Catagory:Case Summaries

1
Fleming v. Escort, Inc., No. 1:12-CV-066-BLW, 2014 WL 4853033 (D. Idaho Sep. 29, 2014)
2
Klayman v. City Pages, No. 5:13-cv-143-Oc-22PRL, 2014 WL 5426515 (M.D. Fla. Oct. 22, 2014)
3
Las Vegas Sands Corp. v. Eighth Judicial Dist. Ct., 331 P.3d 876 (Nev. 2014)
4
Warren Indus., Inc. v. PMG Ind. Corp., No. 13-CV-13026, 2014 WL 5705011 (E.D. Mich. Nov. 5, 2014)
5
In re Bridgepoint Educ., Inc., No. 12cv1737 JM (JLB), 2014 WL 3867495 (S.D. Cal. Aug. 6, 2014)
6
Lozoya v. Allphase Landscape Constr., Inc., No. 12-cv-1048-JLK, 2014 WL 222326 (D. Colo. Jan. 21, 2014)
7
Helget v. City of Hays, No. 13-2228-KHV-KGG, 2014 WL 1308893 (D. Kan. Mar. 31, 2014)
8
Quintero Cmty. Assoc. v. Hillcrest Bank, No. 04-11-CV-00893-DGK, 2014 WL 1764791 (W.D. Mo. May 2, 2014)
9
Rodriguez v. City of New York, No. 114739/10, 2014 WL 2438436, May 29, 2014 (unpublished)
10
Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 (SRN/SER), 2014 WL 1309095 (D. Minn. Apr. 1, 2014)

Fleming v. Escort, Inc., No. 1:12-CV-066-BLW, 2014 WL 4853033 (D. Idaho Sep. 29, 2014)

Key Insight: Where allegations covered events occurring over past 15 years and defendant produced almost no email in response to 65 document requests and 12 interrogatories, and despite general claim of privilege defendant did not provide a privilege log, court granted plaintiff’s motion and ordered defendant to answer three questions to allow plaintiff and court to evaluate defendant’s claim that it had produced everything: 1) What search terms did you use? 2) What computers or repositories did you search within? and 3) What was the time frame for your search? If questions were not answered fully and completely in 10 days, plaintiff would be allowed to file a new motion for sanctions

Nature of Case: Patent infringement

Electronic Data Involved: Email

Klayman v. City Pages, No. 5:13-cv-143-Oc-22PRL, 2014 WL 5426515 (M.D. Fla. Oct. 22, 2014)

Key Insight: Court denied plaintiff’s motion to compel given broad scope of the requests and plaintiff’s limited showing as to relevance, and defendants’ representation that they had produced all the materials upon which they relied in writing the subject publications; court further denied request for appointment of third party to conduct forensic examination of defendants’ work and personal computers, telephone records and cell phone records, finding that plaintiff’s conclusory and speculative assertions that defendants were concealing evidence were inadequate to meet his burden of showing good cause for such an invasive computer examination

Nature of Case: Defamation claims based on statements made in three newspaper articles

Electronic Data Involved: ESI

Las Vegas Sands Corp. v. Eighth Judicial Dist. Ct., 331 P.3d 876 (Nev. 2014)

Key Insight: Nevada Supreme Court declined to intervene in discovery dispute scheduled for hearing by district court, concluding that the mere presence of a foreign international privacy statute did not itself preclude Nevada district courts from ordering litigants to comply with Nevada discovery rules — rather, the existence of such a statute would become relevant to the district court?s sanctions analysis in the event the discovery order was disobeyed; since district court had indicated it would balance defendant’s desire to comply with the privacy statute with other factors at the yet-to-be-held sanctions hearing, defendant failed to demonstrate that district court had exceeded its jurisdiction or exercised its discretion arbitrarily or capriciously and extraordinary relief was not warranted

Nature of Case: President and CEO of corporation brought action against foreign corporation alleging violation of employment agreement

Electronic Data Involved: Documents on hard drives, coipes of email

Warren Indus., Inc. v. PMG Ind. Corp., No. 13-CV-13026, 2014 WL 5705011 (E.D. Mich. Nov. 5, 2014)

Key Insight: Court rejected defendants’ argument that they did not have access to the email of defendants? Chairman of the Board because the email was kept on a server in Germany that defendants did not own or control, and ruled that, although defendants’ IT manager may not be able to access the Chairman’s email from his Indiana location, the Chairman, as Chairman of the Board of defendant companies, “indeed has possession, custody, and control over his own e-mail communications, regardless of where the server containing these e-mails [was] located; court granted plaintiff’s motion to compel and awarded plaintiff its attorney’s fees and costs associated with the motion

Nature of Case: Breach of contract

Electronic Data Involved: Email stored on server in Germany

In re Bridgepoint Educ., Inc., No. 12cv1737 JM (JLB), 2014 WL 3867495 (S.D. Cal. Aug. 6, 2014)

Key Insight: Plaintiff sought to expand the scope of defendants? review and argued that defendants? alleged cost and burden would be lower than represented because defendants based their representations on manual review, rather than predictive coding. Defendants responded that manual review was still necessary where the predictive coding tool merely indicated a probability that a document was relevant and was not ?foolproof? – thus requiring the review. Relying on Rule 26(b)(2)(C), the court concluded that the additional discovery would be unduly burdensome and declined to grant Plaintiff?s request. The court also addressed Plaintiff?s request to require the defendants to run documents already produced through the predictive coding process. The court declined, reasoning that it had previously approved defendants? method of ?using linear screening with the aid of search terms? but, where defendant was willing to run additional terms, directed the parties to meet to discuss such terms.

Electronic Data Involved: ESI, email

Lozoya v. Allphase Landscape Constr., Inc., No. 12-cv-1048-JLK, 2014 WL 222326 (D. Colo. Jan. 21, 2014)

Key Insight: Court ordered production of ESI from plaintiff?s girlfriend?s computer upon finding that the information, including when she searched for an attorney for the plaintiff and the search terms she employed, was relevant to the litigation and ordered the production of plaintiff?s ESI, despite his claims that his computers were ?broken? absent factual support for the contention that the data was not accessible; court further ordered production of all relevant ?phone ESI? in plaintiff?s possession

Nature of Case: Employment litigation (wage and hour)

Electronic Data Involved: ESI on plaintiff’s computers and on third party’s computer, “Phone ESI”

Helget v. City of Hays, No. 13-2228-KHV-KGG, 2014 WL 1308893 (D. Kan. Mar. 31, 2014)

Key Insight: Where defendant put ESI at issue by stating that plaintiff was fired, in part, for improper, personal use of the city’s computers, ESI relating to computer usage by plaintiff and certain others was relevant and city should have placed litigation hold on plaintiff’s immediate coworkers, those holding similar positions within the city, and the identified “key players”; court ordered city to bear the cost of forensic restoration

Nature of Case: Wrongful termination

Electronic Data Involved: E-mail, internet usage logs, and other ESI

Quintero Cmty. Assoc. v. Hillcrest Bank, No. 04-11-CV-00893-DGK, 2014 WL 1764791 (W.D. Mo. May 2, 2014)

Key Insight: Where defendants produced ESI that had previously been provided to the FDIC in the course of its investigation but could not provide the passwords to access the information and where the requesting party was told by “several companies” that the documents would be ?nearly impossible? to unencrypt, the court declined to impose spoliation sanctions reasoning that ?a presumption of spoliation only arises when there is evidence of ?intentional destruction indicating a desire to suppress the truth?? and that the requesting party had not shown intentional destruction (?QCA has not provided the court with sufficient evidence that Defendants, or their attorneys, placed the passwords on the discs, let alone evidence that these actors did so to intentionally block QCA’s access.?)

Nature of Case: Claims arising from failed property investment

Electronic Data Involved: Password protected ESI

Rodriguez v. City of New York, No. 114739/10, 2014 WL 2438436, May 29, 2014 (unpublished)

Key Insight: Court granted plaintiff?s cross-motion for sanctions in the form of an adverse inference instruction, finding that it was particularly concerning that defendant Department of Education permitted surveillance video depicting at least some of the activity involved in litigation to be taped over where a police investigation immediately ensued, a Notice of Claim was filed by plaintiff, and the faculty of the school thought to view the video soon after the events occurred, and in the case of one teacher, prior to her deposition

Nature of Case: Student assaulted during school field trip sued for inadequate supervision and negligent hiring

Electronic Data Involved: Surveillance video

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 (SRN/SER), 2014 WL 1309095 (D. Minn. Apr. 1, 2014)

Key Insight: District court judge overruled plaintiff’s objection to magistrate judge’s report and recommendation on plaintiff’s motion for sanctions, which found spoliation by defendant in not preserving consul’s mobile phone given that defense counsel knew or should have known that the phone was relevant to the pending litigation, but declined to impose sanctions because there was insufficient evidence of prejudice to plaintiff and plaintiff had failed to pursue opportunities to obtain the information through other methods

Nature of Case: Employment discrimination

Electronic Data Involved: Laptop; text messages and other ESI on mobile phone

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