Electronic Discovery Law – Page 122 – Legal issues, news and best practices relating to the discovery of electronically stored information.

US ex rel Oughatiyan v. IPC The Hospitalist Co., Inc., No. 09 C 5418, 2015 WL 4249195 (N.D. Ill. July 14, 2015)

Dec 01 2015

Key Insight: Court addressed motion to compel nationwide discovery in action for fraudulent billing of Medicare and Medicaid but, considering the ?scope of discovery expressed in Rule 26(b)(1) along with the principle of proportionality implicit in Rule 26(b)(2)(C)(iii)? limited initial phase of discovery to the seven states regarding which ?factual allegations? had been alleged in the complaint, recognizing that ?staged discovery [was] the way to move discovery forward,? and indicated that the motion would be denied without prejudice

Nature of Case: False Claims Act

Electronic Data Involved: ESI records from nationwide locations

State Farm Mut. Auto. Ins. Co. v. Warren Chiropractic & Rehab Clinic, P.C., No. 4:14-CV-11521, 2015 WL 4094115 (E.D. Mich. July 7, 2015)

Dec 01 2015

Key Insight: Court granted motion to compel and rejected objections based on burden where Defendants offered no evidence in support of the alleged claims of burden nor ?any specificity regarding the approximate cost of production?

Nature of Case: Fraud

Electronic Data Involved: ESI

Arkansas River Power Auth. v. Babcock & Wilcox Power Generation Grp., Inc., No. 14-cv-00368-CMA-NYW, 2015 WL 2128312 (D. Colo. May 5, 2015)

Dec 01 2015

Key Insight: Addressing several disputes, court concluded that parties having agreed on an ESI production ?must only comply with Rule 34(b)(2)(E)(ii)? and that the question was therefore whether the defendant ?produced its ESI in the form in which it is ordinarily maintained or in a reasonably usable form or forms. The rule clearly requires one or the other, but not both.?; where defendant produced majority of its documents in a reasonably usable form (TIFF), court declined to compel production of additional metadata

Nature of Case: Breach of contract and related claims

Electronic Data Involved: ESI

Commonwealth v. Mulgrave, 33 N.E.3d 440 (Mass. July 13, 2015)

Dec 01 2015

Key Insight: Where murder victim sent text message to son stating that defendant was threatening to kill her and that she was scared and 6 minutes later called 911 to report that defendant was stabbing her, court did not err in allowing text message to son into evidence under the ?spontaneous utterance? exception to the hearsay rule

Nature of Case: Murder

Electronic Data Involved: Text message

United States v. Lizarraga-Tirado, —F.3d—, 2015 WL 3772772 (9th Cir. June 18, 2015)

Dec 01 2015

Key Insight: Court found that Google Earth satellite image was not hearsay because it makes no assertion and also found that ?[a] tack placed by the Google Earth program and automatically labeled with GPS coordinates isn?t? hearsay? because the ?relevant assertion isn?t made by a person? its made by the Google Earth program? and therefore, there is no statement as defined by the hearsay rule (where the rule applies ?only to out-of-court statements? and where ?it defines a statement as ?a person?s oral assertion, written assertion, or nonverbal conduct?); however, ?[i]f the tack is place d manually and then labeled . . . its classic hearsay?

Nature of Case: Illegal re-entry into the U.S.A.

Electronic Data Involved: Google Earth image and tack

HMS Holdings Corp. v. Arendt, NO. A754/2014, 2015 WL 2403099 (N.Y. Sup. Ct. May 19, 2015)

Dec 01 2015

Key Insight: For one defendant?s repeated use of a cleaning software (?Disk Utility? and its ?Secure Erase Free Space? function) to delete files and loss of a relevant hard drive without an adequate explanation and for another defendant?s loss of relevant ESI, including her intentional deletion of information from the desktop registry and her disposal of her cell phone (which she notably was unaware had been automatically backed up each time it was connected to her computer), ongoing deletion of text messages (on her new phone), and misrepresentations about when the old phone was discarded, the court found that a mandatory adverse inference was warranted and rejected Defendants? argument that the court should decline to employ the adverse inference at the preliminary injunction state, reasoning that the objective of promoting fairness was best served by ?employing an adverse inference at all relevant states of the litigation?; court also ordered defendants to pay Plaintiff?s attorneys fees without seeking reimbursement from their new employer and indicated its intention to forward its decision to the NY Bar in light of one defendant?s status as an attorney

Nature of Case: Misappropriation of trade secrets, breach of “post-employment covenants”

Electronic Data Involved: ESI, hard drive, text messages (iphone)

United States v. Shah, No. 5:13-CR-328-FL, 2015 WL 3605077 (E.D.N.C. June 5, 2015)

Dec 01 2015

Key Insight: Court declined to find that contents of email and chats from gmail account could be authenticated as Google?s business records pursuant to ER 902(11) where the contents of the emails were automatically copied to and maintained upon Google?s servers finding that the ?knowledge? requirement was not satisfied and reasoning: ?Neither SHAHNN28@GMAIL.COM, nor any other originating source whose statements appear in the records produced by Google were under a ?business duty? to convey accurate information in their correspondence. Because the proffered ?finished product? is not the collective effort of ?business insiders,? who share a duty to ensure the accuracy of their statements, the court cannot allow those statements to be authenticated on the theory that they are Google?s self-proving business records under Federal Rules of Evidence 803(6) and 902(11).?

Nature of Case: Intentional damage to a protected computer

Electronic Data Involved: Gmail emails and chats

Smith v. Williams, No. 06-14-00040-CV, 2015 WL 3526089 (Tx. Ct. App. May 29, 2015)

Dec 01 2015

Key Insight: Trial court erred by giving a spoliation instruction for Defendant?s failure to produce certain information where an explanation was given for the nonexistence of some records and where there was no evidence that the missing records were lost with the requisite intent to conceal or destroy relevant evidence and the error was harmful; judgment was reversed and case remanded

Nature of Case: Personal injury resulting from automobile/tractor-trailer collision

Electronic Data Involved: Miscellaneous records

Giuliani v. Springfield Township, No. 10-7518 (E.D. Pa. June 9, 2015)

Dec 01 2015

Key Insight: Court declined to impose spoliation sanctions for Township?s alleged failure to preserve relevant evidence where the Township believed that all disputes with Plaintiffs had been resolved, and thus had no anticipation of litigation or duty to preserve prior to the filing of the complaint, where there was no evidence that the at-issue evidence was destroyed after litigation had commenced, and where Plaintiffs failed to establish that defendant had acted with any ill motive or bad intent (bad faith) in failing to retain the documents plaintiff sought

Nature of Case: Constitutional claims related to land use

Electronic Data Involved: Emails, ESI

Malibu Media, LLC v. Harrison, No. 1:12-CV-117-WTL-MJD, 2015 WL 3545250 (S.D. Ind. June 8, 2015)

Dec 01 2015

Key Insight: Where magistrate judge found that defendant violated his duty to preserve when he discarded his laptop after it allegedly crashed but declined to impose default judgement or an adverse inference absent evidence of bad faith, the district court upheld the decision not to impose default judgment but, reasoning that the credibility of defendant?s explanation was best left to the jury, held that the jury would be instructed that if it found bad faith, it could infer the computer?s contents were unfavorable

Nature of Case: Copyright infringement

Electronic Data Involved: Contents of hard drive