant?s motion to compel production of emails from Plaintiff?s former employee where Plaintiff?s initial production included some communications from the at-issue employee, where Plaintiff had already conducted a second search that did not yield additional documents, where the emails of the former employee had been moved off of active servers thus requiring the initiation of disaster recovery protocols to conduct an additional search, and where the emails of other parties to the potentially relevant communications remained on the active servers and had also been searched; court also noted that Defendant had deposed the former employee for 6 hours

Electronic Data Involved: Email of former employee

Sky Med. Supply Inc. v. SCS Support Claim Serv. Inc., No. 12- 6383, 2016 WL 4703656 (E.D.N.Y. Sept. 7, 2016)

Dec 01 2016

Key Insight: Magistrate judge denied defendant?s motion to compel plaintiff to organize and label its document production ?so that it corresponds to the categories in the request? because the discovery documents were immediately available for inspection at plaintiff counsel?s office in electronic format already organized, identifiable, and searchable by claim number; defendants needing only to execute claims number searches to identify documents. Thus, the court concluded that unless and until an inspection is undertaken and shown to be unduly burdensome, the plaintiff?s offer to permit inspection of database comports with ?both the letter and spirit of rule 34.?

Electronic Data Involved: ESI

U.S. v. Wells Fargo Bank, No. 1:06-CV-0547-AT, 2016 WL 7365195 (N.D. Ga. May 26, 2016)

Dec 01 2016

Key Insight: The Court granted Defendant?s Motion for a Protective Order and held that under limited circumstances, a party may seek to share reasonable costs related to reviewing documents prior to their production. The Court considered vendor fees to be a valid target for cost-sharing under the facts of this case: discovery spanned more than a decade, the costs currently under review were a small fraction of the costs incurred by Defendant in discovery and there were no concerns that cost shifting would deter Relators or others. Further, Defendant showed that ?almost the entirety of its requested costs were incurred in attempting to respond to Relators? discovery requests, and not incurred as a result of a self-interested privilege review.?

Electronic Data Involved: Electronic mortgage loan files

Ballai v. Kiewit Power Constructors, Co., No. 110166, 2015 WL 423795 (Kan. Ct. App. Jan. 23, 2015)

Dec 01 2015

Key Insight: Court of Appeals of Kansas found no abuse of discretion by the district court for failing to order sanctions related to the recycling of the laptop computer used by appellant during his employment, as the district court did not issue an order to preserve and there is no statutory or common-law duty to preserve evidence in Kansas; court further found no abuse of discretion by the district court for excluding evidence of recycling the computer; court also found that a chat log was relevant, material, and probative and the appellant was protected from prejudice because the district court only allowed the redacted version of the chat log into evidence.

Nature of Case: Employment

Electronic Data Involved: Laptop; Chat Log

Advantor Sys. Corp. v. DRS Technical Servs., Inc., No. 6:14-cv-533-Orl-31DAB, 2015 WL 403308 (M.D. Fla. Jan. 28, 2015)

Dec 01 2015

Key Insight: The Magistrate Judge denied Advantor?s motion for sanctions against DRS for intentional bad faith spoliation of evidence, finding that sanctions were not warranted because there was no showing that the destroyed evidence was critical to litigate the case issues. DRS had a duty to preserve the contents of a laptop that was used by an employee who was hired away from Advantor and subsequently fired by DRS after receiving notice from Advantor that litigation was reasonably anticipated. Despite having a duty to preserve the contents of the laptop, DRS reformatted the laptop and erased files that were potentially proprietary to Advantor and in violation of their Nondisclosure Agreement. However, Advantor failed to show that the files contained relevant information critical to the case or that DRS was aware the files were on the laptop. Despite the unexplained reformatting of the laptop, sanctions were not granted.

Nature of Case: Employment

Electronic Data Involved: Hard Drive

Lutzeier v. Citigroup Inc., No. 4:14-cv-00183-RLW, 2015 WL 430196 (E.D. Mo. Feb 2, 2015)

Dec 01 2015

Key Insight: Addressing Plaintiff?s motion to add custodians, the court granted the motion, in part, but declined to compel the addition of high-level executives absent a showing that they had ?unique or personal knowledge of the subject matter that warrants their information?; Court found that the current ?search criteria adequately ensure[d]? the production of relevant documents and declined Plaintiff?s request for additional search terms except the phrase ?consent order? where confusion existed as to the existence of ?other? consent orders relevant to the case; where plaintiff was unsatisfied with Defendant?s production of more than 46,000 documents ?without providing any indication as to which documents are responsive to which of Plaintiff?s fifty-eight (58 ) enumerated requests,? but where the defendant represented that their production was ?fully text-searchable and contain[s] metadata permitting Plaintiff to identify, among other things, the custodians of the document, recipients, date and other key information,? the court found that the production was ?in a reasonably useable form or forms and/or the production is searchable, sortable and paired with relevant metadata? and thus was compliant with the parties? ESI agreement and with Rule 34

Nature of Case: Wrongful discharge; Age Discrimination; Dodd Frank; Sarbanes-Oxley

Electronic Data Involved: ESI

Pinkney v. Winn-Dixie Stores, Inc., No. CV214-075, 2015 WL 171236 (S.D. Ga Jan. 13, 2015)

Dec 01 2015

Key Insight: Plaintiff moved for spoliation sanctions after Defendant stated in deposition they took accident scene photographs, but did not provide the photographs and stated all accident photographs had been provided. Plaintiff claimed Defendant?s sole possession was circumstantial evidence Defendant acted affirmatively in destroying the photographs. However, Court would not infer bad faith because it was possible ?the photographs were lost or destroyed haphazardly,? and concluded circumstantial evidence cannot prove bad faith ?without any evidence that the loss or destruction of the photographs was, or could only be, due to a deliberate, intentional act of Defendant or its agent.?

Nature of Case: Personal Injury

Electronic Data Involved: Photographs of slip and fall scene

Case Citation: Nucci v. Target Corp., 162 So.3d 146 (Fla. Dist. Ct. App. 2015).

Dec 01 2015

Key Insight: Circuit Court denied petition for certiorari relief to quash Trial Court order compelling discovery of photographs from Plaintiff?s Facebook account, finding no departure from the essential requirements of law, because the photographs were ?powerfully relevant to the damage issues in the lawsuit,? Plaintiff?s privacy interest in them were minimal because ?photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established,? and the Stored Communications Act ?does not apply to individuals who the use the communications services provided.?

Nature of Case: Personal Injury

Electronic Data Involved: Facebook/social media photographs

Fid. Nat?l Title Ins. Co. v. Captiva Lake Invs., L.L.C., No. 4:10?CV?1890 (CEJ), 2015 WL 94560 (E.D. Mo. Jan. 7, 2015)

Dec 01 2015

Key Insight: Where inspection by court-appointed specialist revealed that plaintiff deleted emails, failed to institute a litigation hold, and delayed completing a comprehensive search of its electronic files, events which defendant and the court would not have known about but for the inspection, the court said plaintiff was subject to sanctions for failing to secure relevant emails and for prejudicial delay in production of discoverable material and that the court would instruct jurors that they may, but are not required to, assume the contents of deleted emails would have been adverse to the plaintiff, but the court would also allow for plaintiff to put on rebuttal evidence showing ?an innocent explanation of its conduct.? Additionally, the court ordered plaintiff to pay one-half of the reasonable costs of the inspection and to pay defendant?s reasonable attorneys? fees associated with bringing the sanctions motion.

Nature of Case: Insurance Coverage Dispute

Electronic Data Involved: ESI, database contents

Author - eDiscovery Import