eDiscovery Import – Page 7 – Electronic Discovery Law

Terral v. Ducote, No. 15-2366, 2016 WL 5017328 (W.D. La. Sept. 19, 2016)

Dec 01 2016

Key Insight: Where pro se prisoner sought production of video footage of the alleged use of excessive force but failed to request the video or file a grievance for 30 days and the tape was recorded over, the court found that Plaintiff had failed to demonstrate that Defendant had not taken reasonable steps to preserve the footage or that Defendant acted with the intent to deprive and denied the motion for sanctions

Nature of Case: Pro se prisoner defendant, excessive force

Electronic Data Involved: Video footage

Moll v Telesector Res. Grp., Inc., No. 04-CV-0805S(Sr), 2016 WL 6095792 (W.D.N.Y. Oct. 19, 2016)

Dec 01 2016

Key Insight: Addressing Plaintiffs? objection to a request for, essentially, all of Plaintiff?s Facebook content, the court cited Giacchetto v. Patchogue-Medford Union Free School Dist., No. 293 F.R.D. 112 (E.D.N.Y. 2013) for the proposition that ?routine status updates and/or communications on social networking websites are not, as a general matter, relevant to [plaintiff?s] claim for emotional distress damages, nor are such communications likely to lead to the discovery of admissible evidence regarding the same,? but further reasoned that ?post specifically referencing? Plaintiff?s emotional distress or at-issue treatment were discoverable and should be produced

Nature of Case: Motion to compel in case alleging discrimination, harassment, hostile environment, retaliation and unequal pay in violation of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law and the Equal Pay Act

Electronic Data Involved: Social media/social network (Facebook)

Bagley v. Yale Univ., No. 3:13-CV-1890 (CSH), 2016 WL 7407707 (D. Conn. Dec. 22, 2016)

Dec 01 2016

Key Insight: Court granted Plaintiff?s motion to compel production of litigation hold notices and related responses to a survey regarding recipients? computer use where, despite the absence of specific evidence of spoliation or a pending spoliation motion, the delayed (9-11 months) and rolling issuance of litigation holds was described by the court as ?leisurely, to an extent making it impossible to dismiss as frivolous [Plaintiff?s] suggestion that she might move for a spoliation sanction? and where the court reasoned that Plaintiff was ?entitled to discovery in these areas, in order to discern the merit or lack of merit of a formal claim for spoliation claim? [sic]; regarding assertions that the hold notices were privileged, the court reasoned that ?the predominant purpose of the communication was to give recipients forceful instructions about what they must do, rather than advice about what they might do?; court?s analysis included identification of six ?decisive questions? relevant to ?spoliation cases involving litigation hold notices? including, when the duty to preserve arose, whether litigation holds were issued, when they were issued, what they said, how recipients responded and what further action was taken beyond the litigation holds to preserve evidence

Nature of Case: Employment discrimination

Electronic Data Involved: Litigation Hold notices and survey to recipients regarding computer use

Thurmond v Bowman, No. 14-CV-6465W, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016)

Dec 01 2016

Key Insight: Where Defendants sought spoliation sanctions for Plaintiff?s alleged deletion of social media postings that Defense counsel claimed had disappeared from the relevant account, the evidence indicated that the majority of those posts were merely hidden as the result of Plaintiff?s modification of her security settings and the court noted that the three posts that were missing ?did not seem relevant? and concluded that spoliation sanctions were not warranted; court?s analysis included disagreement with the argument that ?the entirety of a plaintiff?s social media account is per se relevant to any claim for emotional distress damages,? and concluded that the contention that sanctions were warranted for the deletion of any Facebook post swept ?far too broadly?

Nature of Case: Housing discrimination

Electronic Data Involved: facebook (social media / social network)

In re Disposable Contact Lens AntiTrust Litig., No. 3:15-md-2626-J-20JRK, 2016 WL 6518660 (M.D. Fla. Nov. 1, 2016)

Dec 01 2016

Key Insight: Where the ?potential relevance? of the information sought was ?essentially undisputed,? but where Defendant claimed to have already spent $700,000 on discovery and that the request for 18 additional custodians could result in an expenditure of at least $1.5 million, court noted that the parties? dispute was essentially a question of proportionality and concluded a that two additional ?upper-management custodians? were warranted (as opposed to the seven requested) and also found that a sample of four sales manages was appropriate (as opposed to the eleven requested); as to Class Plaintiffs? request for a ?hit list? generated by applying the agreed-upon search terms to the collected materials, the court reasoned that in light of the number of custodians and the parties? agreement as to search terms, such a list seemed ?less valuable that it might otherwise be,? but ordered that if one was automatically generated, it should be produced

Nature of Case: Class Action

Electronic Data Involved: Additional Custodians

Virtual Studios, Inc. v. Stanton Carpet, Corp., No. 4:15-CV-0070, 2016 WL 5339601 (N.D. Ga. June 23, 2016)

Dec 01 2016

Key Insight: Where the court acknowledged that after a duty to preserve arose in 2009 Plaintiff ?did little, if anything, to prevent the loss of emails,? including failing to instruct employees to retain relevant documents and emails and failing to backup emails stored on employees individual hard drives, but where Defendant failed to establish bad faith or an intent to deprive, the court declined to impose an adverse inference or other serious sanctions pursuant to Rule 37(e)(2) but, upon finding that the loss of emails was prejudicial to Defendant (where the parties offered competing narratives regarding whether Defendant was informed regarding Plaintiff?s limitations on the use of its images), ordered that the defendant ?may introduce evidence concerning the loss of the e-mails and may make an argument to the jury concerning the effect of the loss of the e-mails?

Nature of Case: Copyright infringement

Electronic Data Involved: Emails

Duhigg v. Goodwill Indus., No. 8:15CV91, 2016 WL 4991480 (D. Neb. Sept. 16, 2016)

Dec 01 2016

Key Insight: Court denied Plaintiff?s motion to compel the production of emails containing Plaintiff?s name as a search hit and granted in part Defendant?s motion for a protective order where Defendant established that the emails were not reasonably accessible in light of the time and minimum costs of production, estimated at $45,825, and where the court also found they were not proportional to the needs of the case; although the court found Plaintiff?s proposed terms overbroad (her name) the court disagreed with Defendant?s time limitation on its own search for emails where prior discriminatory acts, even if not actionable, could be used as background evidence and ordered the parties to meet and confer regarding appropriate search terms to be used to search the accounts of 3 custodians over a 4 year period

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Flowrider Surf, Ltd. v. Pacific Surf Designs, Inc., No. 15cv1879-BEN (BLM), 2016 WL 6522807 (S.D. Cal. Nov. 3, 2016)

Dec 01 2016

Key Insight: The parties in this case agreed to produce ESI ?in accordance with the Southern District?s Order Governing Discovery of Electronically Stored Information.? Defendant sought production of all documents that ??hit? on the parties? agreed-upon search terms without further relevance review,? arguing that the terms were narrowly tailored and that any resulting hits were ?presumptively relevant and responsive.? Plaintiffs argued that Defendant?s interpretation of the order was contrary to law and conflicted with the language of Fed. R. Civ. P. 26(b)(1), among other things. Citing a declaration from Plaintiff?s CEO that the search hits, which for some terms numbered in the thousands or tens of thousands, contained a substantial number of irrelevant documents, the court agreed that ?culling for relevance [was] warranted.?

Nature of Case: Patent Infringement

Electronic Data Involved: ESI (search hits)

Orologio of Short Hills Inc. v Swatch Grp. (U.S.) Inc., 653 Fed. Appx. 134 (3rd Cir. 2016)

Dec 01 2016

Key Insight: Court affirmed District Court?s denial of Plaintiff?s motion to strike Defendant?s answer and issue sanctions on alleged spoliation, absent a finding that the hard-copy tapes at issue were destroyed in bad faith. The evidence in the record indicated the tapes were destroyed for the sole reason that the Defendant did not wish to pay a storage fee for the tapes; there was no reference to the litigation in the emails regarding the destruction.

Nature of Case: Alleged violations of Robinson Patman Act and NJ Franchise Practices Act

Electronic Data Involved: Hard-copy tapes containing “tagged television commercials”

Westmoreland v. Wells Fargo Bank Nw., N.A., No. 1:15-cv-00312-CWD, 2016 WL 6471433 (D. Idaho Oct. 31, 2016)

Dec 01 2016

Key Insight: Defendant sought to compel the return of Plaintiff?s company-issued laptop in order to obtain its contents; production of all emails sent by Plaintiff?s counsel to a joint email account shared by Plaintiff and her husband; as well as an additional search of Plaintiff?s Facebook account. Because it became clear that neither party had accessed the laptop during the litigation but that both parties were interested in its contents, the Court ordered that imaging and retrieval would be conducted by an agreed upon third party but, recognizing Defendant?s security concerns, allowed a representative to be present for the process. The Court denied Defendant?s motion to compel production of emails that Plaintiff?s counsel sent to a joint email account accessible by both Plaintiff and her husband, indicating that Defendant had not shown that Plaintiff waived attorney-client privilege regarding the communications with her counsel by having the emails sent to a shared email account and citing marital privilege. The Court denied the motion requesting a third search of Plaintiff?s Facebook messages, indicating that the messages produced to date were satisfactory and that the time and cost of an additional search was not ?proportional to the needs of this litigation.?

Nature of Case: Employment discrimination

Electronic Data Involved: Company-issued laptop, emails, social media (social network)

Author - eDiscovery Import