Case Summaries – Page 59 – Electronic Discovery Law

Brand Servs., LLC v. Irex Corp., NO: 15-5712, 2017 WL 67517 (E.D. La. Jan. 5, 2017)

Dec 01 2017

Key Insight: Plaintiff filed motion to compel the production of all computers or a forensic image of such computers of three former employees currently employed by Defendant. Plaintiff accused one employee, an informational technology specialist, of transferring files containing trade secrets and proprietary information to an external hard drive and later to his laptop furnished by Defendant. Plaintiff also sought the production of a forensic image of Defendant?s server. Defendant argued that direct investigation of these devices was too broad a scope and should be limited by an ?electronically stored information protocol.? The Court agreed that Plaintiff?s request was overly broad and disproportional and ordered both parties to submit a draft ESI protocol using key word searches so as to control costs and to keep discovery proportional to the needs of the case.

Nature of Case: Violation of non-compete agreement, Uniform Trade Secrets Act

Electronic Data Involved: ESI

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Air Prods. & Chems., Inc v. Wiesemann, No. 14-1425-SLR, 2017 WL 758417 (D. Del. Feb. 2, 2017)

Dec 01 2017

Key Insight: Court denied motion for spoliation sanctions where Defendants ?failed to clear the threshold issue of showing that relevant evidence was lost or destroyed? or, in the case of the alleged spoliation of ESI of one former employee, where defendants failed to show that the emails could not be replaced through additional discovery in light of the production of some of the employee?s emails from other computers

Electronic Data Involved: ESI

Blasi v. United Debt Servs. LLC, No. 2:14-cv-83, 2017 WL 2255525 (S.D. Ohio May 23, 2017)

Dec 01 2017

Key Insight: For a defendant?s spoliation and failure to participate in litigation, the court struck the defendant?s motion to dismiss for lack of personal jurisdiction and eventually also awarded default judgment and attorneys fees to the plaintiff; addressing whether to also sanction Defendant?s counsel for failing to prevent the spoliation, the court reasoned that ?it seems obvious that the party requesting sanctions has at least an initial burden of proof with respect to not only whether sanctionable conduct has occurred, but also with respect to whether the misbehaving party?s attorney may have been involved? and found Plaintiff?s assertions and evidence of such involvement ?too thin?

Electronic Data Involved: ESI

Organik Kimya, San. ve. Tic. A.S. v. Int?l Trad Comm?n, 848 F.3d 994 (Fed. Cir. 2017)

Dec 01 2017

Key Insight: Court affirmed the sanction of default judgment imposed in 2014 by the International Trade Commission for Appellant?s egregious spoliation of evidence in bad faith and in violation of the Administrative Law Judge?s orders (including, among other things, repeatedly overwriting files, backdating a computer?s internal clock to affect metadata, running CCleaner)

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Andrews v. Autoliv Japan, Ltd., 1:14-cv-3432-WSD, 2017 WL 2805868 (N.D. Ga. June 29, 2017)

Dec 01 2017

Key Insight: Court denied Defendant?s request for e-discovery costs. Defendant?s vendor provided services to create optical character recognition (?OCR?) image and text files for Defendant?s productions. The Court concluded that the costs of creating electronic copies of documents are recoverable but the costs of creating a dynamic, indexed and searchable database that allows counsel to search for and within the documents are not recoverable. The Court denied Defendant?s recovery of costs for the technical services provided by their e-discovery vendor.

Nature of Case: Taxable costs

Electronic Data Involved: ESI

Realpage, Inc., v. Enter. Risk Control, LLC, No. 4:16-CV-00737, 2017 WL 1180420 (E.D. Tex. Mar. 30, 2017)

Dec 01 2017

Key Insight: The Court granted Plaintiffs? Motion to Compel Production of Defendants? computer images. Defendants made their source code available to Plaintiffs who then identified comments made prior to the produced source code date. Defendants insisted the pre-July 2013 source code was destroyed when Plaintiffs? former employee became a full-time employee of Defendants. The Court found that Defendants provided a sufficient explanation of good faith destruction of pre-July 2013 code but that limited forensic imaging could recover important deleted materials. The Court held that a tailored examination by a third-party forensic expert of Defendants? computers is appropriate to determine whether the pre-July code is recoverable or to assist in cross-examination as to its destruction.

Electronic Data Involved: Mirror image

Basra v. Ecklund Logistics, Inc., 8:16CV83, 2017 WL 1207482 (D. Neb., March 31, 2017)

Dec 01 2017

Key Insight: Plaintiff?s spouse was killed in a tractor-trailer accident when he collided with another tractor-trailer driven by Defendant?s employee. Plaintiff claimed Defendant destroyed or failed to preserve relevant documents in anticipation of litigation and requested sanctions in the form of an adverse inference instruction to the jury. The Court found Plaintiffs did not establish Defendant intentionally destroyed evidence with a desire to suppress the truth. Some of the information did not exist, some was purged per standard practice and much of the material requested by Plaintiffs was provided to them from other sources. The Court denied Plaintiff?s motion with respect to its claim for spoliation. Plaintiffs also requested attorney?s fees and costs as a sanction for Defendant?s failure to produce certain documents. Defendants inadvertently omitted its 2012 income statement but produced those from four other years. The Court held that sanctions were not warranted.

Nature of Case: Tort (Tractor-trailer accident)

Electronic Data Involved: ESI including Driver logs, Qualcomm data, PeopleNet server data

TLS Mgmt. & Mktg. Servs. LLC v Rodriguez-Toledo, No. 15-2121 (BJM), 2017 WL 1155743 (D.P.R. Mar. 27, 2017)

Dec 01 2017

Key Insight: For an individual defendant?s admitted disposal of his laptop and deletion of the contents of his external drive after transferring the contents to a thumb drive despite Plaintiff?s request to preserve and pending litigation, the court reasoned that Plaintiff ?plausibly suggests? that the laptop and hard drive ?might have? contained relevant ESI based on Defendant?s admitted accessing and copying of confidential files and imposed sanctions, including an adverse inference and an order for Defendants to permit and pay for examination of the at-issue external drive, but the court declined to impose sanctions for the individual defendant?s loss of his cellphone ?based on the current state of the evidentiary record? where Plaintiff failed to proffer evidence sufficient to suggest that the loss was not inadvertent or to clarify the approximate time of the loss

Electronic Data Involved: Laptop, ESI, cellular phone

Rutledge-Plummer v. SCO Family of Servs., No. 15-CV-2468 (MKB) (SMG), 2017 WL 570765 (E.D. N.Y. Feb. 13, 2017)

Dec 01 2017

Key Insight: Plaintiff also sought production of all emails between 8 named individuals dating from August 1, 2013 to the present (December 2016). The court found the scope of this request (lacking any search terms or subject matter restrictions) was too burdensome when weighed against the potential benefit of production. Plaintiff narrowed her request to docs that related to her and limited the date range during oral argument, however the court found that this was still too broad and too close to the close of discovery to be permitted. Furthermore, Defendant had already produced emails relating to Plaintiff from most of the 8 custodians and had written to Plaintiff suggesting she propose search terms if she sought additional discovery. Plaintiff?s counsel, whose representation started after Defendant?s letter to Plaintiff, did not review Defendant?s earlier discovery responses and waited 10 months before requesting the additional discovery (using the overbroad parameters). The court denied Plaintiffs request except for certain documents referenced in depositions that were not produced. The court also denied Plaintiffs overly broad request for ?all documents pertaining to policies, procedures, and guidelines related to Defendant?s computers, computer systems, electronic data and electronic media? as too burdensome.

Nature of Case: Motion to Compel in employment discrimination action

Electronic Data Involved: ESI

Camicia v. Cooley, No. 74048-2-I, 2017 WL 679988 (Wash. Ct. App. Feb. 21, 2017)

Dec 01 2017

Key Insight: Where Defendant destroyed potentially relevant tort-claim records pursuant to its record retention schedule during pending litigation among other discovery abuses and where the trial court therefore ordered monetary sanctions for the discovery violations and indicated that it would consider a spoliation instruction, the appellate court concluded that the trial court?s record did not support a finding that ?the City destroyed the evidence in bad faith, knew that the evidence was important to the pending litigation, or had the duty to preserve the evidence? and thus, it was not clear that spoliation had occurred; error was harmless where $10,000 fine was not based on a finding of spoliation

Nature of Case: Tort (bicycling accident)

Catagory:Case Summaries