Case Summaries – Page 117 – Electronic Discovery Law

East Bridge Lofts Prop. Assoc., Inc. v. Crum & Forster Specialty Ins. Co., No. 2:14-cv-2567-RMC, 2015 WL 12831731 (D.S.C. June 18, 2015)

Dec 01 2015

Key Insight: Where Plaintiff sought forensic examination of email accounts not searched by Defendants, the court acknowledged the ?expense and difficulty? of such examinations and reasoned that ?mere skepticism? that relevant information has not been produced is insufficient to warrant such drastic measures and thus denied the request; court reasoned Defendant had failed to reveal the search terms utilized to identify responsive documents in searches of three other email accounts and that Plaintiffs had established the relevancy of all of the requested accounts and ordered the parties to meet and confer as to an appropriate search methodology for all accounts

Nature of Case: Insurance litigation: bad faith

Electronic Data Involved: Forensic examination of email accounts

Horse v. BNSF R.R. Co., —P.3d—, 2015 WL 3444432 (Mont. May 29, 2015)

Dec 01 2015

Key Insight: On appeal, Supreme Court found that lower court?s failure to order default judgment for Defendant?s spoliation of potentially relevant surveillance video despite a request for preservation and the sophistication and experience to understand the need to preserve was not an abuse of discretion but did find that the failure to award a meaningful sanction was an abuse of discretion where the instruction that Defendant would not be allowed to discuss the surveillance video?which it claimed showed no evidence of the at-issue accident?unless Plaintiff brought it up put the Plaintiff in a bind such that if he brought up the destruction of the video, Defendant could argue it contained nothing, and thus take advantage of the video?s unavailability to rebut their claim; the case was remanded for a new trial

Nature of Case: Work-related injury

Electronic Data Involved: Surveillance video

Arkansas River Power Auth. v. Babcock & Wilcox Power Generation Grp., Inc., No. 14-cv-00368-CMA-NYW, 2015 WL 2128312 (D. Colo. May 5, 2015)

Dec 01 2015

Key Insight: Addressing several disputes, court concluded that parties having agreed on an ESI production ?must only comply with Rule 34(b)(2)(E)(ii)? and that the question was therefore whether the defendant ?produced its ESI in the form in which it is ordinarily maintained or in a reasonably usable form or forms. The rule clearly requires one or the other, but not both.?; where defendant produced majority of its documents in a reasonably usable form (TIFF), court declined to compel production of additional metadata

Nature of Case: Breach of contract and related claims

Electronic Data Involved: ESI

Tyler v. City of San Diego, No. 14-cv-01179-GPC-JLB, 2015 WL 1955049 (S.D. Cal. Apr. 29, 2015)

Dec 01 2015

Key Insight: Court granted Plaintiffs? Motion to Compel documents where Defendant rejected Plaintiffs? proposed search terms and protocols, but did not use search terms and protocols it deemed reasonable to produce those documents that were readily accessible and admittedly relevant. Court also refused to limit the locations Defendant was required to search for relevant documents saying, ?The City is not excused from conducting a reasonable search for all non-privileged responsive documents in City?s custody and control, regardless of location.?

Nature of Case: Sexual Harassment

Electronic Data Involved: Database

SFP Works LLC v. Buffalo Armory LLC, No. 14-13575, 2015 WL 7294580 (E.D. Mich. Nov. 19, 2015)

Dec 01 2015

Key Insight: Where Plaintiff alleged it could not access the data produced by defendant?even with the use of specialized software provided by Defendant and the assistance of a third party vendor?and refused the options provided by defendant insisting instead that defendant must re-load the date to ensure it was not corrupted, the court noted Plaintiff?s failure to timely seek a solution to the discovery problems or to mitigate the difficulties by pursuing any of the offered remedial measures and denied the motion to compel access to the at-issue information

Nature of Case: Patent infringement

Electronic Data Involved: ESI (“operational data”)

Thermoset Corp. v. Building Materials Corp. of Am., No. 14-60268-CIV, 2015 WL 156310 (S.D. Fla. Apr. 8, 2015)

Dec 01 2015

Key Insight: Applying the elements of Fed. R. Evid. 502(b), court concluded that whether production was ?inadvertent? should be determined by asking whether the party intended to produce the document or whether it was a mistake rather than looking at court-identified factors to determine whether the ??inadvertent? element? was satisfied and found: 1) that the at-issue emails were produced by mistake, and thus inadvertently, 2) that reasonable steps to prevent the disclosure were taken where counsel identified the documents as privileged after personally inspecting them but where they were nonetheless produced inadvertently among the other 1,000 pages produced in response to the relevant request, and 3) that prompt steps were taken to prevent the error where counsel informed opposing counsel of the inadvertent production on the same day he discovered it; thus, the inadvertent production did not result in waiver

Nature of Case: Claims arising from defective roofing adhesive

Electronic Data Involved: Emails

Bruno v. Bozzuto?s, Inc., No. 3:09-CV-00874, 2015 WL 5098952 (M.D. Pa. Aug. 31, 2015)

Dec 01 2015

Key Insight: On motion for reconsideration of three discovery orders, the court found no error in the lower court?s determination that Plaintiff?s admitted contemplation of litigation was sufficient to trigger her obligation to preserve, noting the lower court?s reliance on case law that ?the knowledge of a potential ? claim is deemed sufficient to impose a duty to preserve evidence?; court indicated that evidence contradicting Plaintiff?s claim that a third party still maintained the at-issue records was sufficient to allow the court to revisit the issue and to find that plaintiff acted in bad faith and also noted that in the Third Circuit, bad faith was not required to impose an adverse inference; addressing prejudice, court dismissed the proposition that Defendant?s access to at-issue evidence years earlier was sufficient to undercut any prejudice, noting that Defendant?s experts had not had access to the evidence; court found no clear error in the imposition of monetary sanctions for spoliation of evidence prior to trial

Electronic Data Involved: ESI

Osborne v. Billings Clinic, No. CV 14-126-BLG-SPW, 2015 WL 1412626 (D. Mont. Mar. 26, 2015)

Dec 01 2015

Key Insight: Where requesting party failed to request a specific format of production and the responding party therefore produced in PDFs, the court reasoned that Defendant failed to assert that it could not produce the information as it was originally kept and that Plaintiff should not be at a ?disadvantage by having to slog through thousands of pages of records in unusable form? and granted Plaintiff?s motion to compel production of the at-issue medical records in the manner in which they were maintained

Electronic Data Involved: Electronically stored medical records

Caputi v. Topper Realty Corp., No. 14-cv-2634(JFB)(SIL), 2015 WL 893663 (E.D.N.Y. Feb. 25, 2015)

Dec 01 2015

Key Insight: Court granted in part defendants? motion to compel Plaintiff?s cell phone records for the purpose of determining her activities during work hours and ordered the production of a sampling of such records from a two year period with an invitation for defendants to renew their application if the sampling provided probative evidence; court denied defendants? motion to compel social media content for the purpose of proving that Plaintiff was engaged in non-work related activities while she claimed to be working where defendants offered little more than their hope that they would find something of relevance but ordered production of a sampling of content from Plaintiff?s Facebook account for the purpose of determining her emotional state, limited to the production of content referencing claimed emotional distress and any related treatment and any alternative sources for the alleged distress

Nature of Case: Employment litigation (FLSA, NYLL)

Electronic Data Involved: Cell phone records, Social media (Facebook)

Malibu Media, LLC v. Harrison, No. 1:12-CV-117-WTL-MJD, 2015 WL 3545250 (S.D. Ind. June 8, 2015)

Dec 01 2015

Key Insight: Where magistrate judge found that defendant violated his duty to preserve when he discarded his laptop after it allegedly crashed but declined to impose default judgement or an adverse inference absent evidence of bad faith, the district court upheld the decision not to impose default judgment but, reasoning that the credibility of defendant?s explanation was best left to the jury, held that the jury would be instructed that if it found bad faith, it could infer the computer?s contents were unfavorable

Nature of Case: Copyright infringement

Electronic Data Involved: Contents of hard drive

Catagory:Case Summaries