Case Summaries – Page 141 – Electronic Discovery Law

Joffe v. Google, Inc., No. 10-md-02184-CRB (MEJ), 2014 WL 4681035 (N.D. Cal. Sep. 19, 2014)

Dec 01 2014

Key Insight: District Court adopted magistrate judge?s recommendation (at 2014 WL 4681403) but sustained two of plaintiffs? objections to Google?s Jurisdictional Discovery Proposal, ruling that the search should include not only each plaintiff?s network from which communications may have been sent, but also any other network on which plaintiffs? communications might have been received, and that plaintiffs should see the results of the special master?s searches in order to provide the special master with feedback to aid in subsequent searches

Nature of Case: Putative class action in which plaintiffs alleged that Google intentionally intercepted, recorded and stored their Wi-Fi communications

Electronic Data Involved: Google’s “Street View” data

Ades v. Omni Hotels Mgmt. Corp., No. 2:13-cv-02468-CAS(MANx), 2014 WL 4627271 (C.D. Cal. Sep. 8, 2014)

Dec 01 2014

Key Insight: Considering plaintiffs? motion for class certification, court discussed Omni?s efforts to preserve call records and recordings and the apparently accidental loss of related call detail records and attendant search functionality; plaintiffs argued that any difficulties in identifying class members was due to Omni?s destruction of data that could have been used to search call recordings, and that it would unfair to allow such difficulties to prejudice class certification; court ultimately certified class and ruled that, to the extent Omni argued that ?identifying class members? may be difficult, those concerns were more properly addressed after class certification

Nature of Case: Putative class action alleging claims under the California Invasion of Privacy Act

Electronic Data Involved: Audio recordings of telephone calls and related data

Ferriggi v. Best Yet Market of Astoria, Inc., No. 8564/2013, 2014 WL 5334000 (N.Y. Sup. Ct. Oct. 17, 2014)

Dec 01 2014

Key Insight: Court found that defendant was negligent in failing to preserve or to make diligent efforts to retrieve surveillance video, but that loss of video did not fatally deprive plaintiff of means to prosecute his action given that witness who viewed the videotape and grocery store worker who unpacked boxes near accident location were available to testify, and accident report and medical response reports provided plaintiff with ability to prove proximate cause of accident; trial court would fashion appropriate negative inference charge against defendant based upon its failure to preserve the videotape and defendant would be precluded from offering testimony at trial to contradict plaintiff’s claim of adequate notice or that defendant created the condition which caused plaintiff to slip and fall

Nature of Case: Slip and fall accident at supermarket

Electronic Data Involved: Surveillance video

Vicente v. City of Prescott, No. CV-11-08204-PCT-DGC, 2014 WL 3894131 (D. Ariz. Aug. 8, 2014)

Dec 01 2014

Key Insight: Although court found City’s preservation efforts “plainly deficient,” as City did not notify its IT department to suspend automatic procedure for eliminating deleted emails after 30 days, nor did it instruct its IT department to assist key individuals in collecting and preserving relevant email or provide assistance in doing so from the legal department, court decline to impose case-dispositive sanctions against City because plaintiff did not discuss the bad faith standard nor show how it was satisfied, and loss of only one email did not constitute significant prejudice where plaintiff collected and presented good deal of evidence on same issue; court granted plaintiff?s motion to compel production of unredacted versions of two litigation hold letters sent by the City to its employees

Nature of Case: Fire Captain alleged claims of retaliation in violation of the First Amendment and state law claims for defamation and injunctive relief

Electronic Data Involved: Email

IQ Holdings, Inc. v. Stewart Title Guar. Co., No. 01-13-00952-CV, 2014 WL 6601148 (Tex. App. Nov. 20, 2014)

Dec 01 2014

Key Insight: Where hard copy closing file itself was destroyed, but defendants electronically preserved the closing file in two different storage systems, FileStor and SureClose, appellate court found that trial court acted within its discretion when it denied plaintiff?s motion for spoliation sanctions

Nature of Case: Real estate dispute

Electronic Data Involved: Closing file, title commitment

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”

Ackerman v. PNC Bank, N.A., No. 12-CV-42 (SNR/JSM), 2014 WL 258565 (D. Minn. Jan. 23, 2014)

Dec 01 2014

Key Insight: District court rejected plaintiff’s appeal of magistrate judge’s order denying sanctions, as there was no evidence that defendants destroyed evidence or inadequately investigated for ESI; fact that evidence was not produced “in and of itself is not a basis for [the court] to conclude that there was unlawful destruction or spoliation”

Electronic Data Involved: ESI

Celestica Inc. Sec. Litig., No. 07 Civ. 312(GBD)(MHD), 2014 WL 1301881 (S.D.N.Y. Mar. 31, 2014)

Dec 01 2014

Key Insight: Mandatory adverse inference instruction was not warranted by former Chairman’s admitted deletion of e-mails after his retirement despite written document preservation instruction from corporate counsel at the outset of litigation, as defendants did not have requisite culpable state of mind and there was insufficient evidence of relevance or prejudice; instead, permissive adverse inference instruction was appropriate

Nature of Case: Securities class action

Electronic Data Involved: E-mails of defendant Celestica’s former Chairman of the Board

Catagory:Case Summaries