Case Summaries – Page 113 – Electronic Discovery Law

Younes v. 7-Eleven, Inc., —F. Supp. 3d—, 2015 WL 8543639 (D.N.J. Dec. 11, 2015)

Dec 01 2015

Key Insight: Finding defendant and counsel in violation of Rule 26(g) for failing to adequately search for discovery (and for their misrepresentations about those efforts), court instructed that ?Rule 26(g) should not be treated like the proverbial stepchild? and that ?Lawyers should not act like ?potted plants? and accept implausible representations from clients . . . .? and also found that sanctions were warranted pursuant to Rule 37(b)(2) for defendant?s violation of the court?s order to produce; accordingly the court imposed sanctions and admonished defendant and counsel for their violation of Rule 26(g) and awarded Plaintiff their fees and costs incurred to obtain the discovery

Nature of Case: Claims arising from alleged plan to terminate franchise agreements

Electronic Data Involved: ESI, hard copy

Cason-Merenda v. VHS of Michigan, Inc., 118 F. Supp. 3d 965 (E.D. Mich. 2015)

Dec 01 2015

Key Insight: Court declined to compel Plaintiffs? production of all discovery produced by any party in the case for Defendant?s use where Defendant failed without adequate explanation to maintain all such documents throughout the pendency of litigation due, perhaps, to changes in ownership and legal representation and where Plaintiffs? compilation of such information was work product, but ordered Plaintiff to produce from its database any specifically identified documents at Defendant?s cost

Electronic Data Involved: Contents of Plaintiffs’ discovery database (i.e., the collection of discovery produced by any party during the litigation)

Unichappel Music, Inc. v. Modrock Prods., LLC, No. 14-2382-DDP (PLA), 2015 WL 12697738 (C.D. Cal. Aug. 28, 2015)

Dec 01 2015

Key Insight: Where responding party asserted that an at-issue request would require production of ?voluminous? irrelevant documents, that identification of the requested documents would require searching through thousands of clients files estimated to take ?one or more persons weeks to accomplish? or would cost between $8740 – $18350 if a vendor was retained to assist – not including attorney review, and that the information was available through alternative means, including depositions, the court concluded that the documents were ?at least minimally relevant? but that the burden of FULL production outweighed the benefit to the requesting party and ordered the responding party to utilize search terms or to hire a vendor to produce a more limited set of documents as prescribed by the court; court declined to shift the costs of the search , reasoning (in footnote) that ?[t]he mere fact that responding to a discovery request will require the objecting party ?to expend considerable time, effort and expense consulting, reviewing and analyzing ?huge volumes of documents and information? is an insufficient basis to object? to a relevant discovery request.?

Electronic Data Involved: ESI

Perez v. Metro Dairy Corp., No. 13 CV 2109(RML), 2015 WL 1535296 (E.D.N.Y. Apr. 6, 2015)

Dec 01 2015

Key Insight: Plaintiffs in this collective action sought spoliation sanctions for Defendants? failure to produce certain relevant evidence, including payroll records, W-2s, cashier sheets, etc. Defendants objected to the motion on the grounds that ?all of their books, records and computers were seized? pursuant to the court?s order in a different case and that there was no time to make any copies or back ups. Accordingly, the court reasoned that Defendants had not destroyed their records and found that ?[u]nder the specific circumstances of this case ? Defendants did not have an obligation to copy their books and records before complying with the court?s order.? Plaintiffs? motion for sanctions was denied.

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: Employment records (payroll, W-2s etc.)

United States v. Shah, No. 5:13-CR-328-FL, 2015 WL 3605077 (E.D.N.C. June 5, 2015)

Dec 01 2015

Key Insight: Court declined to find that contents of email and chats from gmail account could be authenticated as Google?s business records pursuant to ER 902(11) where the contents of the emails were automatically copied to and maintained upon Google?s servers finding that the ?knowledge? requirement was not satisfied and reasoning: ?Neither SHAHNN28@GMAIL.COM, nor any other originating source whose statements appear in the records produced by Google were under a ?business duty? to convey accurate information in their correspondence. Because the proffered ?finished product? is not the collective effort of ?business insiders,? who share a duty to ensure the accuracy of their statements, the court cannot allow those statements to be authenticated on the theory that they are Google?s self-proving business records under Federal Rules of Evidence 803(6) and 902(11).?

Nature of Case: Intentional damage to a protected computer

Electronic Data Involved: Gmail emails and chats

Cognate Bioservices, Inc. v. Smith, No. WDO-13-1797, 2015 WL 5158732 (D. Md. Aug. 31, 2015)

Dec 01 2015

Key Insight: Plaintiff accused Defendant, its former officer (CEO), of accessing and copying proprietary materials and providing them to another corporation; court found Defendant?s failure to preserve notebooks and the contents of a discarded smartphone to be willful (but not in bad faith) and the failure to issue a litigation hold resulting in the loss of ESI to be grossly negligent; relevance was presumed as to the willfully destroyed materials and was established as to the ESI lost as the result of the litigation hold failure but, after reasoning that the prejudice resulting from the loss of the notebooks was ?clear?-based on their contents-the court indicated that prejudice resulting from the loss of the smartphone and other deletions was ?more complicated? where the ESI may still exist (on a preserved laptop), indicating that if they could not be recovered, the destruction would be prejudicial and warrant sanctions; for willful destruction of notebooks, court recommended that the presiding judge consider an adverse inference; for loss of contents of smartphone and other ESI, court indicated the sanctions were the to be decided by presiding judge and would depend on whether the information could be obtained from another source (i.e., the level of prejudice); no spoliation found as to at-issue laptop where defendant returned the laptop to an employee of the corporate owner, but where that employee was notified to preserve the contents and thus it was unclear if any ESI was lost

Nature of Case: Misappropriation of proprietary information

Electronic Data Involved: Hard copy notebooks, emails/smartphone, ESI

In re State Farm Lloyds, 13?14?00616?CV, 2015 WL 6520998 (Tex. App. Oct. 28, 2015)

Dec 01 2015

Key Insight: Court denied petition for writ of mandamus, where real party properly requested native and near-native format of production for ESI, including metadata, under Texas Rules of Civil Procedure 196.4. Court said that relator was not entitled to unilaterally produce ESI in a ?reasonably usable? format and had offered only conclusory testimony that production of ESI in the requested format was unduly burdensome.

Nature of Case: Insurance claim

Electronic Data Involved: ESI

Siriano v. Goodman Mfg. Co., L.P., No. 2:14-cv-1131, 2015 WL 8259548 (S.D. Ohio Dec. 9, 2015)

Dec 01 2015

Key Insight: Applying the proportionality factors in Rule 26(b)(1) (including specific contemplation of Defendants? ?corporate resources? and the ?potentially very large? amount in controversy) and reasoning that the Sixth Circuit has held that ?limiting the scope of discovery is appropriate when compliance ?would prove unduly burdensome,? not merely time-consuming or expensive? and that Defendants failed to propose an alternative method of discovery ?enabling some lesser degree of production,? the court directed the parties to cooperate and indicated it would schedule a conference to discuss ?whether and to what extent discovery should proceed in phases?

Nature of Case: Putative class action re: design or manufacturing defect

Electronic Data Involved: ESI

Good v. Am. Water Works Co., Inc., No. 2:14-1374, 2015 WL 1757978 (S.D. W. Va. Apr. 17, 2015)

Dec 01 2015

Key Insight: Where defendant objected to Plaintiffs? requests for production on grounds of relevance, but nevertheless produced the information in the format in which it was ordinarily maintained (Microsoft SQL Server format) and also provided Plaintiffs with the means to access the data in a ?parallel environment? and then later in an excel format for a limited period of time, indicating that the earlier periods of time were not reasonably accessible, and where Plaintiffs ultimately ?did not disagree? that the information was not as useful as they had thought, the court found the rest of the requested information (from the earlier time periods) was not reasonably accessible and that the burden of production outweighed its likely benefit and denied the motion to compel unless good cause could be shown

Electronic Data Involved: Archived ?SCADA? data from a Microsoft SQL Server format

Moulton v. Bane, No. 14-cv-265-JD, 2015 WL 7776892 (S.D.N.H. Dec. 2, 2015)

Dec 01 2015

Key Insight: Where Defendant unintentionally lost text messages when his service provider failed to transfer those text messages to his new phone?despite his request to transfer ?everything??and where the texts were later recovered by a forensic analysist, court declined to impose ?punitive sanctions? and ordered Defendant to pay the cost of retrieving the messages

Electronic Data Involved: Text messages (WhatsApp)

Catagory:Case Summaries