Case Summaries – Page 84 – Electronic Discovery Law

Hallmark v. Cohen & Slamowitz, LLP, NO. 11-CV-842W(F), 2016 WL 1128494 (W.D.N.Y. Mar. 23, 2016)

Dec 01 2016

Key Insight: Court denied Defendant?s motion for protective order shifting the costs of producing inaccessible data as part of agreed upon sample set where Defendant failed to adequately establish the justification for cost-shifting by submitting broadly stated affidavit that provided no explanation re: source of affiant?s knowledge of his assertions or any explanation of what the term ?inaccessible? was meant to apply to (e.g., digitized records v. hard copy) and where affiant offered no justification for estimates re: required man hour or hourly rates; court indicated that even if Defendant had established its burden, application of the Zubulake factors re: cost-shifting favored Plaintiff

Nature of Case: FCDPA

Konica Minolta Bus. Sols., U.S.A., Inc. v. Lowery Corp., No. 15-cv-11253, 2016 WL 4537847 (Aug. 31, 2016)

Dec 01 2016

Key Insight: Assessing motion for sanctions, court found that Plaintiff established Defendants? duty to preserve (preservation requests were sent to all defendants) and that ESI was lost but found that further discovery was needed to address whether two of four ?predicate elements? of Rule 37(e) were met, namely whether reasonable steps were taken to preserve and whether the lost ESI could be restored or replaced through additional discovery, reasoning that ?[a]bsent sufficient proof that reasonable steps were not taken, KMBS is not entitled to relief under 37(e), even if it is shown that the ESI was lost. Sanctions are not automatic? and that ?[f]urther, a party cannot be sanctioned where the ability exists to restore or replace the ESI from other sources.?

Electronic Data Involved: ESI

Mathur v. Hospitality Props. Trust, No. 13-cv-7206, 2016 WL 520999 (N.D. Ill. Feb. 10, 2016)

Dec 01 2016

Key Insight: Addressing Plaintiff?s claim that defendant?s duty to preserve surveillance footage was triggered by the fact that it knew Defendant was robbed in its hotel, that the police were involved, and that both the police and Defendants ?were using the footage to investigate the incident? (perhaps evidenced by the preservation of different footage at the request of police), the court reasoned that ??mere knowledge of the accident and the possible causes of the accident? is not enough to create a duty to preserve evidence? and found that defendant?s spoliation claim failed

Nature of Case: Claims arising from robbery of hotel guest

Electronic Data Involved: Surveillance footage

Thomas v. Butkiewicus, No. 3:13-CV-747 (JCH), 2016 WL 1718368 (D. Conn. Apr. 29, 2016)

Dec 01 2016

Key Insight: Addressing question of spoliation related to surveillance video of prison assaults, court concluded that ?traditional? spoliation analysis (as opposed to analysis pursuant to newly amended FRCP 37(e))

Nature of Case: Claims arising from assault in prison

Electronic Data Involved: Surveillance video

In re Advanced Power Sols., Inc., —S.W.3d—, 2016 WL 3438249 (Tx. Ct. App. June 21, 2016)

Dec 01 2016

Key Insight: Where trial court granted a motion for spoliation sanctions and struck all of Defendant?s pleadings and ordered an adverse inference instruction, court of appeals took up the petition for a writ of mandamus and, addressing the standards for spoliation sanctions in detail, upheld the trial court?s finding that a duty to preserve the at-issue video showing the circumstances surrounding the underlying industrial accident arose from the date of the incident in light of the facts and circumstances of the case and that Defendant breached that duty to preserve through ?willful blindness? by failing to prevent the automatic overwriting of the video despite viewing the video, allowing Plaintiff to view the video while in the hospital, and relying on the video to reconstruct the accident and conduct ?experiments?; regarding the sanctions imposed, the appellate court concluded that the adverse inference was appropriate because of the direct relationship between the loss and the instruction and where the instruction was not excessive in light of the unique nature of the evidence; court granted petition, however, as to order to strike pleadings

Nature of Case: Industrial accident resulting in injuries

Electronic Data Involved: Video of underlying accident

Terral v. Ducote, No. 15-2366, 2016 WL 5017328 (W.D. La. Sept. 19, 2016)

Dec 01 2016

Key Insight: Where pro se prisoner sought production of video footage of the alleged use of excessive force but failed to request the video or file a grievance for 30 days and the tape was recorded over, the court found that Plaintiff had failed to demonstrate that Defendant had not taken reasonable steps to preserve the footage or that Defendant acted with the intent to deprive and denied the motion for sanctions

Nature of Case: Pro se prisoner defendant, excessive force

Electronic Data Involved: Video footage

Boyington v Percheron Field Servs., LLC, No. 3:14-CV-90, 2016 WL 6068813 (W.D. Pa. Oct. 14, 2016)

Dec 01 2016

Key Insight: Plaintiffs sought to compel production of all emails sent to or from any of the Plaintiffs through a Percheron account. The Court found the emails were relevant because they may shed light on informal work policies, hours worked, and serve as a potential cross-reference to the other records kept by Defendant. Analyzing proportionality, the Court concluded that the importance of the issues (to the Plaintiffs), the amount in controversy (alleged to be ?in excess of several million dollars?), the resources of the parties, the parties? relative access to the information and the importance of the discovery in resolving the issues weighed in favor of Plaintiffs/production. Regarding whether the burden of discovery outweighed the benefit, the Court acknowledged Defendant?s claim that the review ?would likely cost $735,000-$798,964 and take a team of 20 attorneys 12 weeks to complete,? but reasoned that the Court?s refusal to compel production of certain email categories would lessen the estimated costs and that Defendant?s inability to provide certain data had caused Plaintiffs to have to ?puzzle together damages? and concluded that the request did not ?run afoul? of proportionality. The court also relied on Defendants prior agreement to produce the emails. Addressing Plaintiffs? motion to compel information regarding Defendant?s preservation efforts, the court ordered production of the names of those that received litigation holds and related information, but declined to order the litigation holds themselves.

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: Emails, Information re: litigation hold notices

Garcia v. City of Farmington, No. Civ. 12-383 JCH/SCY, 2016 WL 7438045 (D. N.M. Jul. 5, 2016)

Dec 01 2016

Key Insight: Plaintiff created audio recordings during her employment with Defendant, transcribing some of them and later deleting recordings she felt to be insignificant. Plaintiff also claimed her computer ?crashed? in 2011 or 2012 and that caused her to lose material (this issue not raised at previous deposition). After the close of trial, Defendant filed a Renewed Motion for Adverse Spoliation Inference and to Strike Testimony. The court found Plaintiff had a duty to preserve because she made the recordings after she filed a grievance and EEOC charge. Plaintiff admitted that the deleted recordings did not ?capture unfair and discriminatory treatment of her,? which the court found to ?cure any prejudice Defendant may have suffered.? The court found that Plaintiff?s actions ?were intentional and more than merely negligent, but she did not act with a sinister intent,? and that Plaintiff did not understand she needed to preserve all the recordings. The court will consider Defendant?s evidence of Plaintiffs spoliation when it weighs the evidence presented at trial, but otherwise denied Defendant?s request to impose sanctions.

Nature of Case: Renewed Motion for Adverse Spoliation Inference and to Strike Testimony, on underlying case of discrimination and retaliation

Electronic Data Involved: Audio recordings

Lab. Skin Care Inc. v. Ltd. Brands Inc., No. 06?601?LPS, 2016 WL 1266564 (D. Del. Mar. 20, 2016)

Dec 01 2016

Key Insight: Defendants sought to recover costs incurred to scan and convert paper documents into electronic format, Bates stamp and print the documents they produced; as well as costs for taking corporate representative depositions. Plaintiffs objected ?on the basis that more than two-thirds of the production costs?are the costs of making electronic copies and extra paper copies of documents for [Defendants?] own use.? The court found Defendants costs were incurred in order to comply with the production of ESI, and that costs for Bates stamping was ?reasonable and necessary? – as Defendants pointed out ?producing 125,517 pages?without a single identifying number would render such production entirely useless.? Also, Defendants provided sufficient supporting evidence for the costs incurred in making copies of the produced documents. The court granted Defendants? request for costs. Plaintiffs argued the Clerk of Court?s finding that Defendants failed to meet the requirements of Local Rule 54.1(b)(3) regarding deposition costs was correct. This court indicated 28 U.S.C. ? 1920 provides the ?outer bounds? of a courts? discretion in awarding costs, citing the Third Circuit ?deposition expenses, including the costs of deposition transcripts, may be awarded as costs to the prevailing party if the court determines, at the end of the litigation, that the copies were of papers necessary for use in the case.? Finding Defendants? deposition and transcripts were ?at least ?reasonably necessary? as part of their efforts to effectively litigate this patent case,? the court granted Defendant?s request.

Nature of Case: Taxable costs

Electronic Data Involved: ESI

In re Fluoroquinolone Prods. Liab. Litig., MDL. No. 15-2642 (JRT), 2016 WL 4045414 (D. Minn. July 20, 2016)

Dec 01 2016

Key Insight: Court ruled that defendants may, under the proportionality factors in 26(b)(1), limit their search to databases and central repositories rather than engage in custodial searches for all cases at the Defendant Fact Sheet (DFS) stage of the MDL due to the ?significant burden of the proposed custodial-file searches? and the less-than-certain benefits of such searches.? The Court noted Defendant?s acknowledgement that custodial searches would likely be ?warranted for a narrower group of cases at a later stage? and that plaintiffs were free to seek permission to engage in further discovery if information available in the structured databases was insufficient.

Nature of Case: Products Liability

Electronic Data Involved: ESI

Catagory:Case Summaries