Case Summaries – Page 86 – Electronic Discovery Law

J&JB Timberlands, LLC v. Woolsey Energy II, LLC, No. 14-cv-01318-SMY-PMF, 2016 WL 4006671 (S.D. Ill. Apr. 28, 2016)

Dec 01 2016

Key Insight: Although the court found that Defendants breached their duty to preserve certain emails by (1) failing to take reasonable steps to preserve Kelley?s emails, (2) misrepresenting the manner in which the data was lost, (3) misrepresenting that the lost data could not be recovered, and (3) using the laptop in May and August, 2015, the court also found the breach was not intentional and that Plaintiff was only ?minimally harmed? and eventually able to obtain the missing information and thus declined to strike Defendants? pleadings but ordered that Defendants should compensate Plaintiff for the reasonable attorneys? fees and expenses incurred in obtaining the email

Electronic Data Involved: Emails

First Amer. Title Ins. Co. v. N.W. Title Ins. Agency, LLC, No. 2:15-cv-00229, 2016 WL 4548398 (D. Utah Aug. 31, 2016)

Dec 01 2016

Key Insight: Court concluded that Defendants ?taking steps? to start a competing company even if it was known that starting the company ?would be contentious and actively opposed? was insufficient to establish imminent litigation triggering a duty to preserve (note that imminence is the test in the 10th Cir.); court assessed requests for sanctions as to multiple sources of ESI and largely denied those motions absent evidence of prejudice or that the information could not be restored or replaced but did impose sanctions for non-party employee of Defendants? loss of potentially relevant ESI and hard copy taken from Plaintiff (both assessed ?under the same rubric of Rule 37?) and ordered that the parties would be permitted to present evidence of the spoliation to the jury

Electronic Data Involved: ESI & hardcopy

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

Melchior v. Hilite Int?l Inc., No. 3:11-CV-3094-M (BH), 2016 WL 1165911 (N.D. Tex. Feb. 26, 2016)

Dec 01 2016

Key Insight: Defendant objected to portion of Plaintiff?s bill of costs for electronic data processing, document conversion, exhibit stamping and copy charges. The court sustained Defendant?s objection relating to costs for (i) ?hosting fees, user fees and other miscellaneous database charges? (outside the scope of ?copying or scanning materials?); (ii) converting ESI documents to TIFF format (parties agreed to produce as either native or TIFF files – ?[b]ecause any conversion of the electronic files was the choice of each party,? the conversion was not ?necessarily obtained for use in the case?); (ii) exhibit stamps (not taxable under 1920(4)); (iv) building an electronic database (?steps leading up to the process of copying? do not fall under copying); (v) Plaintiff?s conversion of documents produced to him by the Defendant (?not necessarily obtained?); and (vi) costs of printing electronic documents to paper (for Plaintiff?s convenience rather than necessary). Plaintiff?s recoverable amount was reduced accordingly.

Nature of Case: Taxable costs

Electronic Data Involved: ESI

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

Catagory:Case Summaries