Case Summaries – Page 59 – Electronic Discovery Law

Rockman Co. (USA), Inc. v. Nong Shim Co., Ltd., No. 13-cv-04115-WHO, 2017 WL 275405 (N.D. Cal. Jan. 19, 2017)

Dec 01 2017

Key Insight: In US litigation, court found no duty to preserve was triggered by Korean Fair Trade Commission?s investigation of price-fixing in Korean markets absent case law establishing such a possibility (i.e., that a foreign investigation of domestic markets could trigger a duty to preserve in the US because litigation could someday be commenced) or any related complaints or lawsuits filed in the US or evidence that the price fixing conspiracy was directed at the US or that the KFTC?s investigation extended to impacts in the United States

Nature of Case: Antitrust

Electronic Data Involved: ESI

Agility Pub. Warehousing Co. v. Dep?t of Defense, 14-1064 (JDB), 2017 WL 1214424 (D.D.C. Mar. 30, 2017)

Dec 01 2017

Key Insight: Where Plaintiff sought sanctions for a government agency?s failure to preserve and produce emails in response to a Touhy request (an APA action was eventually filed), court denied Plaintiff?s request to depose the Agency?s attorneys as a way to ?replace? the lost information (thus, according to Plaintiff, avoiding further analysis under Rule 37(e)), reasoning that the rule?s Committee Notes appeared to ?contemplate that the ?replacement? of lost information would come from another electronic source,? and declined to impose the requested sanction under any authority (either Rule 37(e) or the court?s inherent authority) where Plaintiff?s requested sanction was not appropriately targeted to the harm claimed and where no prejudice was established

Nature of Case: APA Action related to Touhy request

Electronic Data Involved: Email

Brown v. Ferguson, No. 4:15CV00831 ERW, 2017 WL 386544 (E.D. Mo. Jan. 27, 2017)

Dec 01 2017

Key Insight: Court clarified discoverability of relevant social media content but indicated that disclosure of passwords was not required and not permitted by the Federal Rules of Civil Procedure

Electronic Data Involved: Social Media/social network (Facebook, etc.)

View Case Opinion

Barcroft Media, Ltd. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF) (S.D.N.Y. Sept. 28, 2017)

Dec 01 2017

Key Insight: Spoliation sanctions for failing to preserve the webpages in which the images were published.

Nature of Case: Intellectual Property infringement

Electronic Data Involved: Images, Webpages

View Case Opinion

B&R Supermarket, Inc. v. Visa, Inc., No. 16-cv-01150-WHA (MEJ), 2017 WL 235182 (N.D. Cal. Jan. 19, 2017)

Dec 01 2017

Key Insight: Court found requested data was relevant to class certification but, where Defendant indicated that Plaintiff?s requests ?encompass [ ] tens of millions of transactions and weekly data for each of the more than 6 million merchants that accept American Express? that ?is scattered over at least 6 databases at American Express,? court agreed with Defendant that the requested discovery created an ?enormous burden? and therefore ordered sampling, in a size to be agreed upon by the parties at a court-ordered meet and confer

Nature of Case: class action

Electronic Data Involved: Chargeback-related data (ESI)

Teal v. Jones, No. 2015-CA-00259-COA, 2017 WL 58824 (Miss. Ct. App. Jan. 3, 2017)

Dec 01 2017

Key Insight: Spoliation instructions to jury were erroneous and the case was reversed and remanded for a new trial. No evidence of spoliation was presented at trial and hence spoliation instructions were improper. The Court also went on to discuss the spoliation evidence since it could arise in a new trial. The Court found no spoliation with regard to the deleted emails since Plaintiff?s deletion of emails occurred before she could have anticipated a lawsuit. The Court found that the disposal of Plaintiff?s laptop and sale of her desktop might be spoliation of evidence if there is reason to believe the deleted emails could be recovered from either computer?s hard drive. If Defendant can present evidence that the emails could have been recovered then the court may grant her an instruction on spoliation.

Nature of Case: Alienation of affections

Electronic Data Involved: Emails, hard drives

CP Salmon Corp. v. Pritzker, —F. Supp. 3d.—,No. 3:16-cv-00031-TMB, 2017 WL 744022 (D. Alaska Feb. 24, 2017)

Dec 01 2017

Key Insight: Applying Fed. R. Evid. 502, court found Defendants? inadvertent inclusion of privileged information in the Administrative Record did not waive privilege where declarations of persons with ?sufficient personal knowledge? established the inadvertence of the inclusion where, in light of the multiple levels of review of the documents and the relevant circumstances including the ?sheer number of pages and compressed timeframe,? the court found Defendant had undertaken reasonable steps to prevent disclosure, and where Defendants took action to rectify the error within three weeks of the disclosure

Nature of Case: Administrative law

Electronic Data Involved: Administrative Record

Selective Ins. Co. of the Se. v. RLI Ins. Co., 5:12CV2126, 2017WL 1206036 (N.D. Ohio Mar. 31, 2017)

Dec 01 2017

Key Insight: Court agreed with recommendation of magistrate judge and held costs incurred by a non-party for compliance with an order compelling production are reimbursable. The magistrate judge ordered the Non-Party to submit a cost estimate for reviewing the documents, preparing a privilege log and producing the non-privileged documents. The cost estimate submitted was over $120,000. Defendant then presented a pared down document request and the magistrate judge issued a Modified Subpoena. The Court accepted the magistrate judge?s recommendation and ordered Defendant to pay $14,174.32 for the costs to Non-Party of complying with the Modified Subpoena stating that Defendant ?was the recipient of the fruits of Non-Party[?s] labor.? The Court also agreed with the magistrate judge that non-parties are not protected by the work product doctrine.

Nature of Case: Non-party compensation for document production

Electronic Data Involved: emails and non-electronic documents

Wilson v. Washington, No. C16-5366 BHS, 2017 WL 518615 (W.D. Wash. Feb. 8, 2017)

Dec 01 2017

Key Insight: Addressing Plaintiff?s concerns regarding Defendants production, characterized by the court as ?thousands of pages of unorganized documents,? the court reasoned that ?Rule 33(d) does not supplant a party?s duty to adequately label and identify responsive documents under Rule 34,? that courts have recognized that production of documents as kept in the usual course of business ?may require the producing party to include different identifying information according to the type of document or file produced,? and that ?the most recent? court decisions have held that both Rule 34(b)(2)(E)(i) and (ii) apply to the production of ESI and concluded that Defendant?s response fell short of its duties under 34(b)(2)(E) and 33(d)(1) and stated that ?[s]ome form of further organization or specification is required to signify that they have provided ?rationally organized productions??

Electronic Data Involved: Unorganized ESI

Edelson v Cheung, No. 2:13-cv-5870 (JLL)(JAD), 2017 WL 150241 (D.N.J. Jan. 12, 2017)

Dec 01 2017

Key Insight: Where Plaintiff sought spoliation sanctions for Defendant?s deletion of emails and argued that Defendant intended to keep the at-issue account hidden and deleted emails after it was discovered through another party?s production and that those emails revealed Defendant?s intent to keep the at-issue account hidden and other elements of Plaintiff?s claims, the court found that the deletions were ?intended to deprive Plaintiff of the information? contained within and reasoned that Defendant?s claim that he deleted the emails because of computer performance lacked credibility, but declined to impose default judgment absent a sufficient degree of prejudice and instead ordered that a permissive adverse inference instruction would be given to the jury

Nature of Case: Breach of contract and related claims

Electronic Data Involved: Email

Catagory:Case Summaries