Case Summaries – Page 167 – Electronic Discovery Law

In re Heinz, 501 B.R. 746 (Bankr. N.D. Ala. 2013)

Dec 01 2013

Key Insight: Although court found that evidence compelled conclusion that debtor?s spoliation of electronic evidence, failure to preserve both ESI as well backup paper documentation, and failure to produce thumb drive was willful and intentional given the timing during imminent or ongoing litigation, court declined to impose a specific sanction against the debtor such as a default judgment and instead drew an adverse inference against debtor to the extent it impacted the debtor?s overall credibility; court ultimately found that plaintiffs? claim against the debtor for $39,296, stemming from judgment obtained by plaintiffs against debtor for breach of contract, was not dischargeable

Nature of Case: Complaint to determine dischargeability

Electronic Data Involved: Thumb drive containing financial information from 2009 through 2011

Process Am., Inc. v. Cynergy Holdings, LLC, No. 12 Civ. 772(BMC), 2013 WL 9447569 (E.D.N.Y. Sep. 23, 2013)

Dec 01 2013

Key Insight: Where plaintiff did not institute a written litigation hold despite its duty to preserve having arisen when it threatened to sue defendants, and, instead of producing the original of a particular thumb drive as ordered by the court, plaintiff copied contents of original thumb drive onto another (used) thumb drive and then deleted irrelevant files from thumb drive before producing drive to defendant, court found plaintiff was merely negligent and did not act in bad faith or with an intention of destroying or withholding relevant evidence; court declined to impose terminating sanctions or an adverse inference instruction given that defendant did not demonstrate severe prejudice, but ordered plaintiff to reimburse defendant for one-half of its costs, including attorneys? fees and expert costs, that it incurred in connection with litigating the spoliation issue

Nature of Case: Lawsuit arising out of the collapse of a commercial relationship between the parties relating to credit card processing services

Electronic Data Involved: Thumb drive, email, spreadsheets

Avoid “Discovery About Discovery” with Cooperation

Nov 22 2013

Ruiz-Bueno, III v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013)

In this case, Plaintiffs moved to compel answers to their questions about Defendants’ efforts to respond to Plaintiffs’ discovery requests, including what procedures were undertaken to search for responsive electronically stored information. Defendants objected, arguing that such information was not within the scope of discovery. Following its discussion of whether “discovery about discovery [is] ever permissible” (it is), the court turned to the circumstances of this case and ordered Defendants to respond. In its analysis, the court spent significant time extolling the virtues of cooperation.

Criminal Defendant Entitled to Production of Metadata Related to Police Report

Nov 15 2013

United States v. Tutt, No. 13-cr-20396, 2013 WL 5707791 (E.D. Mich. Oct. 21, 2013)

In this case, the court granted in part Defendant’s Motion for Issuance of a Subpoena Duces Tecum seeking production of the arresting officers’ personnel files and disciplinary records as well as the metadata associated with an arresting officer’s police report. Defendant sought to examine the metadata to confirm the alleged time that the report was written in light of the officer’s claim that he overheard the defendant making incriminating statements to the suspect in the adjoining cell while the officer “simultaneously” drafted his report and memorialized those alleged comments. Defendant denied ever making the statements.

Court Orders Imaging to Ensure Preservation of Self-Proclaimed Hacker’s ESI

Nov 07 2013

Battelle Energy Alliance, LLC v. Southfork Sec., Inc., No. 4:13-cv-00442-BLW, 2013 WL 5637747 (D. Idaho Oct. 15, 2013); Battelle Energy Alliance, LLC v. Southfork Sec., Inc., — F. Supp. 2d —, 2013 WL 5818559 (D. Idaho Oct. 29, 2013)

Plaintiff sought an ex parte temporary restraining order requiring Defendants to disable their website and remove information related to allegedly infringing software and also sought to create a forensic image of one defendant’s hard drive(s) to ensure preservation. The court granted Plaintiff’s application, relying in part on Defendants’ self-identification as hackers. Upon learning the at-issue source code had already been released, however, the court denied Plaintiff’s motion for a preliminary injunction and partially dissolved the TRO, but continued to retain images of the hard drives.

No Sanctions for Spoliation of Emails in Former Officers’ Personal Accounts Absent Evidence of Bad Faith or Prejudice

Oct 31 2013

Puerto Rico Tel. Co., Inc. v. San Juan Cable, LLC, No. 11-2135 (GAG/BJM), 2013 WL 5533711 (D.P.R. Oct. 7, 2013)

Plaintiff alleged that the defendant failed to preserve relevant emails from the personal accounts of three former officers (the CEO, General Manager, and Senior Vice President) and sought an adverse inference instruction. While the court agreed that Defendant’s failure to locate certain emails was a breach of the duty to preserve and constituted spoliation, no sanctions were imposed absent evidence of bad faith or a demonstration of prejudice.

Court Concludes that “at least in the Seventh Circuit,” the Duty to Preserve is Triggered “when a litigant knew or should have known that litigation was imminent” as Opposed to “Reasonably Foreseeable”

Oct 18 2013

In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2013 WL 5377164 (S.D. Ill. Sept. 25, 2013)

In this case, the court found that the duty to preserve arose after the at-issue information was destroyed in accordance with Defendant’s document retention policies and that an adverse inference was not warranted. Considering the proper standard to employ when assessing when the duty to preserve is triggered, the court concluded that “the duty to preserve is triggered only when a litigant knew or should have known that litigation was imminent (at least in the Seventh Circuit).”

E.D. Michigan Approves Model Order Relating to the Discovery of Electronically Stored Information & a Meet and Confer Checklist for Pilot Use

Sep 27 2013

The judges of the United States District Court for the Eastern District of Michigan have announced the approval, “on a pilot period basis,” of a Model Order Relating to the Discovery of Electronically Stored Information and a Rule 26(f) meet and confer checklist. “It is within the judicial officer’s discretion whether these materials may be used.”

The Model Order sets forth a series of principles which address a myriad of issues including cooperation, proportionality, the duty to meet and confer, preservation, the identification of electronically stored information (ESI) and format of production, among others. The checklist sets forth a series of potential topics to be discussed at the parties’ meet and confer.

Court Declines to Compel Response to “Ultra-Broad” Request for Passwords and User Names or Allow “Exhaustive Forensic Examination” of Computers

Sep 20 2013

NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515, 2013 WL 3974535 (E.D. La. Aug. 2, 2013)

In this trademark infringement case, Defendant sought to compel Plaintiff and its principal (a third-party defendant) to produce “passwords and user names to all online web sites related to the issues in this litigation” and to compel Plaintiff and its principal to “submit their computers to an exhaustive forensic examination.” Because the request for passwords and user names was “ultra-broad” and would allow Defendant to “roam freely through all manner of personal and financial data” and because Defendant “failed sufficiently to justify the broad forensic computer examination it request[ed],” the court denied the motion.

Magistrate Judge Declines to Presume Prejudice, Recommends Denial of Motion for Sanctions

Sep 13 2013

Herrmann v. Rain Link, Inc., No. 11-1123-RDR, 2013 WL 4028759 (D. Kan. Aug. 7, 2013)

Plaintiff sought sanctions for Defendants’ allegedly intentional spoliation of evidence and argued that prejudice could be presumed. The Magistrate Judge declined to do so and also found that Defendants’ spoliation was merely negligent. Thus, absent a showing of actual prejudice, the Magistrate Judge recommended that Plaintiff’s motion be denied.

Catagory:Case Summaries