Category: Case Summaries

1
“A litigant cannot keep its own system secret and then refuse to gather the information itself.”
2
Contents of Personal Computers and Email Accounts Within Scope of Discovery, Search Ordered by Court
3
Court Orders Native Production Absent Explanation of Allegedly Burdensome Cost and Upon Showing of Good Cause
4
“Just as a plaintiff may not take discovery regarding unpled claims, so a defendant is precluded from seeking discovery concerning unpled defenses.”
5
Plaintiff’s “Lackadaisical attitude towards document preservation” Results in Prejudice to Defendant, Sanctions
6
Citing Restoration and Production of Deleted Emails, Court Denies Sanctions
7
Court Orders Production of “Download Your Info” Report from Facebook
8
Deflategate Reinflated: Second Circuit Reinstates Brady Suspension for Participating in Deflation Scheme and Obstructing Investigation
9
Finding Application of Recently-Amended Rule 37(e) “Neither Unjust Nor Impractical,” Court Imposes Adverse Inference
10
Relevance “Not Good Enough” Says Court Granting Motion for Protective Order

“A litigant cannot keep its own system secret and then refuse to gather the information itself.”

Labrier v. State Farm Fire & Cas. Co., No. 2:15-cv-04093-NKL, 2016 WL 2689513 (W.D. Mo. May 9, 2016)

Upon Defendant’s refusal to provide Plaintiff with a list of data fields from two proprietary databases or to allow remote access, the Special Master ordered Defendant to respond to written interrogatories meant to provide the information sought by Plaintiff regarding putative class members and damages.  Addressing Defendant’s objection that the discovery (i.e., responding to written interrogatories) was not proportional to the case, the District Court determined that the Special Master had not abused his discretion, reasoning in part that “[a] litigant cannot keep its own system secret and then refuse to gather the information itself.”

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Contents of Personal Computers and Email Accounts Within Scope of Discovery, Search Ordered by Court

Sunderland v. Suffolk Cty., No. CV 13-4838 (JFB)(AKT), 2016 WL 3264169 (E.D.N.Y. June 14, 2016)

In this civil rights action, the parties agreed upon search terms to identify responsive material but did not agree regarding the propriety of searching the Individual Defendants’ personal computers and email accounts. Concluding that responsive information located in the Individual Defendants’ personal repositories was within the scope of discovery, the court granted Plaintiff’s motion to compel the requested searches.

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Court Orders Native Production Absent Explanation of Allegedly Burdensome Cost and Upon Showing of Good Cause

Mitchell v. Reliable Sec., LLC, No. 1:15-cv-03814-AJB, 2016 WL 3093040 (N.D. Ga. May 23, 2016)

Addressing the parties’ dispute over the proper format of production—specifically, whether ESI should be produced in native format or PDF—the Court found Defendant failed to make an adequate showing that production of native files was cost prohibitive and that, in any event, Plaintiff had shown good cause, and ordered production of ESI in native format.

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“Just as a plaintiff may not take discovery regarding unpled claims, so a defendant is precluded from seeking discovery concerning unpled defenses.”

Lifeguard Licensing Corp. v. Kozak, No. 15 Civ. 8459 (LGS)(JCF), 2016 WL 3144049 (S.D.N.Y. May 23, 2016)

In this intellectual property dispute, the court denied Defendants’ motion to compel Plaintiffs’ production of “discoverable information relevant to the defendants’ likely defenses and counterclaims” citing Defendants’ decision to move for dismissal without filing an answer to the Complaint and reasoning, among other things, that the “plain language” of Fed. R. Civ. P. 26(b)(1)—recently amended “so that discovery now extends only as far as information relevant to claims or defenses”—“does not provide for discovery of ‘likely,’ ‘anticipated,’ or ‘potential’ claims or defenses.”

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Plaintiff’s “Lackadaisical attitude towards document preservation” Results in Prejudice to Defendant, Sanctions

Mathew Enter., Inc. v. Chrysler Grp. LLC, No. 13-cv-04236-BLF, 2016 WL 2957133 (N.D. Cal. May 23, 2016)

The rules governing parties’ duties to preserve data do not demand perfection. Only when a party should have preserved electronically stored information “in the anticipation or conduct of litigation” and when that party “failed to take reasonable steps to preserve it” may a court order corrective measures. The standard is an attainable one.

Applying newly-amended Rule 37(e) (which “now provides a genuine safe harbor for those parties that take ‘reasonable steps’ to preserve their [ESI]”) the court concluded that Defendant was prejudiced by Plaintiff’s failure to preserve customer communications and imposed curative measures.

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Citing Restoration and Production of Deleted Emails, Court Denies Sanctions

FiTeq Inc. v. Venture Corp., No. 13-cv-01946-BLF, 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016)

In this case, the court denied Plaintiff’s motion to “instruct jurors that they may presume Venture carried out or allowed the destruction of relevant evidence favorable to FiTeq” despite an executive’s deletion of potentially relevant emails where the messages were eventually recovered and produced and where Plaintiff failed to prove that other responsive documents existed or to establish that the ESI was not restored or replaced.

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Court Orders Production of “Download Your Info” Report from Facebook

Rhone v. Schneider Nat’l Carriers, Inc., No. 4:15-cv-01096-NCC, 2016 WL 1594453 (E.D. Mo. Apr. 21, 2016)

In this personal injury case, the court ordered Plaintiff to produce a “Download Your Info” report from Facebook, spanning from the date of the at-issue incident (June 2, 2014) through the present.   Per Facebook’s Help Center (last accessed May 10, 2016) a report contains 70 categories of information, including: About Me, Chat (history), Friends, Followers, Logins, Logouts, Messages, Photos, Photos Metadata, Posts by You, Posts by Others, Post to Others, Removed Friends, Searches, Shares, Status Updates, and Videos.

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Deflategate Reinflated: Second Circuit Reinstates Brady Suspension for Participating in Deflation Scheme and Obstructing Investigation

Nat’l Football League Mgmt. Council v. Nat’l Football League Players Assoc., — F.3d —, 2016 WL 1619883 (2d Cir. Apr. 25, 2016)

On April 25, 2016, the Second Circuit reinstated (reinflated?) the four-game suspension previously imposed upon New England Patriots quarterback, Tom Brady, for his participation in what has come to be known as “Deflategate,” including the destruction of his cellular phone and its contents.

Background

On January 18, 2015, it was discovered that the footballs used by the New England Patriots in the AFC Championship Game against the Indianapolis Colts were underinflated, i.e., “inflated below the allowed minimum pressure of 12.5 pounds per square inch.” The initial investigation into the incident conducted by Theodore V. Wells, Jr., Esq.—an attorney retained by the NFL—concluded it was “more probable than not” that Brady was “at least generally aware” of the scheme to deflate footballs and indicated that “the investigation had been impaired” by Brady’s refusal to produce requested information, including text messages and emails.  This “awareness and knowledge of the scheme” and Brady’s “failure to cooperate” were cited by the NFL Executive Vice President in his letter notifying Brady of the suspension.  Brady, through the National Football League Players Association (“the Players Association”), appealed.

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Finding Application of Recently-Amended Rule 37(e) “Neither Unjust Nor Impractical,” Court Imposes Adverse Inference

Brown Jordan Int’l, Inc. v. Carmicle, Nos. 0:14-CV-60629, 0:14-CV-61415, 2016 WL 815827 (S.D. Fla. Mar. 2, 2016)

In this case, the court heard argument regarding Defendant’s alleged spoliation in October, 2015—before amendments to the Rules of Civil Procedure went into effect—and deferred ruling on the motion until the end of trial.  The amendments became effective “shortly after trial concluded.”  Upon determining that “applying the new version of Rule 37(e) would be neither unjust nor impractical,” the court found that Defendant failed to take reasonable steps to preserve the information at-issue, despite a duty to do so; that the lost information could not be restored or replaced through additional discovery; and that Defendant acted with the intent to deprive Plaintiffs of the information’s use in the litigation.  Accordingly, the court presumed that the lost information was unfavorable to the defendant.  The court also noted that the sanction would be appropriate under prior standards, specifically pursuant to the court’s inherent authority to sanction a party’s bad faith litigation conduct.

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Relevance “Not Good Enough” Says Court Granting Motion for Protective Order

Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., No. 1:14-cv-01734-WTL-DML, 2016 WL 1162553 (S.D. Ind. Mar. 24, 2016)

In this case, the court granted Plaintiff’s motion for a protective order and ordered that Defendant was prohibited from obtaining the discovery sought from Plaintiff’s shareholder by the at-issue subpoenas. In reaching its conclusion, the court undertook analysis of recently-amended Fed. R. Civ. P. 26(b)(1), highlighting the principle of proportionality, and ultimately concluded that Defendant’s subpoenas constituted “discovery run amok” and “fail[ed] the proportionality test under Rule 26(b).”

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