Electronic Discovery Law – Page 120 – Legal issues, news and best practices relating to the discovery of electronically stored information.

LBI, Inc. v. Sparks, No. KNLCV126018984S, 2015 WL 6144112 (Conn. Super. Ct. Sept. 18, 2015)

Dec 01 2015

Key Insight: Where Defendant sought to avoid production or allocate costs related to the production of allegedly inaccessible information based on the alleged cost and burdens related to processing and review but acknowledged that some of the ?raw data associated with the documents? was accessible, the court concluded that the affidavit from an attorney for the defendant?s counsel who had not ?attested to having a technical understanding of, or background in, electronically stored data? was not by itself ?enough evidence? to demonstrate that the at-issue ESI was not reasonably accessible and ordered defendant to submit additional evidence re: whether the information was stored in a ?readily usable format?

Nature of Case: Breach of contract, breach of duty of loyalty, misappropriation of trade secrets and tortious interference with a business relationship

Electronic Data Involved: ESI

Appler v. Mead Johnson & Co., LLC, NO. 3:14-cv-166-RLY-WGH, 2015 WL 5793236 (S.D. Ind. Oct. 1, 2015)

Dec 01 2015

Key Insight: Despite ?attenuated? arguments in favor of production, court found that social media content of Plaintiff?s supervisor and Defendant?s human resources representative could contain relevant information and, pursuant to a pre-existing protective order restricting disbursement of discoverable information, concluded that Plaintiff?s counsel could review the individuals’ social networking sites (SNS) content for relevant remarks; court ordered hearing to discuss procedures for searching and limiting SNS content, the costs of such a search, who should conduct the search, etc.

Nature of Case: Employment litigation

Electronic Data Involved: Social media (Facebook, MySpace)

Henry v. Abbott Labs., No. 2:12-cv-841, 2015 WL 5729344 (S.D. Ohio Sept. 30, 2015)

Dec 01 2015

Key Insight: Despite duty to preserve personnel records created by regulation (29 CFR ? 1602.14), court found no ?regulatory violation? in the destruction of documents subject to preservation until a ?final disposition? of the action where documents were destroyed following Plaintiff?s failure to appeal the dismissal of her case; court also found that even if Defendant had an ongoing duty to preserve (because the case was eventually reinstated upon Plaintiff?s motion for relief from the dismissal), there was no evidence of requisite culpability where Defendant reasonably believed (as did the court) that the case had been ?finally adjudicated;? the court also questioned the relevance of the at-issue documents

Nature of Case: Employment discrimination

Electronic Data Involved: ESI: personnel evaluations, surveys related to promotion

Bloom v. Toliver, No. 12-CV-169-JED-FHM, 2015 WL 5344360 (N.D. Okla. Sept. 14, 2015)

Dec 01 2015

Key Insight: Where prisoner alleged that he was attacked by another inmate and that corrections officers failed to properly respond, court found prison had a duty to preserve relevant surveillance footage and the recording of the involved-officer?s phone call to his wife immediately following the incident and that the failure to do so resulted in prejudice; court ordered evidentiary sanctions for the loss of certain footage, but reserved a determination re: sanctions as to lost video of the aftermath of the attack and the officer?s phone call

Nature of Case: Civil rights

Electronic Data Involved: Video surveillance footage and call recording

You v. Japan, No. C 15-30257, 2015 WL 5542539 (N.D. Cal. Sept. 9, 2015)

Dec 01 2015

Key Insight: In this case, the court ordered preservation, including “interdiction of any document-destruction programs . . .” and defendant alleged that preservation of all contents of a proprietary publication application could slow down or crash the system and that installation of a new storage system would cost $18 million dollars and could take up to eight months to install. Accordingly, the defendant sought permission to employ an alternative preservation protocol, namely the use of key word search terms to identify materials to be preserved in a ?searchable environment not subject to auto-delete.? With the addition of one search term to be employed, the court approved Defendant?s proposal.

Nature of Case: Putative personal injury class action involving claims against numerous defendants for alleged sexual violence during World War II

Electronic Data Involved: ESI

Grove City Veterinary Serv. LLC v. Charter Practices Int?l, LLC, No. 3:13-cv-02276-AC, 2015 WL 4937393 (D. Or. Aug. 18, 2015)

Dec 01 2015

Key Insight: Where Plaintiff had a ?continuing business relationship? with Defendant despite the pending litigation and Defendant hosted Plaintiff?s emails on its servers, court rejected Plaintiff?s claim that Defendant?s changes to the email-archiving system resulted in a loss of Plaintiff?s emails where Plaintiff could provide no evidence of Defendant?s alleged access to Plaintiff?s emails and where Defendant credibly posited that Plaintiff had accidentally ?dragged and dropped? the missing email folders into the ?Notes? tab of the archived mailbox (where the emails were ultimately located); court also declined to impose sanctions for Defendant?s initial refusal to assist Plaintiff to locate the emails (that it had requested) where it had no duty to do so, and where despite that lack of duty, it nonetheless ultimately made a good faith, but unsuccessful, search effort; Defendant?s litigation hold on Plaintiff?s email account to retain copies of messages that anyone attempted to delete did not warrant sanctions, despite Plaintiff?s claim that the hold was ?worse than spoliation? because ?unlike evidence unlawfully destroyed by a party, evidence placed in a litigation hold is still available to the party implementing the litigation hold?

Nature of Case: Breach of contract

Electronic Data Involved: Emails

Cognate Bioservices, Inc. v. Smith, No. WDO-13-1797, 2015 WL 5158732 (D. Md. Aug. 31, 2015)

Dec 01 2015

Key Insight: Plaintiff accused Defendant, its former officer (CEO), of accessing and copying proprietary materials and providing them to another corporation; court found Defendant?s failure to preserve notebooks and the contents of a discarded smartphone to be willful (but not in bad faith) and the failure to issue a litigation hold resulting in the loss of ESI to be grossly negligent; relevance was presumed as to the willfully destroyed materials and was established as to the ESI lost as the result of the litigation hold failure but, after reasoning that the prejudice resulting from the loss of the notebooks was ?clear?-based on their contents-the court indicated that prejudice resulting from the loss of the smartphone and other deletions was ?more complicated? where the ESI may still exist (on a preserved laptop), indicating that if they could not be recovered, the destruction would be prejudicial and warrant sanctions; for willful destruction of notebooks, court recommended that the presiding judge consider an adverse inference; for loss of contents of smartphone and other ESI, court indicated the sanctions were the to be decided by presiding judge and would depend on whether the information could be obtained from another source (i.e., the level of prejudice); no spoliation found as to at-issue laptop where defendant returned the laptop to an employee of the corporate owner, but where that employee was notified to preserve the contents and thus it was unclear if any ESI was lost

Nature of Case: Misappropriation of proprietary information

Electronic Data Involved: Hard copy notebooks, emails/smartphone, ESI

Boyd v. Mississippi, No. 2014?KA?00404?SCT, 2015 WL 1955570 (Miss. Apr. 30, 2015)

Dec 01 2015

Key Insight: Court said that it was clear that the defendant?s name on a Facebook profile did not suffice to show that he authored the Facebook messages, but what did authenticate them were the ?peculiar circumstances? of the case, including a Facebook message that contained the same three digits of a phone number that was used to text victim and arrange a meeting at which the defendant was arrested. Court also found that the fact that the defendant went alone to an agreed location twice after the sender of text messages agreed to do so, with a phone in his possession that had the same number as had been used to communicate with the victim, was sufficient to authenticate that the defendant was the author of the text messages.

Nature of Case: Criminal

Electronic Data Involved: Social media (Facebook), Text Messages

Wilder v. Rockdale Cnty., No. 1:13?CV?2715?RWS, 2015 WL 1724596 (N.D. Ga. April 15, 2015)

Dec 01 2015

Key Insight: Where defendants downloaded some, but not all available video within three days of incident and video-recording system programmed by third-party vendor automatically overwrote old video after thirty days, court found that defendants did not destroy evidence in bad faith and plaintiff was not extremely prejudiced and, therefore, not entitled to spoliation sanctions. Court also reviewed the record related to missing documents and said that defendants had diligently searched for the documents and concluded, ?Apparently, Defendants do not have these documents, and there is no evidence of bad faith or spoliation of evidence. Because Defendants are only required to produce what they have, the Court cannot compel Defendants to produce these documents.?

Nature of Case: Wrongful Death

Electronic Data Involved: Surveillance Video; Documents

Ralser v. Winn Dixie Stores, Inc., No. 13-2799, 2015 WL 5016351 (E.D. La. Aug. 21, 2015)

Dec 01 2015

Key Insight: Where Defendant was unable to produce the original version of a particularly relevant document in native format and claimed the loss resulted from the automatic deletion of the original version pursuant to the company?s document retention policy, the court declined to impose sanctions reasoning that a later version of the document was provided to Defendant?s legal department, that it was ?not obvious? that prior versions needed to be preserved and that by the time Plaintiff filed his lawsuit following termination, a year had passed and the document would have been destroyed under the retention policy; the court further reasoned:? While this destruction still occurred during the litigation hold, the fact that Winn Dixie?s normal retention policy called for the document?s destruction undermines a finding of bad faith because Winn?Dixie?s failure to adjust the document retention system to comply with the litigation hold signified an omission, and not a commission. In other words, Winn?Dixie?s failure to retain the electronic document was not the result of a directed action to delete the document but rather a failure to turn off the automatic deletion mechanism. Such action, at best, amounts to negligence and does not rise to the level of bad faith.?

Nature of Case: Employment litigation

Electronic Data Involved: Original version of relevant ESI