Case Summaries – Page 125 – Electronic Discovery Law

In re Text Messaging Antitrust Litig., No. 08 C 7082, MDL No. 1997, 2014 WL 4343286 (N.D. Ill. Sep. 2, 2014)

Dec 01 2014

Key Insight: After granting summary judgment to defendants, court evaluated defendants’ bills of costs under Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) and sustained plaintiffs’ objections to several categories of defendants’ claimed e-discovery expenses because they did not constitute the cost of “making copies” under Section 1920(4), but were preparatory steps that occurred prior to copying or occurred after copying, e.g., electronic data “processing” expenses, “quality check” expenses, OCR costs, ?tech time,? ?data capture,? ?master CD replication,? costs associated with processing or creation of a “load file,” or cost of software packages used in production process; costs of converting native files to TIFF were recoverable

Nature of Case: Plaintiffs unsuccessfully claimed price-fixing among providers of text messaging services

Electronic Data Involved: ESI

Pick v. City of Remsen, No. C 13-4041-MWB, 2014 WL 458732 (N.D. Iowa Sep. 15, 2014)

Dec 01 2014

Key Insight: District court affirmed magistrate judge’s order granting defendants’ motion for order requiring destruction of inadvertently-produced privileged email, rejecting plaintiff’s various objections and finding no clear error in magistrate judge’s application of five-step “middle of the road” analysis set forth in Hydroflow, Inc. v. Enidine Inc., 145 F.R.D. 626, 637 (W.D.N.Y. 1993) which considerations include: (1) reasonableness of precautions, (2) number of inadvertent disclosures, (3) extent of the disclosures, (4) timeliness of rectifying measures, and (5) overriding interest in justice

Nature of Case: Libel, slander, wrongful termination

Electronic Data Involved: Privileged email

Schreane v. Beemon, 575 Fed. Appx. 486 (5th Cir. 2014)

Dec 01 2014

Key Insight: District court did not err in rejecting plaintiff?s request for spoliation inference based on erasure of surveillance tape where plaintiff failed to make the requisite showing of bad faith, as plaintiff offered no evidence that anyone who knew of his objections to the subject correctional officers? conduct was involved in the decision to record over the tape; court further noted that government produced what remained of requested tape (a few minutes of plaintiff?s assault), government provided affidavit of electronics technician who described prison?s general policy of automatically recording over surveillance video not marked for investigation within 15-30 days of recording, and there was no indication that any prison official even viewed the footage because it was not live-monitored 24 hours a day

Nature of Case: Prisoner brought Bivens action against correctional officer, alleging Eighth Amendment failure-to-protect claims

Electronic Data Involved: Surveillance tape

Fog Cap Acceptance, Inc. v. Verizon Bus. Network Servs., Inc., No. 3:11-CV-724-PK, 2014 WL 6064217 (D. Or. Nov. 12, 2014)

Dec 01 2014

Key Insight: Court concluded that, because plaintiff’s spoliation of evidence did not deprive defendant of any complete defense to any of plaintiff’s claims of liability, dismissal was inappropriate sanction; instead, appropriate sanction would be to instruct the jury that it could infer from plaintiff?s failure to preserve the hard drives and disks that they contained evidence favorable to defendant, and to exclude plaintiff?s proffered expert testimony regarding the likelihood that the unpreserved evidence contained usable software or source code; however, because court went on to grant defendant’s motion for summary judgment, it denied defendant’s motion for sanctions as moot

Nature of Case: Breach of contract, negligence, and violations of bailment

Electronic Data Involved: Source code, hard drives

Ablan v. Bank of Am. Corp., No. 11 CV 4493, 2014 WL 6704293 (N.D. Ill. Nov. 24, 2014)

Dec 01 2014

Key Insight: Adopting magistrate judge’s report and recommendation, district court granted defendants? motion to strike plaintiffs? additional damages claim as sanction for plaintiffs? tardy production of documents relating to additional damages claim, which production occurred more then three months after discovery period closed, as plaintiffs offered no justification for failing to timely produce the documents and defendants would be prejudiced if plaintiffs were allowed to rely on the new evidence to defeat summary judgment or at trial; court further awarded defendants their attorneys? fees incurred in filing the motion, but denied defendants? request for expert costs associated with reviewing the new information because defendants? experts would have reviewed any new information even if it had been timely, and there was no evidence that defendants? experts had to revise their expert reports due to the belated production, and therefore no excess expert costs resulted from the late production

Nature of Case: Breach of contract

Electronic Data Involved: Documents on eight CD-ROMS

Johnson v. Allstate Prop. & Cas. Ins. Co., No. C 14-5064, 2014 WL 7377198 (W.D. Wash. Dec. 29, 2014)

Dec 01 2014

Key Insight: Addressing Defendant?s claims that the emails of thirty-four employees previously identified by Defendant as potentially having responsive information were not reasonably accessible, the court indicated that Defendant?s declaration in support of that claim was ?of limited value? where it made only broad claims regarding the potential time it could take to search each computer but failed to account for the actual time taken to search the computers of the four primary adjusters for a prior production but acknowledged it was ?extremely difficult? to conclude that all thirty-four employees had ?significant, relevant discoverable emails or documents? and thus ordered the search and production of one custodian revealed in deposition to have been involved in the at-issue denial of coverage and that Plaintiff could choose 10 additional employees? computers to be searched based on Defendant?s court-ordered description of each employees? job and the type of documents they were likely to maintain

Nature of Case: Insurance litigation

Electronic Data Involved: Emails

Stewart v. Continental Cas. Ins. Co., No. 12-005320KD-B, 2014 WL 12600282 (S.D. Ala. Jan. 1, 2014)

Dec 01 2014

Key Insight: Where responding party claimed that cloning and searching the hard drives from ?old computers? changed out in 2010 would cost more than $13,000 and submitted the affidavit of its CEO in support of its claim that the information was not reasonably accessible, the court reasoned it was ?not clear? that the ESI was not reasonably accessible or that the cost outweighed the ?importance and usefulness of the emails? and ordered the responding party to make arrangements for a forensic search of the CEO?s old hard drive which ?should yield representative information regarding the accessibility of the requested emails, the probability of locating the emails, the usefulness of the emails, the actual cost likely to be incurred for a search of all of the old computer hard drives at issue?; court also denied cost-shifting request ?at this time?

Nature of Case: Insurance

Electronic Data Involved: Emails on old computer hard drives

Pegasus Aviation I, Inc. v. Varig Logistica S.A., 2014 WL 2522717 (N.Y. App. Div. June 5, 2014)

Dec 01 2014

Key Insight: Divided appellate court reversed trial court?s order granting adverse inference instruction against defendants where plaintiffs did not establish relevance of lost material, facts did not support a finding of gross negligence on the part of defendants, but at most, a finding of simple negligence in failing to ensure that acquired company instituted a litigation hold, and plaintiffs presented no evidence that such a hold would have saved the relevant ESI from destruction when the acquired company?s entire computer system crashed

Safety Today, Inc. v. Roy, No. 2:12-cv-510, 2014 WL 1049962 (S.D. Ohio Mar. 17, 2014)

Dec 01 2014

Key Insight: Magistrate judge denied plaintiff’s motion for monetary sanctions based on defendants’ alleged disobedience of discovery orders, which plaintiff asserted made its imaging of certain electronic devices more expensive than necessary, since plaintiff did not submit any proof that piecemeal production of devices for imaging caused it additional vendor expense and record was too sparse to find a violation of the express terms of the orders

Nature of Case: Misappropriation of confidential business information, unfair competition

Electronic Data Involved: Hard drives, servers and smart phones

Didier v. Abbott Labs, No. 13-2046-JWL, 2014 WL 219851 (D. Kan. Jan. 21, 2014)

Dec 01 2014

Key Insight: Finding that steps taken by defendants to locate responsive documents and their continued effort to work with plaintiff and supplement their production appeared sufficient, court declined to impose drastic sanctions requested by plaintiff but did allow plaintiff to re-depose particular witness as to emails that were produced after the witness’s deposition since plaintiff may have been prejudiced by her inability to question the witness regarding the content of those emails

Nature of Case: Employment discrimination

Electronic Data Involved: ESI including text messages

Catagory:Case Summaries