Case Summaries – Page 124 – Electronic Discovery Law

Cochran v. Caldera Med., Inc., No. 12-5109, 2014 WL 1608664 (E.D. Pa. Apr. 22, 2014)

Dec 01 2014

Key Insight: In case where defendant represented that it was currently defending approximately 1,709 claims nationwide involving its various products, and that it had limited financial resources, court denied defendant’s request that plaintiffs share in the cost of producing documents and ESI as defendant did not demonstrate that ESI sought by plaintiffs was inaccessible; court further noted that, given the importance of the discovery requests to plaintiffs’ ability to prove their claims, and the seriousness of the injuries alleged by plaintiffs, the burden or expense of the discovery requests was outweighed by the likely benefit to plaintiffs

Nature of Case: Product liability re implantable surgical meshes

Electronic Data Involved: ESI, text messages, voicemail messages

FDIC v. Bowden, No. CV413-245, 2014 WL 2548137 (S.D. Ga. June 6, 2014)

Dec 01 2014

Key Insight: Where FDIC spent $614,000 to digitally scan about 2.01 terabytes of data or 153.6 million pages of documents after taking over failing bank, and before any written document requests were served, court evaluated parties? competing proposals for conducting e-discovery, discussed the governing standards for manner of document production, formatting issues, and cost-shifting for digital format conversion expenses, and ultimately approved protocol offered by FDIC; court further instructed that, in the event of any further ESI-protocol disagreement or objection to the court?s decision, the parties must first confer and attempt to craft a joint ESI protocol or consent order in light of the principles highlighted in the court?s ruling

Nature of Case: Bank receiver brought bank mismanagement case against 16 of bank’s former directors and officers

Electronic Data Involved: Records of failed bank

Campbell Alliance Group, Inc. v. Dandekar, No. 5:13-CV-00415-FL, 2014 WL 145037 (E.D.N.C. Jan. 13, 2014)

Dec 01 2014

Key Insight: Court granted plaintiff’s motion for additional, expedited discovery to conduct forensic examination of additional storage devices, and set out in full the parties’ Stipulation Regarding Protocol for Forensic Investigation and Analysis

Nature of Case: Former employer asserted breach of contract and breach of fiduciary duty claims against former employees for alleged violations of post-employment activity restrictions and confidentiality covenants contained in employment agreements

Electronic Data Involved: Various electronic storage devices

Wal-Mart Stores, Inc. v. Ind. Elec. Workers Pension Trust Fund IBEW, 95 A.3d 1264 (Del. 2014)

Dec 01 2014

Key Insight: Delaware Supreme Court affirmed rulings of Court of Chancery in all respects, finding no error in setting the range of dates for production, requiring Wal-Mart to produce officer-level documents, requiring Wal-Mart to collect and search data from disaster recovery backup tapes for two additional custodians where Wal-Mart had voluntarily collected disaster tape recovery data for nine other custodians, and invoking the exception articulated in Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), to find that IBEW was entitled to documents protected by attorney-client privilege and work product protection in Section 220 litigation

Nature of Case: Pursuant to title 8, section 220 of the Delaware Code, shareholder brought action against corporation for production of documents related to alleged bribery scandal

Electronic Data Involved: Disaster recovery tapes for certain records custodians and documents related to company’s compliance with Foreign Corrupt Practices Act

Lovett v. Cole, No. 1:11-cv-277, 2014 WL 5426168 (S.D. Ohio Oct. 22, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff?s motion for sanctions based on correctional facility?s failure to preserve video surveillance footage of ?out-of-place? incident that preceded use of force incident, or digital versions of photographs taken of plaintiff?s injuries and cell after use of force incident, finding that plaintiff failed to establish a duty to preserve digital versions of photographs where hard copy photographs were preserved in accordance with the facility?s policy and procedure, and there was no evidence that defendants knew about the ?out-of-place? incident or recognized it as relevant to the use of force incident (the video footage of which was preserved); court further found that plaintiff failed to show that defendants deliberately lost or destroyed the evidence with a culpable state of mind

Nature of Case: Inmate sued correctional officers for use of excessive force

Electronic Data Involved: Video footage and digital information regarding plaintiff’s injuries and cell

Shire LLC v. Amneal Pharms., LLC, No. 2:11-cv-03781 (SRC)(CLW), 2014 WL 1509238 (D.N.J. Jan, 10, 2014)

Dec 01 2014

Key Insight: Weighing five factors to resolve the issue of waiver by inadvertent disclosure, court found that the use of analytical software without attorney review did not constitute reasonable steps to prevent inadvertent disclosure, and also faulted defendants? efforts to rectify the error, noting that defendants did not conduct a remedial investigation until after plaintiff alerted defendants that the production appeared to contain privileged documents; court concluded that, in light of the fact that the inadvertent disclosure was the result of a failure to review, justice would be served by a finding of waiver

Nature of Case: Patent infringement

Electronic Data Involved: Documents protected by attorney-client privilege

Peterson v. Matlock, No. 11-2594 (FLW)(DEA), 2014 WL 5475236 (D.N.J. Oct. 29, 2014)

Dec 01 2014

Key Insight: Where plaintiff’s medical records were previously provided in a PDF file organized in reverse chronological order and plaintiffs agreed to provide metadata contained in the audit trail, and plaintiff then sought production of the records either in their native format with the required software reader or broken down into “searchable headings,” court found that defendants had demonstrated they would suffer substantial hardship and/or expense in complying with plaintiff?s request to provide the records in their native format, and that such burden outweighed plaintiff?s interests in receiving the records in native format

Nature of Case: Claims arising from alleged assault by correctional officers

Electronic Data Involved: Plaintiff’s electronically stored medical records

Dorchester Fin. Holdings Corp v. Banco BRJ S.A., 11-CV-1529 (KMW) 2014 WL 7051380 (S.D.N.Y. Dec. 15, 2014)

Dec 01 2014

Key Insight: Trial court found Plaintiff committed spoliation when a computer containing key documents was destroyed. Court imposed sanctions of precluding evidence derived from the computer from being presented at trial and ordered Plaintiff to pay Defendant?s attorney fees and costs. Upon review, Court upheld the spoliation ruling but imposed a mandatory adverse inference instead of the preclusion order. Court agreed that Plaintiff had a duty to preserve, was culpable in the destruction of the evidence, and the data that was destroyed was relevant to the Defendant?s claims. The court further elaborated that Plaintiff?s duty to preserve did not end when the computer allegedly crashed, and that Plaintiff should have made reasonable efforts to recover the data it contained. Saying that the spoliation prejudiced the defendant in a ?severe way? that can only be corrected by a ?substantial sanction,? the Court found that a mandatory adverse inference was the best way to repair the damage to Defendant without being a ?harsh measure given the extent of Plaintiff?s reliance of the documents??

Nature of Case: Breach of Contract, Fraud

Electronic Data Involved: Contents of “crashed” laptop computer

Icon-IP Pty Ltd., v. Specialized Bicycle Components, Inc., No. 12-cv-03844-JST (MEJ), 2014 WL 6788182 (N.D. Cal. Dec. 2, 2014)

Dec 01 2014

Key Insight: Plaintiff sought to compel Defendant to produce additional documents relevant to their design infringement claims by searching Defendant?s emails and electronic design documents. Defendant argued that this comprehensive search of electronic design documents would be ?overly burdensome, oppressive, and not reasonably calculated to lead to discovery of admissible evidence,? and conducted a reasonable search responsive to Plaintiffs request, but did not explain why and how the comprehensive search would be burdensome. Defendant complied with a stipulation agreeing to specific email search terms and custodians, subject to objections which Plaintiff did not respond to. The court ordered that Plaintiff was entitled to additional discovery of electronic design documents because Defendant did not meet the burden of showing the request was unduly burdensome. However, since Defendant did comply with the stipulation, further email searches were not needed.

Nature of Case: Patent Litigation

Electronic Data Involved: ESI

Black Diamond Mining Co. v. Genser, No. 12-125-ART, 2014 WL 3611329 (E.D. Ky. July 22, 2014)

Dec 01 2014

Key Insight: Court addressed motion for sanctions and found that accused spoliators had acted intentionally and/or negligently, but not in bad faith; court found that sanctions were ?unwarranted? for the negligent loss of certain email attachments because of defendant?s failure to ?access documents in an archive while gathering the original emails?- even despite finding that defendant acted with a ?culpable state of mind? – where plaintiff failed to produce any evidence of the attachments? relevance (court noted that defendant did not ?actively delete the attachments? but rather its agents ?forgot to take steps to preserve the documents before they were deleted from the archive?); for individual actors? negligent and intentional failures to preserve ESI and hard copy documents, the court found that the ?test of relevance [was] satisfied? and imposed a permissive adverse inference, but declined to order reimbursement of the Trustee?s fees or the costs of bringing the motion

Electronic Data Involved: Email attachments, ESI, hard copy

Catagory:Case Summaries