eDiscovery Import – Page 6 – Electronic Discovery Law

Realpage, Inc., v. Enter. Risk Control, LLC, No. 4:16-CV-00737, 2017 WL 1180420 (E.D. Tex. Mar. 30, 2017)

Dec 01 2017

Key Insight: The Court granted Plaintiffs? Motion to Compel Production of Defendants? computer images. Defendants made their source code available to Plaintiffs who then identified comments made prior to the produced source code date. Defendants insisted the pre-July 2013 source code was destroyed when Plaintiffs? former employee became a full-time employee of Defendants. The Court found that Defendants provided a sufficient explanation of good faith destruction of pre-July 2013 code but that limited forensic imaging could recover important deleted materials. The Court held that a tailored examination by a third-party forensic expert of Defendants? computers is appropriate to determine whether the pre-July code is recoverable or to assist in cross-examination as to its destruction.

Electronic Data Involved: Mirror image

TLS Mgmt. & Mktg. Servs. LLC v Rodriguez-Toledo, No. 15-2121 (BJM), 2017 WL 1155743 (D.P.R. Mar. 27, 2017)

Dec 01 2017

Key Insight: For an individual defendant?s admitted disposal of his laptop and deletion of the contents of his external drive after transferring the contents to a thumb drive despite Plaintiff?s request to preserve and pending litigation, the court reasoned that Plaintiff ?plausibly suggests? that the laptop and hard drive ?might have? contained relevant ESI based on Defendant?s admitted accessing and copying of confidential files and imposed sanctions, including an adverse inference and an order for Defendants to permit and pay for examination of the at-issue external drive, but the court declined to impose sanctions for the individual defendant?s loss of his cellphone ?based on the current state of the evidentiary record? where Plaintiff failed to proffer evidence sufficient to suggest that the loss was not inadvertent or to clarify the approximate time of the loss

Electronic Data Involved: Laptop, ESI, cellular phone

Storey v. Effingham Cnty., No. CV 415-149, 2017 WL 2623775 (S.D. Ga. June 16, 2017)

Dec 01 2017

Key Insight: For Defendants? negligent (or even reckless) failure to preserve relevant video footage following Plaintiff?s release from jail despite the ?distinct possibility? of litigation in light of the injuries Plaintiff suffered while in custody and his specific threats to sue, the court imposed sanctions to redress the prejudice to Plaintiff and ordered that the court would tell the jury that the video was not preserved and that the parties could present evidence and argument regarding that failure for the jury?s consideration

Electronic Data Involved: Surveillance footage from jail

IDC Fin. Pub., Inc. v. Bonddesk Grp., LLC, No. 15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)

Dec 01 2017

Key Insight: In this case, the court granted Plaintiff?s motion to compel production of over 600 documents previously produced with extensive non-responsive redactions applied. Defendants argued that the redactions were necessary to protect confidential business information that was not relevant to the underlying dispute and cited In re Takata Airbag Prods. Liab. Litig., 14-24009-CV-MORENO, 2016 WL 1460143 (S.D. Fla. Feb. 24, 2016), in support of their position. In Takata, the court allowed certain non-responsive redactions ?because of its concern that the documents contained competitively sensitive materials that may have been exposed to the public, despite protective orders.? In the present case, the court cited Burris v. Versa Prods., Inc., No. 07-3938 (JRT/JJK), 2013 WL 608742 (D. Minn. Feb. 19, 2013) for the propositions that non-responsive redactions are not explicitly supported by the federal rules and that allowing such redactions has the potential for abuse, where parties would be incentivized to ?hide as much as they dare.? The court further reasoned that Defendants did not assert any privilege or provide a ?compelling reason? for their ?extensive? redactions and that they failed to explain why the existing protective order did not provide adequate protection. Thus, the court concluded that it ?[did] not see a compelling reason to alter the traditionally broad discovery allowed by the rules by letting the defendants unilaterally redact large portions of their responsive documents on relevance grounds? and granted Plaintiff?s motion to compel

Electronic Data Involved: ESI

Hausman v. Holland Am. Line-U.S.A., No. CV13-0937 BJR, 2015 WL 51273 (W.D. Wash. Jan. 5, 2016)

Dec 01 2016

Key Insight: Judgment vacated and new trial ordered for deliberate spoliation of relevant emails revealed by credible witness after original trial

Nature of Case: Personal injury

Electronic Data Involved: Emails

Stinson v. City of New York, No. 10 Civ. 4228(RWS), 2016 WL 54684 (S.D.N.Y. Jan. 5, 2016)

Dec 01 2016

Key Insight: Court found Defendants? discovery failures, including failing to implement a litigation hold for three years, failing to adequately communicate the hold, and failure to ensure compliance with the litigation hold were grossly negligent and imposed a permissive adverse inference as a sanction; court?s analysis included the admonition that ?the reasonableness or unreasonableness of one party?s demands does not determine the scope of the other party?s obligation to preserve documents?

Nature of Case: Class action civil rights

Electronic Data Involved: ESI: email, text messages, har copy

McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., No. 3:14-cv-2498-B, 2016 WL 98603 (N.D. Tex. Jan. 8, 2016)

Dec 01 2016

Key Insight: In this case, the court addressed Plaintiff?s motion to compel ?the production and organization of certain documents and metadata? and considered the applicability of Fed. R. Civ. P. 34(b)(2)(E)(i) and (ii) to the production of electronically stored information. Ultimately, ?[t]he Court [found] persuasive the analysis that, where Rule 34(b)(2)(E)(i) addresses the organization of a production and Rule 34(b)(2)(E)(ii) specifically addresses the form for producing ESI (where form of production is inherently not an issue with hard-copy documents), and in light of the purposes of the 2006 amendments to Rule 34 and of Rule 34(b)(2)(E)(i)?s requirements, Rules 34(b)(2)(E)(i) and 34(b)(2)(E)(ii) should both apply to ESI productions.?

Nature of Case: Breach of commercial lease agreement

Electronic Data Involved: ESI

Benefield v. MStreet Entm?t, LLC, No. 3:13-cv-1000, 2016 WL 374568 (M.D. Tenn. Feb. 1, 2016)

Dec 01 2016

Key Insight: Where, despite a request from Plaintiff?s counsel to preserve all communications between plaintiff and defendants or their employees AND Defendants? OWN REQUEST that Plaintiff preserve information from her cellular phones, Defendants failed to preserve potentially relevant text messages, the court rejected defendants? arguments that ?due to the nature of text message communications and the cellular devices they are stored on?a requirement to preserve text messages from private cellular phones is unduly burdensome and an invasion of privacy? and found that the messages should have been preserved and indicated that a ?spoliation instruction to the jury? would be given at trial but declined to preclude defendants? reliance on plaintiff?s text messages at trial or to order defendants to pay fees and cost associated with the extraction of plaintiffs? text messages from her own phone

Nature of Case: Employment

Electronic Data Involved: Text messages

Mathur v. Hospitality Props. Trust, No. 13-cv-7206, 2016 WL 520999 (N.D. Ill. Feb. 10, 2016)

Dec 01 2016

Key Insight: Addressing Plaintiff?s claim that defendant?s duty to preserve surveillance footage was triggered by the fact that it knew Defendant was robbed in its hotel, that the police were involved, and that both the police and Defendants ?were using the footage to investigate the incident? (perhaps evidenced by the preservation of different footage at the request of police), the court reasoned that ??mere knowledge of the accident and the possible causes of the accident? is not enough to create a duty to preserve evidence? and found that defendant?s spoliation claim failed

Nature of Case: Claims arising from robbery of hotel guest

Electronic Data Involved: Surveillance footage

Procaps S.A. v. Patheon, Inc., NO. 12-24356-CIV-GOODMAN, 2016 WL 411017 (S.D. Fla. Feb. 2, 2016)

Dec 01 2016

Key Insight: Addressing taxable costs for electronic discovery, the court acknowledged the lack of any ?on-point Eleventh Circuit law? and deemed CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320, 1325 (Fed. Cir. 2013) ?to be the most persuasive circuit court opinion on the issue?; where even CBT Flint Partners LLC did not address costs related to OCR, however, the court indicated it would ?follow the fundamental principle that the costs statute is ?modest? and ?narrow? and ?limited to minor, incidental expenses? and excluded OCR costs from Defendant?s costs request

Nature of Case: Antitrust

Electronic Data Involved: Taxable costs for electronic discovery

Author - eDiscovery Import