Case Summaries – Page 84 – Electronic Discovery Law

Muhammad v. Mathena, No. 7:14cv00529, 2016 WL 8116155 (W.D. Va. Dec. 12, 2016)

Dec 01 2016

Key Insight: Prison employees? failure to preserve surveillance footage of inmate altercation despite notice of the obligation to do so was negligent; negligence imputed to other employees named as Defendants in Eighth Amendment claim where, despite the lack of a conventional agency relationship, the negligent/spoliating non-parties were not merely ?disinterested third parties? but rather were employees of the institution(s) responsible for preserving evidence in prisoner litigation and where requiring a conventional agency relationship would ?present a dilemma in the context of prison litigation .. where responsibility for preserving evidence may be spread out among multiple officials within an institute and where the institutions themselves are typically immune from suit?; as sanction, court forbade Defendants from putting on evidence related to Plaintiff?s disciplinary charges and conviction or the actual contents of the video and indicated it would instruct the jury that Plaintiff had requested the footage be preserved and it was not and that ?the jurors should not assume that the lack of corroborating objective evidence? undermined Plaintiff?s ?version of events surrounding the fight?

Nature of Case: Pro se Eighth Amendment Claims (prison litigation)

Electronic Data Involved: Surveillance footage

Okada v. Whitehead, No. SACV 15-01449-JLS (KESx), 2016 WL 9448484 (C.D. Cal. June 16, 2016)

Dec 01 2016

Key Insight: Where Defendant explained that certain emails were not produced because he lost access to the account which subsequently expired and thus the emails were not in his possession custody or control, the court concluded that the duty to preserve was triggered prior to the expiration of the account by the filing of a separate lawsuit involving the same at-issue property in which the parties to this case were codefendants and explained in footnote that it could locate no case law limiting the duty to preserve to an adversary as opposed to all parties to litigation and noted that the duty to preserve ?may carry over to subsequent lawsuits involving the same subject matter?; finding the spoliation was prejudicial but not intentional, the court ordered the jury be informed of the failure to preserve, but not instructed to presume anything about the content of the emails

Nature of Case: Breach of Settlement Agreement

Electronic Data Involved: e-mail

Kissing Camels Surgery Center, LLC v. Centura Health Corp., No. 12-cv-03012-WJM-NYW, 2016 WL 277721 (D. Colo. Jan. 22, 2016)

Dec 01 2016

Key Insight: Where Plaintiffs objected to Defendants? ?duplicative? requests and claimed they had already produced responsive documents but provided Defendants with no guidance as to where such documents could be found within the voluminous production, the court acknowledged that it would ?ordinarily? conclude that Plaintiffs had no obligation to identify responsive documents but, citing the volume of data at issue, the ?asymmetry of information regarding the production between Plaintiffs,? the time the case had been pending, and the fact that additional discovery would be required, the court concluded that Plaintiff should provide additional information and ordered that Defendants would be permitted to identify ten categories of requested documents that Plaintiffs claimed to be duplicative and that Plaintiffs must then identify documents responsive to those requests

Electronic Data Involved: ESI

MP Nexlevel of California, Inc. v. CVIN LLC, No. 1:14-cv-00288-LJO-EPG, 2016 WL 1408459 (E.D. Cal. April 11, 2016)

Dec 01 2016

Key Insight: Court found that the at-issue discovery was not required under Fed. R. Civ. P. 26(b)(1) and declined to compel production of every document ?referring or relating? to Plaintiff?s ?designated Responsible Managing Employee? for all 11 of Plaintiff?s California projects where the court determined that the relevance was minimal, where both parties ?appeared to agree? that the request would require ?a search for every document to or from [the employee]? and Plaintiff alleged that many documents were not electronically searchable, and where the court recognized that ordering such production could cause a ?chilling effect? that may ?discourage [construction] companies from filing a lawsuit merely to avoid the discovery costs?

Electronic Data Involved: ESI and other records “referring or relating” to specified employee

Allen v. City of Chicago, No. 10 C 3183, 2016 WL 1070828 (N.D. Ill. Mar. 16, 2016)

Dec 01 2016

Key Insight: Addressing Defendant?s request for $16,200.00 in costs charged by third party vendor who assisted in email production, including $16,000 for ?Digital Tech Time per GB: Tiff Conversion, OCR, Endorse & Export for Searchable PDF,? court concluded that converting files to TIFF or PDF was the equivalent of ?making copies? and was recoverable but that costs for making a document searchable are not recoverable; where Defendant failed to provide an adequate breakdown of the costs for each service provided, court reduced the requested recovery and awarded $4,000 for the ?Tiff conversion portion of the invoice? and also awarded $200 for the cost of two hard drives utilized for the email production

Electronic Data Involved: Taxable costs ( 28 U.S.C. ? 1920(4))

Hausman v. Holland Am. Line-U.S.A., No. CV13-0937 BJR, 2015 WL 51273 (W.D. Wash. Jan. 5, 2016)

Dec 01 2016

Key Insight: Judgment vacated and new trial ordered for deliberate spoliation of relevant emails revealed by credible witness after original trial

Nature of Case: Personal injury

Electronic Data Involved: Emails

Camesi v. Univ. of Pittsburgh Med. Ctr., —Fed. Appx.—, 2016 WL 7402982 (3d Cir. Mar. 21, 2016)

Dec 01 2016

Key Insight: Court indicated that it was “not readily apparent what ESI activities the charges at issue cover[ed], or how th[ose] activities constitute[d] either of the two applicable types of taxable costs identified in Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., 674 F.3d 158 (3d Cir. 2012) and, following an extensive discussion of the reasoning and findings in Race Tire, indicated that ?the highly technical nature of the services simply does not exempt parties who seek to recover their electronic discovery costs under ?1920(4) from showing that the costs fall within the subsection?s limited allowance for ?the cost of making copies of any materials?? and vacated and remanded the case, suggesting that the court consider an evidentiary hearing or taking additional evidence to make its decision

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: Taxable Costs

Deere & Co. v. Duroc LLC, 650 Fed. Appx. 779 (Fed. Cir. 2016)

Dec 01 2016

Key Insight: Where parties entered into an agreement that set forth parameters for production of ESI, District Court held that ?when the costs of complying with the agreement are within the obligations of the Agreement and reasonably incurred in complying with the Agreement, they are recoverable? and circuit court, on appeal, concluded that District Court acted within its discretion: ?The district court held that the e-discovery costs incurred in procedures required by the ESI Agreement are within the scope of ? 1920. Relying on the Agreement, the district court did not separate the activities required by the e-discovery Agreement. We conclude that the district acted within its discretion.?

Nature of Case: Patent infringement

Electronic Data Involved: Taxable Costs ( 28 U.S.C. ? 1920)

Mazzei v. Money Store, —Fed. Appx.—, 2016 WL 3902256 (2d Cir. July 15, 2016)

Dec 01 2016

Key Insight: District court did not abuse discretion in declining to impose an adverse inference for failure to preserve ESI in an accessible format and instead awarding costs and attorneys fees where the at issue system “contained only ‘tangential information'” and where Plaintiff failed to seek discovery from other sources; Circuit court’s analysis noted recently amended Rule 37(e)’s required finding of intent to impose an adverse inference and that the District Court “specifically found that defendants did not act with such intent”

Nature of Case: Class action: breach of contract

Electronic Data Involved: ESI in third party custody but under control of defendants

Thorne Research Inc. v. Atl. Pro-Nutrients, Inc., No. 2:13-cv-784, 2016 WL 1122863 (D. Utah Mar. 22, 2016)

Dec 01 2016

Key Insight: Defendant sought production of a complete copy of a Microsoft Access database utilized by patent?s co-inventor to input his formulas to assess the legitimacy of the claimed conception date. Plaintiff argued the database did not ?maintain metadata like word processing or spreadsheet programs do? and also that the database, maintained by a third-party, contained proprietary information of non-parties. Defendant maintained the stipulated protective order would protect the third-party proprietary information and that Plaintiffs had not argued that they would incur ?undue hardship or expense? in producing the database with its metadata. The court granted Defendant?s motion to compel production of the database and metadata for forensic analysis.

Nature of Case: Patent infringement

Electronic Data Involved: Microsoft Access Database

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