Tag: Third Party Discovery

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Mid-Atlantic Framing v. AVA Realty Ithaca, LLC (N.D.N.Y., 2018)
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Shenwick v. Twitter Inc., No. 16-cv-05314-JST (N.D. Cal. Feb. 7, 2018)
3
Landry v. Swire Oilfield Servs. (New Mexico District Court, 2018)
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Par Pharm., Inc. v. Express Scripts Specialty Distribution Servs., Inc., No. 4:17MC510 RLW, 2018 WL 264840 (E.D. Mo. Jan. 2, 2018)
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Zamora v. Stellar Mgmt. Grp., Inc. , 3:16-05028-CV-RK, 2017 WL 1362688 (W.D. Mo., Mar. 11, 2017)
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Agility Pub. Warehousing Co. v. Dep?t of Defense, 14-1064 (JDB), 2017 WL 1214424 (D.D.C. Mar. 30, 2017)
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Selective Ins. Co. of the Se. v. RLI Ins. Co., 5:12CV2126, 2017WL 1206036 (N.D. Ohio Mar. 31, 2017)
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Padron v. Watchtower Bible & Tract Society of New York , Inc. (Cal. Ct. App., 4th District, 2017)
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Williams v. Superior Court (California Supreme Court, 2017)
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Twitch Interactive, Inc. v. Johnston (N.D. Cal., 2017)

Mid-Atlantic Framing v. AVA Realty Ithaca, LLC (N.D.N.Y., 2018)

Key Insight: Willfull failure to produce records in discovery; Adverse inferences

Nature of Case: Contract

Electronic Data Involved: ESI

Keywords: Summary Judgment; Spoliation; Sanctions; Bad Faith; Mechanics lien; discovery delay; failure to produce records

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Shenwick v. Twitter Inc., No. 16-cv-05314-JST (N.D. Cal. Feb. 7, 2018)

Key Insight: Private messages between individuals that are not defendants are protected from discovery through the Stored Communications Act even if the providing company itself is the named defendant

Nature of Case: Class action securities fraud

Electronic Data Involved: Electronic messages (twitter direct messages)

Keywords: Class action, direct message, twitter, stock

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Landry v. Swire Oilfield Servs. (New Mexico District Court, 2018)

Key Insight: Courts should be less involved in discovery dispute regarding ESI despite recent FRCP amendments

Nature of Case: Labor Standards Class Action

Electronic Data Involved: third party electronic payroll data

Keywords: FRCP 2015 amendments, electronically readable fomat

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Par Pharm., Inc. v. Express Scripts Specialty Distribution Servs., Inc., No. 4:17MC510 RLW, 2018 WL 264840 (E.D. Mo. Jan. 2, 2018)

Key Insight: motion to compel production of documents including confidential patient information

Nature of Case: patent infringement

Electronic Data Involved: database maintained by non-party

Keywords: undue burden and expense on a non-party, subpoena duces tecum

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Zamora v. Stellar Mgmt. Grp., Inc. , 3:16-05028-CV-RK, 2017 WL 1362688 (W.D. Mo., Mar. 11, 2017)

Key Insight: Where Plaintiff in an employment litigation failed to preserve a potentially relevant Facebook post, deleted her work phone before returning it and failed to preserve information contained on numerous other phones (e.g., because they were lost, etc.), court found that ?Plaintiff cannot be relied on to disclose all relevant communications? and granted motion to allow access to the mirror image of a phone belonging to a former employee and co-worker of the plaintiff and to allow defendant to subpoena the former employee to produce a second phone for inspection and ordered production of Plaintiff?s current work phone, to be reviewed by a Special Master for potentially relevant communications, with the cost of the Special Master to be split between the parties ; court found request for dismissal or an adverse inference was premature

Nature of Case: Employment litigation

Electronic Data Involved: ESI from cellular phones, Facebook

Agility Pub. Warehousing Co. v. Dep?t of Defense, 14-1064 (JDB), 2017 WL 1214424 (D.D.C. Mar. 30, 2017)

Key Insight: Where Plaintiff sought sanctions for a government agency?s failure to preserve and produce emails in response to a Touhy request (an APA action was eventually filed), court denied Plaintiff?s request to depose the Agency?s attorneys as a way to ?replace? the lost information (thus, according to Plaintiff, avoiding further analysis under Rule 37(e)), reasoning that the rule?s Committee Notes appeared to ?contemplate that the ?replacement? of lost information would come from another electronic source,? and declined to impose the requested sanction under any authority (either Rule 37(e) or the court?s inherent authority) where Plaintiff?s requested sanction was not appropriately targeted to the harm claimed and where no prejudice was established

Nature of Case: APA Action related to Touhy request

Electronic Data Involved: Email

Selective Ins. Co. of the Se. v. RLI Ins. Co., 5:12CV2126, 2017WL 1206036 (N.D. Ohio Mar. 31, 2017)

Key Insight: Court agreed with recommendation of magistrate judge and held costs incurred by a non-party for compliance with an order compelling production are reimbursable. The magistrate judge ordered the Non-Party to submit a cost estimate for reviewing the documents, preparing a privilege log and producing the non-privileged documents. The cost estimate submitted was over $120,000. Defendant then presented a pared down document request and the magistrate judge issued a Modified Subpoena. The Court accepted the magistrate judge?s recommendation and ordered Defendant to pay $14,174.32 for the costs to Non-Party of complying with the Modified Subpoena stating that Defendant ?was the recipient of the fruits of Non-Party[?s] labor.? The Court also agreed with the magistrate judge that non-parties are not protected by the work product doctrine.

Nature of Case: Non-party compensation for document production

Electronic Data Involved: emails and non-electronic documents

Padron v. Watchtower Bible & Tract Society of New York , Inc. (Cal. Ct. App., 4th District, 2017)

Key Insight: Refusal to produce documents. Clergy-penitent privilege

Nature of Case: Negligence and failure to warn (Sexual Abuse)

Electronic Data Involved: letter,email, fax,ESI

Keywords: Willful refusal to comply with discovery order; Monetary sanctions; Judicial estoppel

Williams v. Superior Court (California Supreme Court, 2017)

Key Insight: Showing threshold of compelling interest unnecessary before nonparty contact information is discoverable

Nature of Case: Wage and hour class action

Electronic Data Involved: nonparty contact information

Keywords: third party privacy, class action, percipient witness, discovery threshold, threshold requirement

Identified State Rule(s): Cal. Civ. Proc. 2017.010, 1017.020, 2030.300

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Twitch Interactive, Inc. v. Johnston (N.D. Cal., 2017)

Key Insight: Is expedited discovery warranted, and how extensive can Twitch seek discovery on the bot company. Are the non-respnding defendants’ financial informations avle to be discovered?

Nature of Case: Trademark, Contract, unfair competition, cybersquatting

Electronic Data Involved: financial/billing information

Keywords: Immediate discovery, video games, internet, third party discovery

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