Case Summaries – Page 152 – Electronic Discovery Law

United States ex rel Lusby v. Rolls-Royce Corp., No. 1:03-cv-680-SEB-WGH, 2013 WL 1666745 (S.D. Ind. Apr. 17, 2013)

Dec 01 2013

Key Insight: Court awarded costs in favor of defendant, including costs related to electronic discovery: ?We have carefully considered Plaintiff’s objections to the nature of the costs sought to be recovered by Defendant, in particular, to the costs incurred in connection with the production of electronically stored information, but we do not find Plaintiff’s objections to be meritorious. As Defendant points out in its briefings, we have awarded as costs the expense of producing electronically stored information in several other recent cases, and Plaintiff’s objections are based largely on judicial decisions issued by courts in other districts and circuits, including the Eastern District of Missouri and the Ninth Circuit Courts of Appeals, which are contrary to the rulings within our Seventh Circuit.?

Electronic Data Involved: ESI (taxable costs)

Holcomb v. Wells Fargo Bank, N.A., No. CV412-111, 2013 WL 434974 (S.D. Ga. Feb. 4, 2013)

Dec 01 2013

Key Insight: Where plaintiff claimed that the document index which identified which Bates stamped document responded to which document request was not sufficient to enable a meaningful review and that Plaintiff?s counsel was ?unable to decipher the content? of what was produced (apparently because of the presence of ?jargon? and other codes), the court found that the document production was adequate under Rule 34, noting that there was no suggestion that the documents were not produced as they were kept in the usual course of business and that they were identified by Bates stamps to correspond with specific requests but nonetheless ordered counsel to confer in good faith to attempt resolution of ?any ?deciphering? issues? “(e.g. defense counsel or staff could sit down with plaintiff?s counsel and explain any coding or abbreviations?or have a corporate representative provide a glossary of some sort)”

Nature of Case: Lender-liability arising from alleged wrongful foreclosure

Electronic Data Involved: ESI

Potts v. Dollar Tree Stores, Inc., No. 3:11-cv-01180, 2013 WL 1176504 (M.D. Tenn. Mar. 20, 2013)

Dec 01 2013

Key Insight: Court declined to compel production of Plaintiffs? Facebook or other social media pages absent a threshold showing that the accounts would contain information within the scope of discovery but concluded that information stored on Plaintiff?s computer ?could lead reasonably to the discovery of admissible evidence? and required that the parties agree to a word search of Plaintiff?s computer by a neutral third party to ?asses whether Plaintiff?s computer contains relevant information?

Nature of Case: Employment discrimination/harassment

Electronic Data Involved: Facebook and social media, personal computer

Flagg v. City of Detroit, 715 F.3d 165 (6th Cit. 2013)

Dec 01 2013

Key Insight: Citing a court?s discretion in determining the strength of any adverse inference to be applied and noting that such a decision is determined on a case by case basis, the appellate court held that the District Court did not abuse its discretion in imposing a permissive rather than a non-rebuttable adverse inference for the defendants? bad faith spoliation of email

Nature of Case: Minor son of murder victim alleged that defendants conducted lax investigation and deliberately ignored or actively concealed material evidence

Electronic Data Involved: Emails

Lane v. Vasquez, 961 F.Supp.2d 55 (D.D.C. 2013)

Dec 01 2013

Key Insight: Court denied Plaintiff?s motion for default judgment for alleged spoliation of ?documents pertaining to his non-selections? (in hiring) where Plaintiff failed to present ?clear and convincing evidence? that the ?abusive behavior? occurred and failed to show why a lesser sanction would not sufficiently punish or deter Defendant?s behavior; court also addressed Plaintiff?s motion for an adverse inference as to several specific instances of spoliation and provided individual analysis for each piece of evidence and ultimately denied the adverse inference as to all evidence for reasons including the failure to establish that any documents were in fact destroyed and the court?s determination that an adverse inference would not rebut Defendant?s ?legitimate, nondiscriminatory reasons? for the alleged adverse employment actions

Nature of Case: Employment discrimination

Electronic Data Involved: ?Documents related to the hiring process for positions he was denied?

Maximum Human Performance, LLC v. Sigma-Tau Healthscience LLC, No 12-cv-6526-ES-SCM, 2013 WL 4537790 (D.N.J. Aug. 27, 2013)

Dec 01 2013

Key Insight: Upon third party?s objection to Defendant?s subpoena and its motion for cost shifting, the court found that the third party both had an interest in the litigation and an ?ability to pay all or most of the costs to comply with the subpoena? but nonetheless concluded that ?it would not bear all of the costs of compliance? and thus ordered the third party to select an e-Discovery vendor to search the key words agreed upon and ordered that Defendant shall reimburse the third party ?one third of the vendor costs to harvest the electronically stored information?

Nature of Case: Product liability

Electronic Data Involved: ESI

Mastr Adjustable Rate Mortgages Trust v. UBS Real Estate Secs. Inc., No. 12 Civ. 7322(HB)(JCF), 2013 WL 5745855 (S.D.N.Y. Oct. 23, 2013)

Dec 01 2013

Key Insight: Although court found that U.S. Bank was grossly negligent in failing to institute a litigation hold until eight months after its duty to preserve arose, court denied spoliation sanctions as there was no evidence of bad faith but positive evidence of good faith, and U.S. Bank presented persuasive evidence that no relevant documents were destroyed; court further ruled that litigation hold that U.S. Bank finally did impose was reasonable, as custodians were guided by both business people and counsel as to what to retain and counsel monitored compliance, gathering and reviewing relevant emails in the legal hold folders, substantive emails and attachments were printed out and retained separately and not subject to autodeletion policy

Nature of Case: Breach of contract, declaratory judgment

Electronic Data Involved: ESI

Westdale Recap Props., Ltd. v. NP/I & G Wakefield Commons, LLC, No. 5:11-CV-659-D, 2013 WL 5424844 (E.D.N.C. Sep. 26, 2013)

Dec 01 2013

Key Insight: Where producing party defended tardiness of production by explaining it had been awaiting agreement on protocol for ESI, as contemplated in parties? discovery plan, and proposed search terms from plaintiffs to conduct a supplemental search of ESI pursuant to such protocol, court granted in part and denied in part plaintiffs? motion to compel, setting deadlines for plaintiffs to provide different custodians, dates and/or keyword search terms, and for production, resolving that production should be in the form of searchable PDF?s with the option of requesting particular ESI in native format if there is a demonstrable need, and requiring defendant to prepare privilege log meeting requirements of Rule 26(b)(5)(A) and duly signed by counsel for any otherwise responsive documents withheld on grounds of privilege

Nature of Case: Fraud, civil conspiracy, unfair and deceptive trade practices and negligent misrepresentation

Electronic Data Involved: ESI

Peerless Indus., Inc. v. Crimson AV LLC, No. 11 C 1768, 2013 WL 1195829 (N.D. Ill. Mar. 22, 2013)

Dec 01 2013

Key Insight: District court evaluated and overruled each of defendants’ objections to various discovery rulings of magistrate judge, applying a “clearly erroneous” standard of review; among other things, district court found that magistrate judge did not err in ruling that defendants’ production of ESI was insufficient in that it lacked all of the required metadata, e.g., author information, information about whether the file was stored, and revision histories for computer-aided designs

Nature of Case: Claimis for patent infringement and design patent infringement arising out of defendants’ manufacture and sale of certain TV mounts

Electronic Data Involved: ESI

Lifetouch Nat?l School Studios, Inc. v. Moss-Williams, No. C10-05297, 2013 WL 11235928 (N.D. Cal. Oct. 15, 2013)

Dec 01 2013

Key Insight: Where a former employee (defendant) admitted prior possession of a thumb drive containing Plaintiff?s data (her prior employer) and that she had connected the thumb drive to her new employer?s computers (who is also a defendant) but where she claimed that she had not transferred any of Plaintiff?s information, that she could not recall the computer she connected to, and that she destroyed the drive before her duty to preserve arose, court reasoned that there was a ?sufficient nexus between the defendant?s computers and the alleged misappropriation of trade secrets to warrant forensic imaging of the computers? (over 60 in number) but, applying the cost-shifting analysis from Zubulake v. UBS Warburg LLC 217 FRD 309 (SDNY 2003), found that in light of the ?broad scope of the request, the cost of production, the resource disparity of the parties? and defendant?s repeated assertion that the information did not exist, cost shifting was appropriate; court indicated it ?may reconsider? cost allocation if the expert determined that information from the thumb drive was transferred to defendant?s computer

Nature of Case: Trade secrets

Electronic Data Involved: ESI of former employer

Catagory:Case Summaries