Electronic Discovery Law – Page 12 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Abedin v. Palominos Osorio (N.Y.A.D. Nov. 12, 2020)

Nov 12 2020

Key Insight: The court granted defendant’s motion to compel the minor plaintiff to sign authorizations to obtain her social media information. “[D]efendant demonstrated that records from [plaintiff’s] Facebook, Snapchat, and Instagram accounts were ‘reasonably likely to yield relevant evidence.’” The ESI was relevant to alleged emotional and mental trauma plaintiff suffered as a result of the accident as evidenced by her social isolation and withdrawal.

Nature of Case: Personal injuries

Electronic Data Involved: Social media

Case Summary

Milke v. City of Phoenix (D. Ariz. 2020)

Oct 30 2020

Key Insight: The court dismissed plaintiff’s civil rights action based on spoliation of physical and ESI evidence, and for failure to submit complete and accurate discovery responses. The court previously sanctioned plaintiff for spoliation of evidence and determined that lesser sanctions short of dismissal could not cure the prejudice to defendant. Plaintiff, her agents, and her counsel failed to preserve website and social media sites and took affirmative steps on multiple occasions to destroy the evidence after litigation became reasonably foreseeable.

Nature of Case: Civil Rights Act

Electronic Data Involved: Social media and websites

Case Summary

In re: 3M Combat Arms Earplug Prods. Liab. Litig. (N.D. Fla., Oct. 2020)

Key Insight: In their discovery requests, Defendants sought data concerning the Plaintiff’s use of social media and text messages concerning matters relevant to the litigation. After Plaintiff provided responses to these discovery requests, Defendants filed a Motion to Compel Plaintiff to submit to a forensic examination of his mobile phone. Defendants based their Motion on the arguments of ensuring complete collection of data from the mobile phone, and more specifically, complete data of Plaintiff’s use of social media messaging and text messaging with several parties on said mobile phone.

The Court denied Defendants’ Motion because it found that the electronic stored information (ESI) already produced was complete and/or sufficient due to the Plaintiff already working with an ESI expert to obtain the requested data, particularly from the mobile device. In short, the Defendants’ lacked a sufficient reason to believe that the data already produced was not complete.

Similarly, the Defendants failed to demonstrate that a forensic examination of the mobile device would produce relevant data showing that Plaintiff had a pattern or practice of deleting the above mentioned messages. Moreover, the data produced by the examination would only show that a message was deleted, not when or why the message(s) were deleted, the contents of the message(s), or a pattern of deleting messages. In sum, the Court found that the requested forensic examination would be “disproportionate to the slight importance” it would provide to the litigation.

Nature of Case: Product Liability

Electronic Data Involved: Cellular Phone, Text Messages, Social Media, Social Media Messages,

Case Summary

Haroun v. ThoughtWorks, Inc. (S.D.N.Y. 2020)

Oct 07 2020

Key Insight: Plaintiff has no basis to seek “discovery on discovery” from defendants. Plaintiff “does not identify any gaps in production of ESI, any reason to believe that documents have been deleted, or any basis for asserting that Defendants are not searching all relevant and reasonably available sources of ESI that would contain material responsive to Plaintiff’s document requests.” Plaintiff can inquire at deposition and review the document production to identify obvious gaps.

Nature of Case: Employment Discrimination

Electronic Data Involved: Business documents

Case Summary

Rich v. Butowsky (D.D.C., 2020)

Oct 06 2020

Key Insight: A rule 45 motion to quash subpoenas on electronic subpoenas for electronic identities of anonymous users uses the 2themart.com test and are very fact specific

Nature of Case: Defamation

Electronic Data Involved: User account information

Keywords: Murder, twitter, first amendment, motion to quash, subpoena, defamation

Charlestown Capital Advisors, LLC v. Acero Junction, Inc. (S.D.N.Y. Sept. 30, 2020)

Sep 30 2020

Key Insight: Sanctions against Defendants were warranted. Defendants had a duty to preserve relevant ESI at the time of their deletion which occurred a year into the litigation. Defendants failed to take reasonable steps to preserve relevant ESI. Defendants failed to suspend their routine document retention/destruction policy, Defendants’ counsel failed to oversee or play a role in preserving or attempting to reconstruct relevant ESI until 5 months after their deletion, and Defendants’ restoration attempts were inadequate.

Nature of Case: Breach of Contract

Electronic Data Involved: Email

Case Summary

Carrington v Graden, (S.D.N.Y. 2020)

Sep 28 2020

Key Insight: Plaintiff was discovered to have fabricated emails. Court awarded over $500,000 in damages to Defendant.

Nature of Case: antitrust litigation

Electronic Data Involved: Emails

Keywords: sanctions,m fabricated evidence

View Case Opinion

Oracle USA, Inc. v. Rimini Street, Inc. et al. (D. Nev. 2020)

Sep 25 2020

Key Insight: Plaintiff filed a Motion to Compel based on Defendant’s (categorical) objections and assertion of attorney-client privilege over (software) source code in responding to discovery requests; Plaintiff specifically cited Defendant’s failure to provide an itemized privilege log for its objections. Defendant filed a Motion to seal the redacted information that it provided to Plaintiff despite the privilege objections.

The Court upheld Defendant’s objections, noting that objection(s) need not be in the form of a privilege log. Moreover, the Court granted the Defendant’s Motion to Seal the redacted information that it provided to Plaintiff despite its objections.

Nature of Case: Intellectual Property, Copyright Infringement

Electronic Data Involved: Source Code

Case Summary

Livingston v. City of Chicago (Northern District of Illinois, 2020)

Sep 03 2020

Key Insight: A responding party is best suited to determine the method of review and using TAR to pre-cull documents from review is an acceptable methodology

Nature of Case: Hiring discrimination

Electronic Data Involved: Emails

Keywords: Chicago, fire department, technology assisted review, TAR

View Case Opinion

Murray v. City of Warren (E.D. Mich. 2020)

Aug 17 2020

Key Insight: The court agreed that plaintiff’s request for “all emails” from three custodians was overly broad and narrowed it to relevant search terms relating to plaintiff’s allegations of harassment. The court also relied on its prior ruling, directing the parties to confer regarding the search terms and if the parties cannot agree on appropriately limited search terms, they will share the cost of retaining an expert to assist them. If they still cannot agree, plaintiff can renew his motion and provide the court with an expert report substantiating his position.

Nature of Case: Employment discrimination

Electronic Data Involved: Email, Personnel files

Case Summary