Case Summaries – Page 124 – Electronic Discovery Law

State v. Francis, 455 S.W.3d 56 (Mo. Ct. App. 2014)

Dec 01 2014

Key Insight: Court reversed conviction and remanded for new trial based on error in admission of text messages found on Blackberry in Defendant?s possession at the time of his arrest where the State argued that ownership of the Blackberry could be inferred and failed to establish that at-issue text messages were authored by the defendant, which in turn, negated the state?s arguments for admitting the outgoing text messages as well: ?There was no evidence that Appellant owned the BlackBerry or, more importantly, authored the messages. The fact that Appellant possessed the phone at the time of arrest is insufficient by itself to establish that Appellant authored text messages sent hours or days earlier. Because the State failed to establish that the text messages were authored by Appellant, the outgoing messages were not admissible as admissions by a party opponent and, thus, the incoming messages were not admissible under any identified exception to the hearsay rule.?

Nature of Case: Drug conviction

Electronic Data Involved: Text messages from Blackberry

Del Gallo v. City of New York, 997 N.Y.S.2d 98 (Table) (N.Y. Sup. Ct.2014)

Dec 01 2014

Key Insight: Addressing request for discovery of Plaintiff?s social media contents, specifically LinkedIn, court indicated that ?[t]o warrant such discovery, ?defendants must establish a factual predicate for their request by identifying relevant information in plaintiff?s [social media] account — that is, information that contradicts or conflicts with plaintiff?s alleged restrictions, disabilities, and losses, and other claims?? and, although it acknowledged that Defendants could obtain information pertinent to Plaintiff?s communications with recruiters related to job offers and related inquiries, indicated that Defendants had not shown that they were entitled to Plaintiff?s communications with former colleagues about her condition or to the other materials on LinkedIn

Nature of Case: Wrongful death and personal injuries resulting from falling tree limb

Electronic Data Involved: Social Media Contents (e.g., LinkedIn)

Robinson v. County of San Joaquin, No. 2:12-cv-2783 MCE GGH PS, 2014 WL 3845775 (E.D. Cal. July 31, 2014)

Dec 01 2014

Key Insight: A clearly exasperated court described the parties’ discovery efforts to date, highlighted the inconsistencies/incompleteness in response, “as well as the complete cacophony of the San Joaquin County e-mail systems and retrieval,” and issued one final, specific order to be followed by defendant lest serious sanctions issue; among other things, court ordered defendant to perform computer-by-computer search for all current employees in order that any emails relating to plaintiff’s discrimination claims or job performance from 2007 to present may be produced, acknowledging that substantial work would be required for compliance but that judge was “not responsible for the County’s email systems which apparently have been designed for individual control and with no concern for litigation responsibilities”

Sexton v. Lecavalier, 11 F. Supp. 3d 439 (S.D.N.Y. Apr. 11, 2014)

Dec 01 2014

Key Insight: Court declined to hold third party in contempt where failure to produce Gmail in native format was result of good faith (but mistaken) belief that Gmail emails cannot be produced in native format; opinion noted options for production of Gmail emails in native format

Electronic Data Involved: Gmail emails

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

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

In re Actos (Pioglitazone) Products Liability Litig., MDL No. 6:11-md-2299

Dec 01 2014

Key Insight: Parties reached agreement regarding the use of predictive coding for the production of electronically stored information (order dated july 27, 2012)

Nature of Case: Products Liability

Electronic Data Involved: ESI

Ingrid & Isabel, LLC v. Baby Be Mine, LLC, No. 13-cv-01806, 2014 WL 1338480 (N.D. Cal. Apr. 1, 2014)

Dec 01 2014

Key Insight: Court denied issue preclusion sanctions without prejudice, ordering defendants to pay monetary sanctions of $20,444, produce all hard drives and any other electronic storage media subject to court-approved protocol for inspection, and provide plaintiff’s experts with access to defendants’ various e-mail, Amazon, Twitter, Facebook and eBay accounts, in light of serious concern as to whether defendants met their discovery obligations and real danger that evidence may be destroyed

Nature of Case: Breach of settlement agreement resolving trademark infringement and unfair competition claims

Electronic Data Involved: Defendants’ hard drives and various e-mail, Amazon, Twitter, Facebook and eBay accounts

Illiana Surgery and Med. Care Ctr. LLC v. Hartford Fire Ins. Co., NO. 2:07 cv 3, 2014 WL 1094455 (N.D. Ind. Mar. 19, 2014)

Dec 01 2014

Key Insight: Following evaluation of the relevant eight part test, court declined to shift the costs of producing emails stored on Defendant?s backup system pursuant to Rule 26(b)(2)(B) (inaccessible data) but placed limitations on the discovery allowed and ordered Defendant to restore eight weeks of backup tapes at its own expense and to search them for the requested emails and invited Plaintiff to renew its motion if, after Defendant?s search was complete, it could show that ?further exploration? was necessary

Nature of Case: Insurance Litigation

Electronic Data Involved: Emails stored on backup tapes

Catagory:Case Summaries