eDiscovery Import – Page 55 – Electronic Discovery Law

SCR-Tech LLC v. Evonik Energy Servs. LLC, No. 08 CVS 16632 (N.C. Super Ct. Dec. 31, 2014)

Dec 01 2014

Key Insight: Where Plaintiff failed to ensure the preservation of information underlying a highly relevant report regarding the examination of certain Defendants? computers over which the court determined it had ?de facto control? (the underlying information, including copies of the images were in the possession of the third party investigator), the court indicated it was not necessary to make an express finding regarding when litigation was contemplated and reasoned that based on the circumstances, Defendants were ?entitled to the inference? that the information was negligently lost during a time when Plaintiff had the duty to preserve it. Thus, the court found Defendants had presented sufficient evidence of spoliation to trigger Plaintiff?s obligation to rebut it and that Plaintiff had not. As a sanction, the court ordered a permissive adverse inference. Regarding Plaintiff?s request to compel Defendant?s restoration of backup tapes, the court identified the state?s relevant three-part test and ordered that if Plaintiff wanted restoration, it would be required to pay half o f the estimated costs up front, with further allocation to occur following analysis of the results of the search.

Electronic Data Involved: ESI, backup tapes

Lee v. Chicago Youth Ctrs., 69 F. Supp. 3d 885 (N.D. Ill. 2014)

Dec 01 2014

Key Insight: Reasoning that ?[h]aving contented themselves to file a response to the motion to compel that was conclusory and factually and legally unsupported, the defendants must live with the consequences of that decision,? the court found privilege was waived as to two allegedly inadvertently produced emails; court?s analysis also criticized Defendants? attempts to rectify the inadvertent production where, upon being notified of possible inadvertent production, they relied upon their vendor?the same vendor responsible for the inadvertent production in the first place?to search for privileged information which the vendor subsequently missed and also criticized defense counsels? failure to undertake a review of the information themselves: ?There is a good deal of merit to the plaintiff?s contention that defendants? four lawyers, who are members of a firm whose ?website boasts a roster of ?nearly 800 attorneys,? having ?delegated document review to an unidentified outside vendor (particularly after having been specifically advised of a potential problem with the production)? simply cannot be heard to argue that they took ?the kind of prompt reasonable steps to rectify any error in production which should allow them now to assert inadvertence and avoid a finding of waiver.??

Electronic Data Involved: Emails

State Farm Mut. Auto. Ins. Co. v. Physiomatrix, Inc., No. 12-cv-11500, 2015 WL 1029540 (E.D. Mich. Mar. 3, 2014)

Dec 01 2014

Key Insight: Court found an individual defendant had control over deleted emails in an account located on a Comcast server and that the deletion of the emails was not ?merely coincidental to the winding-down of the business operations? of Defendant but rather was intentional, ?to prevent the discovery of the evidence therein?; reasoning that Plaintiff was not prevent from proving its most crucial allegations, the court declined to impose ?case-terminating? sanctions, but did order monetary sanctions against the individual defendant who controlled the emails and that Defendants? would bear the cost of a forensic search of their computers; notably, the inspection would apply to all defendants? computers, despite the court?s finding that one individual defendant had no control over the deleted emails and could not be held responsible for the deletion where the court explained (in footnote) that the non-spoliating defendant?s email account (used by his clinic) was registered to the spoliating defendant and where the non-spoliating defendant testified that he had not conducted a proper search of his computers

Electronic Data Involved: Emails on third party (Cloud) server

Innovation Ventures, LLC v. N2G Distrib., Inc., No. SA CV 12-00717-AB (Ex), 2014 WL 10384643 (C.D. Cal. Dec. 10, 2014)

Dec 01 2014

Key Insight: Court denied recovery of the cost of ?storage of produced documents in [an] electronic discovery database? where Plaintiff failed to establish that the database was necessary and not merely beneficial or convenient

Electronic Data Involved: Taxable costs

Harrington Enters., Inc. v. Safety-Kleen Sys., Inc., No. 13-00167-CV-W-BP, 2014 WL 12611318 (W.D. Mo. July 11, 2014)

Dec 01 2014

Key Insight: Court denied motion to compel searches of current and proposed custodians using additional search terms where Plaintiff failed to establish the relevance of the terms or the likelihood they would lead to admissible evidence and where Defendant had already provided discovery regarding the alleged issue, thus rendering the discovery cumulative and duplicative; court also denied motion to add custodians where Plaintiff again failed to establish relevance and where Defendant had shown that the ESI for the requested custodians was not reasonably accessible because it would require restoration of disaster backup tapes and ?substantial time, effort, and cost? to search

Electronic Data Involved: ESI (additional search terms, custodians)

Stewart v. Nucor Corp., No. 3:13-cv-0057-KGB, 2014 WL 12611316 (E.D. Ark. Dec. 8, 2014)

Dec 01 2014

Key Insight: Defendant moved to strike Plaintiffs answer, enter default judgement and give an adverse inference jury instruction as sanctions for alleged spoliation of video footage. The court held that destruction of the footage was prejudicial to Plaintiff, being the only recording of the accident. Defendant did not have an official retention policy and indicated the video at issue was overwritten ?within weeks of the accident through routine system operation.? However the court did not find Defendant acted in bad faith, and thus denied with prejudice Plaintiff?s motion to strike Defendant?s answer and enter default judgement. The court denied without prejudice Plaintiff?s request to strike the affirmative defense asserting Plaintiff?s fault as well as the request to prohibit Defendant from mentioning the tape/contents/employee statements regarding the tape during trial. Plaintiff may file a motion in limine to further pursue exclusion of evidence.

Electronic Data Involved: Video footage

Virco Mfg. Corp. v. Hertz Furniture Sys., No. CV 13-2205 JAK(JCx), 2014 WL 12591482 (C.D. Cal. Fan. 21, 2014)

Dec 01 2014

Key Insight: The court granted Defendant?s motion to compel production of email attachments, noting that ?by failing to produce email attachments, plaintiff has effectively redacted, based upon relevance, portions of documents it otherwise apparently views to be discoverable/relevant/responsive to defendants? discovery requests.? The court further noted that Plaintiff ?offered no evidence that it would suffer any undue burden from producing such electronic data.?

Electronic Data Involved: Email

Thompson v. Am. Family Mut. Ins. Co., No. 2:09-CV-905 JCM (NJK), 2013 WL 164245 (D. Nev. Jan. 15, 2013)

Dec 01 2013

Key Insight: District court adopted in its entirety the recommendation of the magistrate judge that Plaintiff?s amended complaint be dismissed and that her answer to defendants? counterclaims be stricken as a sanction for willful and bad faith spoliation where Plaintiff gave her relevant computers to her brother who then took them to Indonesia where he lived and where this spoliation resulted in severe prejudice to defendants; the opinion also upheld a prior order of the magistrate imposing sanctions in the form of findings detrimental to the plaintiff for ?ongoing and repetitive violations of discovery obligations?; as to both the recommendation adopted and the order upheld, the court granted defendant?s request for attorneys fees

Nature of Case: Alleged violation of restrictive covenant with prior employer

Electronic Data Involved: Two computers

Christou v. Beatport LLC, No. 10-cv-02912-RBJ-KMT, 2013 WL 248058 (D. Colo. Jan. 23, 2013)

Dec 01 2013

Key Insight: Where a defendant negligently ?lost? his cellular phone and thus the text messages on it despite a duty to preserve, the court ordered that plaintiffs would be permitted to introduce evidence at trial of defendants? failure to preserve and to argue whatever inference they hoped the jury would draw, but defendants would be allowed to present an explanation and argue that no adverse inference should be drawn

Nature of Case: Antitrust and related claims; theft of trade secrets; intentional interference with a prospective business

Electronic Data Involved: Text messages

Keller v. Nat?l Farmers Union Prop. & Cas. Co., No. CV 12-72-m-DLC-JCL, 2013 WL 27731 (D. Mont. Jan. 2, 2013)

Dec 01 2013

Key Insight: Court denied defendant?s motion to compel plaintiffs? production of printouts of all social media content where the court recognized that discovery of social network content has been allowed by other courts upon a showing that publically available information on those sites undermines the plaintiff?s claims and where no such showing was made in the present case

Nature of Case: Breach of insurance contract

Electronic Data Involved: Social Network Information: Facebook, MySpace, Twitter, etc.

Author - eDiscovery Import