Case Summaries – Page 178 – Electronic Discovery Law

Brigham Young Univ. v. Pfizer, Inc., No. 2:06-cv-890 TS, 2012 WL 1302288 (D. Utah Apr. 16, 2012)

Dec 01 2012

Key Insight: Denying plaintiffs? motion for sanctions the court distinguished the cases of Lee v. Max Int., LLC, 638 F.3d 1318 (10th Cir. 2011) and Phillip M. Adams & Assoc., LLC v. Dell, Inc., 621 F. Supp. 2d 1173 (D. Utah 2009), found the defendant had not acted in bad faith, and rejected plaintiffs assertions that the duty to preserve arose from obligations to maintain information pursuant to corporate policy or an obligation to the government; noting that most relevant documents were from the 1990?s, the court also acknowledged that even where a preservation obligation exists, the passage of time can result in the inadvertent destruction or misplacement of evidence and the fading of human memories

Electronic Data Involved: Unspecified in opinion

Domanus v. Lewicki, No. 08 C 4922, 2012 WL 3307364 (N.D. Ill. Aug. 13, 2012)

Dec 01 2012

Key Insight: Where defendant?s breached their duty to preserve by discarding a hard drive belonging to defendant in the midst of discovery and where their ?story? of what happened to the drive (including claims that it was taken to the Apple Store for repairs) did not ?add up?, the district court found the magistrate judge?s failure to find that defendant?s acted in bad faith ?clearly erroneous? and that a finding of bad faith would allow prejudice to be presumed such that allowing but not requiring the jury draw a negative inference was ?insufficient;? as a sanction, the district court ordered that defendants obtain all relevant emails from their email service providers and precluded defendants from using as evidence any of the documents culled from the drive ?before they destroyed it?

Electronic Data Involved: Hard drive

Twitty v. Salius, No. 11-448, 2012 WL 147913 (2d Cir. Jan. 19, 2012)

Dec 01 2012

Key Insight: Appellate court found that District Court did not abuse its discretion in declining to impose an adverse inference instruction for the destruction of an original surveillance tape where the destruction was negligent and where, because of the existence of copies of the tape (albeit with slight differences in tracking, color, and audio quality), the destruction did not materially prejudice plaintiff?s case

Nature of Case: Civil rights action

Electronic Data Involved: VHS surveillance tape

Wynmoor Cmty. Council, Inc. v. QBE Ins. Co., —F.R.D.—, 2012 WL 716480 (S.D. Fla. Mar. 5, 2012)

Dec 01 2012

Key Insight: Court granted motion to allow forensic imaging of plaintiff?s computers for purposes of discovery where plaintiff?s production of ESI was very small, where plaintiff?s CIO admitted he had taken no efforts to retrieve any ESI, and where it was established that ESI may be present on plaintiff?s computers?possibly including electronic copies of hard copy documents which may have been shredded; court?s order called for court-appointed forensic expert to conduct examination and established other protocols to be followed

Nature of Case: Breach of insurance contract

Electronic Data Involved: ESI

Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., No. 05-CV-6734T, 2012 WL 1067664 (W.D.N.Y. Mar. 22, 2012)

Dec 01 2012

Key Insight: Where court found no evidence that defendant had instituted any litigation hold or any evidence surrounding its collection efforts and where defendant failed to preserve potentially relevant hard drives despite the knowledge that the emails potentially contained thereon could not be retrieved from the company?s backup tapes, the court found that defendant had acted with gross negligence and imposed monetary sanctions but declined to impose more severe sanctions where there was no evidence of ?bad faith or egregious gross negligence? or that plaintiff had been prejudiced by the loss

Nature of Case: Breach of contract and various tort claims

Electronic Data Involved: ESI, hard drives

In the Matter of OSF Healthcare Sys., No. 9349, 2012 WL 1561035 (Mar. 27, 2012)

Dec 01 2012

Key Insight: Addressing when litigation was reasonably anticipated by Complaint Counsel (responsible for issuing the relevant Civil Investigative Demand), the court reasoned that anticipation of litigation was not triggered upon issuance of a ?second request? in connection with an ongoing investigation where the results of such investigations must first be analyzed to determine if an enforcement action is warranted and where the majority of investigations do not result in litigation; court denied respondent?s Motion to Compel

Nature of Case: FTC Civil Investigation

Electronic Data Involved: Relevant “communications”

United States v. Comty. Health Ctr. Of Buffalo, No. 05-CV-237A(F), 2012 WL 3136485 (W.D.N.Y. Aug. 1, 2012)

Dec 01 2012

Key Insight: Where plaintiff was able to recover potentially relevant ESI on defendants? backup tapes which had been produced to plaintiff without restriction following defendants erroneous determination that no responsive documents were contained thereon (as the result of using insufficient software to read the data) and where plaintiff therefore sought unrestricted access to the information, except for privileged documents, and for defendants to pay plaintiff?s cost to review the information, the court determined that defendants? production of the tapes waived their objections to Plaintiff?s efforts to locate responsive information but that the failure to identify potentially responsive documents was not in bad faith and that the information on the tapes was not reasonably accessible and denied Plaintiffs? motion for reimbursement for the cost of reviewing the tapes

Nature of Case: False Claims Act

Electronic Data Involved: ESI on “back-up magnetic tapes”

Barnes v. District of Columbia, —F. Supp. 2d —, 2012 WL 4101943 (D.D.C. Sept. 19, 2012)

Dec 01 2012

Key Insight: Where plaintiffs discovered, late in the discovery time period, that defendant?s database production was incomplete but defendant claimed plaintiffs were merely using the wrong query?a query that defendant had not yet produced?the court ordered that defendant produce the relevant query and left open plaintiffs? option to re-file its motion to compel production of additional data if, upon conducting its analysis with the proper query, it nonetheless determined (and could successfully show) that relevant data was missing

Nature of Case: Civil rights claims related to overdetention and strip searching of inmates

Electronic Data Involved: Database content, relevant database query

Coral Group Inc. v. Shell Oil Co., No. 4:05-CV-0633-DGK, 2012 WL 4569468 (W.D. Mo. Sept. 30, 2012)

Dec 01 2012

Key Insight: For intentional spoliation resulting in irreparable prejudice, including a ?discernible pattern? of efforts to deprive Plaintiffs of relevant financial information contained on the computer of Plaintiff?s outside accountant and the failure to preserve other data, the court ordered that plaintiff?s claims were dismissed with prejudice

Nature of Case: Fraud, breach of contract

Electronic Data Involved: ESI

U.S. ex rel Baklid-Kunz v. Halifax Hosp. Med. Ctr., No. 6:09-cv-1002-Orl-31TBS, 2012 WL 5415108 (M.D. Fla. Nov. 6, 2012)

Dec 01 2012

Key Insight: Addressing the proper logging of privileged emails, the court adopted the position ?for which there is overwhelming support? (as cited in the opinion) ?that each email in an email string must be listed separately so that the court (and the opposing party) may make an attorney-client privilege determination with regard to each email in the string.?

Nature of Case: violations of False Claims Act

Electronic Data Involved: Emails

Catagory:Case Summaries