Case Summaries – Page 183 – Electronic Discovery Law

Bull v. United Parcel Service, Inc., 665 F.3d (3d Cir. 2012)

Dec 01 2012

Key Insight: Circuit court found that ?producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information,? but also found that in the present case the District Court abused its discretion ?in ruling that, within its spoliation analysis, Bull intentionally withheld the original documents from UPS? and further abused its discretion when it imposed the sanction of dismissal with prejudice

Nature of Case: Employment litigation

Electronic Data Involved: Copies of hardcopy doctor’s notes

Gonzalez v. Las Vegas Police Dept., No. 2:09-cv-00381-JCM-PAL, 2012 WL 1118949 (D. Nev. Apr. 2, 2012)

Dec 01 2012

Key Insight: Where video surveillance tape was destroyed in contravention of duty to preserve, the court nonetheless denied plaintiff?s motion for sanctions (an adverse inference) where it determined that there was no prejudice to plaintiff because defendants identified the three officers/employees who processed plaintiff on the night of the allegedly wrongful arrest and because defendants conceded that the initial booking processes indicated that plaintiff was not the person sought by the relevant warrant

Nature of Case: Violation of civil rights (wrongful arrest) and related claims

Electronic Data Involved: Video surveillance

Gottlieb v. Iskowitz, 2012 Wl 2337290 (Cal. Ct. App. June 20, 2012)

Dec 01 2012

Key Insight: Appellate court found that trial court did not abuse discretion in imposing terminating sanctions for plaintiff?s egregious and willful discovery violations, including repeated failure to produce responsive materials in violation of the court?s multiple orders and subsequent ?dump? of 15 million pages of uncategorized documents that were not Bates labeled or accompanied by a corresponding index and which appeared to be largely non-responsive based on a review of 10% of the documents (?A dump of disorganized documents by definition is non-compliant.?); trial court?s award of significant damages was reversed and remanded for a new default proveup hearing on damages

Nature of Case: Libel, intentional infliction of emotional distress, and related claims

Electronic Data Involved: ESI

United States v. Jarman, No. 11-31217, 2012 WL 2700403 (5th Cir. July 9, 2012)

Dec 01 2012

Key Insight: Circuit court affirmed district court?s granting of defendant?s motion to compel production of a mirror image of a hard drive containing child pornography evidence where defendant?s expert presented unrebutted evidence that she could not conduct her investigation at a government facility because of ?time limitations and restrictions? and thus the circuit court could not conclude that the district court?s determination of ?no ?amply opportunity?? to investigate was clear error; court clarified, however, that it rejected the notion that inconvenience equated to a failure on the part of the government to make the child pornography evidence reasonably available and clarified that when such evidence is made available for inspection at a government facility, ?that is reasonable availability? such that the only issue to be resolved is whether the conditions imposed do not provide ?ample opportunity? for examination of the material

Nature of Case: child pornography; Adam Walsh Act

Electronic Data Involved: Child pornography evidence on hard drive

Johnson v. Allstate Inc. Co., No. 07-cv-0781-SCW, 2012 WL 4936598 (S.D. Ill. Oct. 16, 2012)

Dec 01 2012

Key Insight: Court addressed question of taxable costs and relied heavily on Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009) and Race Tires Am. Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) and allowed recover as to rendering ESI word searchable, the creation of TIFF images, the creation of hard copies, photocopying, the creation of graphics for use at the hearing, and fees for obtaining transcripts but denied recovery as to the creation of a litigation database, processing of ESI, extraction of metadata, deduplication, electronic data hosting, and ?preparing ESI for production?

Nature of Case: Violations of Consumer Fraud and Deceptive Business Practices Act

Electronic Data Involved: ESI

Fraserside IP LLC v. Gamma Entm?t., —F. Supp. 2d—, 2012 WL 4504818 (N.D. Iowa Sept. 28, 2012)

Dec 01 2012

Key Insight: In dispute over jurisdictional discovery, court concluded that plaintiff was entitled to a ?small slice? of defendant?s Google Analytics data (which tracks and accumulates data related to websites? visitors) related to the number of visitors to defendant?s website(s) from Iowa-based IP addresses; court agreed with plaintiff that it was entitled to ?more? than a hard copy PDF ?screen grab? of the relevant information and indicated that it anticipated production as HTML pages that could be opened with a standard internet browser, but that if that was not an agreeable solution, another hearing would be held

Nature of Case: Copyright infringement and related claims

Electronic Data Involved: Google Analytics

Soto v. Castlerock Farming & Transport, Inc., 282 F.R.D. 492 (E.D. Cal. Apr. 30, 2012)

Dec 01 2012

Key Insight: Where defendant alleged that plaintiffs? requests would result in an undue burden in light of the number of defendant?s employees and the number of farm labor contractors with whom it did business (because of the high volume of records) the court concluded that sampling was ?an appropriate method? to relieve defendant?s burden and, recognizing that even sampling would be burdensome, ordered ?a reduced sample? which would nonetheless ?yield meaningful information? and further ordered defendant to perform a random sample of 50% of payroll and timekeeping records for designated months and years ?unless the parties agree to a different sampling method;? Court denied (in part) third-party?s motion to quash where the information sought was relevant and where the third party presented evidence of burden as to production in hard copy but presented no such evidence as to electronic records which the third party indicated it maintained

Nature of Case: Wage and hours class action

Electronic Data Involved: Payroll and timekeeping records, ESI

Norfolk S. Railway Co. v. Hartry, 316 Ga. App. 532 (Ga. Ct. App. June 29, 2012)

Dec 01 2012

Key Insight: Where relevant data could only be viewed using particular software, a license for which would cost $500, the trial court ordered Norfolk Southern to provide the data to Plaintiff ?in some useable form ? either by obtaining permission from [the owner of the software] to produce the data ?, by providing [Plaintiffs] with a computer with the necessary software? or by any other method the parties agreed to. On appeal, the court found no abuse of discretion, ?especially given the crucial nature of the evidence, the relatively minor cost of the license when compared to the amount at stake in the lawsuit, and the fact that it was Norfolk Sothern?s decision to equip its locomotives? with a recording device from which it could provide data to a third party only upon payment of a licensing fee.

Nature of Case: Personal injury arising from collision between train and tractor trailer

Electronic Data Involved: Event data recorder

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

Catagory:Case Summaries