E-Discovery Case Law

Selected e-discovery decisions, published as part of the Weekly Trends Reports on the ACEDS site.

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DatePostureOutcomeEntries
01/08/2020Plaintiffs' motion to compel use of TAR.Defendants not compelled to use TAR. Modified search term protocol adopted.In re Mercedes-Benz Emissions Litigation, Case No.: 2:16-cv-881 (S. N.J. Jan. 8, 2020)
Special Master Dennis Cavanaugh (U.S.D.J., Ret.) issued an order and opinion stating that he would not compel defendants to use technology assisted review, and instead adopted the search term protocol (download) as modified by the special master. Plaintiffs proposed that defendants use TAR to identify responsive documents. Defendants disagreed, arguing there is no authority for imposing TAR on an objecting party and asserting that because the case presents a number of “unique” issues TAR would not be appropriate. Instead, defendants contended, they should be allowed to use their preferred custodian and search term method. The special master agreed regarding the lack of authority and agreed, as well, that responding parties are best situated to determine the procedures, methods, and techniques appropriate for them to use. At the same time, the special master stated that he would not look favorably on any arguments from defendants as to burden of discovery requests.
12/19/2019Plaintiff's motion for sanctions. Constructive motion for defendants to comply with court order.Motion for sanctions granted in part and denied without prejudice in part.
Motion to comply granted.
HealthPlan Servs., Inc. v. Dixit, et al., No.: 8:18-cv-2608-T-23AAS (M.D. Fla. Dec. 19, 2019)
U.S. Magistrate Judge Amanda Arnold Sansone ordered defendants to comply with the Court’s earlier order, which had required one of defendants to turn over an employee’s hard drives that were in his possession, for inspection by an expert to determine whether production of documents from the hard drives had been performed properly. The Court also ordered that defendants must pay reasonable expenses plaintiff incurred for meet and confers and filing its motion. The Court denied, without prejudice, plaintiff’s request for additional sanctions, a jury instruction, and an order to show cause why some of the defendants should not be held in contempt of the earlier order.
11/18/2019Relators' motion for sanctions for failure to issue timely litigation hold, spoliation, and concealing spoliation and obstructing discovery.Motion denied.United States et al. v. Supervalu, Inc. et al., NO. 11-3290 (C.D. Ill. Nov. 18, 2019)
U.S. District Judge Richard Mills denied relators’ motion for sanctions. Relators sought sanctions against defendants for failing to issue a timely litigation hold, intentionally destroying relevant evidence, and subsequent efforts to conceal and obstruct discovery of spoliation. Defendants denied all three assertions. After reviewing the record before it, the Court found it was unable to conclude that defendants acted in bad faith (such as destroying evidence to hide adverse information) and, accordingly, denied the motion.
10/07/2019Plaintiff's motion to compel use of certain search terms.Motion denied.NuVasive, Inc. v. Alphatec Holdings, Inc., Case No. 18-cv-0347-CAB-MDD (S.D. Cal. Oct. 7, 2019)
U.S. Magistrate Judge Mitchell Dembin denied plaintiff’s motion to compel defendants to use certain search terms to examine electronic files of certain alleged custodians. The parties had a “general agreement” to generally follow the Model Order Governing Discovery of Electronically Stored Information in Patent Cases appended to Patent Local Rules of the Court. No party filed the Model Order or any ESI order in this matter. The Judge wrote that had the parties proposed using the Model Order, he would not have endorsed it as it is flawed as it pertains to production of email. It requires that the requesting party identify custodians and search terms and limits the requesting party to identifying five custodians and five search terms per custodian. These requirements are inconsistent with FRCP 34 and the Sedona Principles. FRCP 34 does not require that a requesting party identify custodians or search terms. Sedona Principles 1, 3 and 6 have responding parties determine the procedures, methodologies and techniques appropriate for preserving and production their own ESI, with the parties working to reach agreement. In addition, noted the Court, the Model Order is obsolete in its reliance on search terms as the sole tool for identifying responsive ESI. The Court stated that it would not decide whether the proposed custodians are appropriate not decide which search terms should be used. Rather, plaintiff must request information, and defendants must address those requests as required by Rule 34.
09/16/2019Defendant's motion for sanctions for spoliation.Motion granted. Plaintiff's claims dismissed with prejudice. Plaintiff to pay fees and costs.Williams v. American College of Education, Inc., 16 C 11746 (N.D. Ill. Sept. 16, 2019)
In a case of crime and coverup, U.S. District Judge Gary Feinerman granted defendant’s motion for spoliation sanctions. Following an evidentiary hearing, the Court found that plaintiff destroyed files on his laptop computer by installing a new operating system and committed perjury in denying that he had done so. The overall story is long and convoluted, but here is the essence: The day after plaintiff notified defendant of his intent to sue, defendant sent plaintiff a preservation letter. Defendant subsequently requested that plaintiff return his company-issued laptop. Defendant attempted to gather files from the laptop but was unable to because a new operating system had been installed, a process that also deleted old files from the laptop. Meanwhile, in response to document requests plaintiff repeatedly stated that the requested documents could be found on the returned laptop. Plaintiff also repeatedly denied having installed a new operating system on the laptop before returning it to defendant. Taking into consideration the evidence before it, the Court found that defendant had shown by a preponderance of that evidence that plaintiff engaged in spoliation with the requisite intent. The Court next found that defendant had proved by preponderance of the evidence that defendant’s spoliation was willful. In addition, the Court found that plaintiff perjured himself when he repeatedly denied having reinstalled the operating system. After considering sanctions options, the Court dismissed plaintiff’s claims with prejudice and ordered him to pay attorney fees and costs.
09/04/2019Plaintiff's motion for sanctions against one defendant. Individual defendants' motion to stay discovery.Motion for sanctions denied. Motion to stay discovery denied as moot.Smith v. TFI Family Services, Inc., No. 17-02235-JWB-GEB (D. Kan. Sep. 4, 2019)
U.S. Magistrate Judge Gwynne Birzer denied plaintiff’s motion seeking contempt and sanctions orders. Plaintiff had served a subpoena on a third party seeking files, some of which the third party had in electronic form and some of which were in paper form. The subpoena asked for records to be produced in “electronic format” but did not specify what format should be used. The third party produced files in PDF format. Plaintiff argued that the third party failed to produce certain ESI in native form with associated metadata and therefore should be sanctioned. The overall analysis is more complex, but the essence of the Court’s ruling was that if plaintiff had wanted ESI produced in native form with associated metadata, plaintiff should have said so in her subpoena; instead, she left election of the production format to the third party whose choice of PDF might not be what plaintiff now wants but nonetheless was a reasonable choice for the third party to make.
08/22/2019Plaintiffs' motion to modify special master's ESI protocol order.Motion denied.In Re: Apple Inc., No. 5:18-md-02827-EJD (N.D. Cal. Aug. 22, 2019)
U.S. District Judge Edward Davilla denied a motion to modify a special master’s order authorizing forensic imaging of devices belonging to 10 of more than 90 named plaintiffs and an associated protocol. Plaintiffs moved to have the protocol modified so that defendant’s discovery of devices would be limited to the extraction of “limited diagnostic data” instead of full forensic imaging, asserting that allowing full forensic imaging would constitute an invasion of privacy. First, the Court found that plaintiffs “have a legally protected privacy interest in their devices, that their expectation of privacy in their phones is reasonable, and that the threatened invasion is serious.” The Court determined that while full forensic imaging is a significant invasion of plaintiffs’ privacy, the “robust protections” in place adequately protected that privacy; those protections, too numerous to relate here, warrant reading. Next, the Court found that defendant has a compelling need to obtain the discovery. Only by obtaining full forensic images of plaintiffs’ devices would defendant be able to test the performance of those devices, performance that is integral to plaintiffs’ claims. The Court rejected as unpersuasive plaintiffs’ argument that a less intrusive approach, extraction of limited diagnostic data, would be sufficient.
08/14/2019Plaintiff's motion for sanctions for spoliation.Motion granted in part and denied in part.Woods v. Scissons, No. CV-17-08038-PCT-GMS (D. Ariz. Aug. 14, 2019)
U.S. Chief District Judge G. Murray Snow granted in part and denied in part plaintiff’s motion for sanctions. Plaintiff was arrested and brought an action alleging excessive force. Plaintiff sought spoliation sanctions, arguing that a non-party city allowed the automatic deletion of video footage automatically captured by the cameras in various officers’ vehicles and as a result violated a duty to preserve evidence. The Court found that there was evidence that the police units had recorded relevant footage whose loss would have prejudiced plaintiff; that the non-party city, which is paying for defendant’s legal representation and will indemnify him for any judgment entered against him, had a duty to preserve the footage but failed to do so; and that the spoliation can be imputed to defendant. The Court ordered that (1) the jury will hear evidence concerning the potential existence of video footage, (2) the jury will be instructed that it may consider that evidence, (3) the jury will be instructed that if it finds defendant intended to deprive plaintiff of use of the footage it may infer that the footage would have been favorable to plaintiff, but (4) declined to give the instruction requested by plaintiff as the question of intent will be submitted to the jury.
08/08/2019Defendants' appeal from order allows plaintiff's discovery expert access to defendant school's entire computer system.Order vacated and matter remanded.Crosmun v. Trustees of Fayetteville Technical Community College, No. COA18-1054 (N.C. App. Aug. 8, 2019)
In a case of first impression, the North Carolina Court of Appeals “address[ed] the contours of eDiscovery within the context of North Carolina common and statutory law regarding the attorney-client privilege and work-product doctrine.” Defendants appealed an order setting forth a protocol that would allow plaintiffs’ discovery expert access to a school’s entire computer system prior to any opportunity for defendants to review and withhold documents that were potentially privileged or otherwise immune from discovery. The appellate court held that the trial court abused its discretion by compelling production through a protocol that would provide plaintiff’s agent with access to ESI in a way that would preclude reasonable efforts by defendants to avoid waiving any privilege, and vacated the protocol order. The appellate court identified several ways in which the trial court could resolve the discovery dispute in light of the court’s decision: (1) employ a special master or court-appointed independent expert; (2) provide defendants with some opportunity to review keyword search hits before production to plaintiffs; and (3) order that any documents produced under the protocol be treated as confidential and subject to a clawback without waiver of any privilege or work-product immunity.
08/07/2019Plaintiff's motion for sanctions for spoliation.Motion granted.Wilmoth v. Deputy Austin Murphy, No. 5:16-CV-5244 (W.D. Ark. Aug. 7, 2019)
U.S. District Judge Timothy Brooks granted plaintiff’s motion for relief regarding spoliation. Defendant, a deputy, used his personal cell phone to take photos of plaintiff and his injuries, pursuant to standard operating procedures at the time. The photos were used in the resulting investigation of the incident. Contrary to apparent usual practice, the photos were either never uploaded into the jail’s internal incident reporting system or were updated and then were subsequently misplaced or deleted. Either way, they were not produced during discovery. Plaintiff claimed the evidence was intentionally destroyed or make unavailable to him by defendant and requested an adverse inference instruction. The Court granted the motion for sanctions, based on defendant’s lack of candor in the discovery process and repeated failure to answer plaintiff’s discovery requests.
08/06/2019Plaintiffs' motion for sanctions for spoliation. Defendants' motion for sanctions for spoliation.Motions denied.Cox v. Swift Transportation Co. of Arizona, LLC, No. 18-CV-117-CVE-JFJ (N.D. Okla. Aug. 6, 2019)
U.S. District Judge Jodi Jayne denied both plaintiffs’ and defendants’ motions for spoliation sanctions. Each side alleged that the other have spoliated evidence concerning an accident between two tractor/trailers. Defendant Swift failed to preserve and was unable to produce electronic control module data, mobile communications data, and electronic driver logs. Swift, thinking it had no reason to preserve the data because plaintiff Cox caused the accident, did not preserve the data the ECM and communications data, which were overwritten automatically before Swift received plaintiffs’ spoliation letter. The Court, finding that Swift did not act with the intent to deprive plaintiffs of the use of that data in the litigation, declined to impose sanctions. Swift did place a litigation hold on the driver logs but failed to retain 1.5 hours of logs. The Court found this failure to be negligent but ruled that the negligent failure was not sufficient to support the requested sanctions. Plaintiffs Adams and Cox failed to preserve and were unable to produce ECM data from Cox’s vehicle as well as Cox’s paper driver logs. Relying on an analysis akin to that applied with respect to Swift’s failure to preserve data, the Court ruled that there was insufficient evidence to show intentional acts aimed at depriving defendants of evidence.
07/16/2019Defendant's motion of dismiss for fraud on the court. Defendant's motion for sanctions for spoliation.Motion to dismiss granted in part and denied in part. Motion for sanctions granted.Cordova v. Walmart Puerto Rico, Inc. et al., No. 16-2195 (ADC) (D.P.R. July 16, 2019)
U.S. District Judge Aida M Delgado-Colon denied defendant’s motion to dismiss but imposed as sanction an adverse inference. Defendant requested information about plaintiff’s social media accounts. Plaintiff responded that she once had an account but it was closed and she did not recall the name under which she had the account and no longer had access to the account. Plaintiff subsequently said that following the close of discovery she regained access to the account but did not initially mention this to her attorney. She later asserted that after regaining access she printed her profile and all information regarding her account. Defendant took issue with the production, arguing that it was incomplete, and seeking supplementation; plaintiff responded that she could not because in the interval she had deleted her account. The court found that plaintiff failed to comply with her FRCP 26(e) duty to supplement her Facebook-related discovery responses after she regained access to her account and when she deleted her account, warranting sanctions. The court ordered defendant to submit a proposed adverse-inference jury instruction regarding the content of plaintiff’s Facebook page and her deletion of the related account.
07/11/2019Plaintiffs' motion for sanctions for spoliation.Motion denied. Order that testimony or argument concerning disputed evidence be excluded at trial.Philmar Dairy, LLC v. Armstrong Farms, No. 18-cv-0530SMV/KRS (D.N.M. July 11, 2019)
U.S. Magistrate Judge Stephan Vidmar denied plaintiffs’ motion for spoliation sanctions for defendants’ failure to preserve and produce photos and excluded testimony or argument at trial concerning the photos. A fire allegedly destroyed 2,647 tons of hay, leaving only smoldering embers. Defendants’ farm manager did not see the fire but claimed to have taken photos, stored only on his cell phone, of the embers. Defendants never produced the photos to plaintiffs and by the time plaintiffs sued apparently the farm manager no longer possessed the photos; defendants’ first notice that plaintiffs intended to sue was the suit itself. Plaintiffs moved for sanctions base on the loss or destruction of the photos, arguing that defendants should have been put on notice of litigation by the fire itself and should have preserved the photos. The Court first determined that because the photos were ESI, FRCP 37(e) foreclosed reliance on the Court’s inherent authority to impose spoliation sanctions. The Court next ruled discovery of the alleged fire was not by itself sufficient to put defendants on notice and hence no duty to preserve the photos had been triggered. The Court then ruled that plaintiffs failed to show that defendants intentionally deprived them of the photos. Finally, the Court ruled that ruled that neither defendants nor plaintiffs would be allowed to mention the photos at trial as the probative value of testimony concerning them is low and potential prejudice powerful.
07/10/2019Appeal from denial of motion for new trial.Affirmed in part, reversed in part, and remanded for new trial.GN Netcom v. Plantronics, No. 18-1287 (3rd Cir. July 10, 2019)
Appellate Judges Smith, McKee and Fisher affirmed in part and reversed in part a District Court denial of a motion for default judgment with respect to deleted and unrecoverable emails and remanded the case for a new trial. The appellate court determined that the district court appropriately (1) concluded that the appellee acted in bad faith when it destroyed emails, (2) concluded that spoliation prejudiced the appellant, (3) and opted for the lesser sanction of a permissive adverse inference instruction instead of a default judgment. The appellate court found, however, that the district court erred in excluding expert testimony regarding the appellee’s spoliation, and error that could have affected the outcome of the case as it deprived the jury of testimony that would have been highly probative of whether the jury should adopt the permissive adverse inference.
07/08/2019Defendants' letter motion seeking cost-sharing for restoring data from backup tapes.Because data was not readily accessible, court ordered that if plaintiff wishes to pursue restoration it must share the cost.Tafolla v. County of Suffolk, No CV-17-4897 (E.D.N.Y. July 8, 2019)
U.S. Magistrate Judge A. Kathleen Tomlinson ruled that the parties should share the cost of restoring data from backup tapes. The court reached that result by determining that the data at issues was not readily accessible because it is is a format (stored on backup tapes) that needs to be restored or otherwise manipulated to be usable. If the requesting party wishes to have the responding party restore data for 3 custodians and 18 mailboxes from 21 backup tapes at an estimated cost of $26,430, then per the order the requesting party must bear 30% of the cost and the responding party 70%.
07/01/2019Defendant's motion to compel production of documents and metadata.Motion denied.Washington v. GEO Group, Inc., No. 17-5806 RJB (W.D. Wash. July 1, 2019)
U.S. District Judge Robert Bryan denied the requesting party’s motion to compel production of documents and metadata. As to the documents, the court found that the requesting party had failed to identify a specific response for production to which the producing party did not respond. As to the metadata, the court found that the responding party already had complied with an earlier production order to the extent that it was able, and that the requesting party had not shown that the metadata it sought was relevant and proportional to the needs of the case.
06/07/2019Plaintiff's motion for case-dispositive or lesser sanctions for spoliationMotion denied for case-dispositive sanctions. Motion granted for lesser sanctions.Univ. Accounting Serv., LLC v. Schulton, No. 3:18-cv-1486-SI (D. Or. June 7, 2019)
U.S. District Court Judge Michael Simon denied plaintiff’s motion for case-dispositive sanctions but granted a motion for lesser sanctions. An individual defendant admitted that four days after accepting service of a document subpoena he destroyed responsive evidence located on his personal computer and in his personal cloud storage account. About a month later, the individual defendant discovered and deleted a file containing responsive email messages in his cloud account, a file he had not realized was there. About four months after that, the day before a TRO hearing, the individual defendant found and destroyed a responsive file in another cloud account. Finding that all the requirements of FRCP 37(e)(2) had been met, the Court ruled that it intends to provide the jury with a permissive inference spoliation instruction that the individual defendant intended to deprive plaintiff of the use of responsive information in the litigation.
06/04/2019Plaintiff's motion to compel supplemental discovery responses.Motion denied.Russell v. Kiewit Corp., No. 18-2144-KHV (D. Kan. June 4, 2019)
U.S. Magistrate Judge James O’Hara denied plaintiff’s motion to compel defendants to produce all versions his PST files (nine, apparently) from plaintiff’s entire employment with defendants. Plaintiff argued that the contents of those files were “reasonably calculated to lead to the discovery of admissible evidence”, a standard the Court noted had been abandoned with the 2015 amendment to FRCP 26(b). Plaintiff argued that an agreed-upon protective order meant that defendants’ confidentiality and privilege concerns should be discounted; the Court disagreed, writing that “plaintiff has the card before the horse”. Plaintiff argued that it would be proportional to allow him to “‘see all emails in context maintained in his own email folders’ because it ‘equalizes access.'” The Court found that the opposite was the case – that the language in the request was not tied to plaintiff’s protected activity or his employment with the company, and that plaintiff had not shown how every email he sent or received was relevant to this action particularly in light of defendants’ production of 775 documents from email searches.
05/21/2019Plaintiff's motion for sanctions for spoliation.Motion denied without prejudice.Mafille v. Kaiser-Francis Oil Co., No. 18-CV-586-TCK-FHM (N.D. Okla. May 21, 2019)
U.S. Magistrate Judge Frank McCarthy denied without prejudice plaintiff’s FRCP 37 motion for sanctions for willful destruction of evidence. Defendant terminated plaintiff’s employment on 7/5/2018. Plaintiff sued on 10/23. On 10/29 defendant instructed plaintiff to preserve ESI. Defendant, however, did not preserve the company computer used by plaintiff but instead gave it to a charitable organization on 11/3. The Court found that defendant should have preserved the computer and that the defendant was solely and entirely at fault for not taking reasonable steps to do so. The Court also found, however, that plaintiff had not been prejudiced by this failure (“In this case there has been no showing that any information necessary to the prosecution of Plaintiffs’ claims or necessary to counter the defenses asserted is unavailable to them.”) and denied the motion without prejudice to reassertion.
05/10/2019Plaintiffs' motion for sanctions for spoliation.Motion granted.4DD Holdings, LLC v. United States, No. 15-945C, 2019 U.S. Claims LEXIS 494 (Fed. Cl. May 10, 2019)
U.S. Federal Claims Court Judge Eric Bruggink granted plaintiffs’ motion for sanctions against the Federal government for destroying relevant evidence it had a duty to preserve, awarding recovery of costs and fees and allowing for an adverse inference to be drawn. The Court applied the elements of FRCP 37(e)(2). First, the government had a duty to preserve sought-after ESI stored on select servers and laptops, and that duty arose well before the hard drives were shredded and the laptops reimaged. Next, the government did not take reasonable steps to preserve the ESI, both delaying nearly three months before issuing preservation notices, during which time hard drives were shredded, and continuing to allow laptops to be reimaged. The Court determined that the lost ESI could not be replaced by other discovery. The Court found that the government’s destruction of evidence prejudiced plaintiffs in their attempts to demonstrate infringement and damages. Finally, the Court concluded that the government intentionally deprived plaintiffs of the use of the destroyed information in litigation.
05/07/2019Dispute over extent to which receiving party may use contents of inadvertently produced putatively privileged documents.Receiving party may use contents to limited extent in resolving privilege issue.In re Keurig Green Mt. Single Serve Coffee Antitrust Litig., No. 14 MD 2542 (VSB)(HBP) (S.D. N.Y. May 7, 2019)
U.S. Magistrate Judge Henry Pitman ordered that a receiving party may use the contents of an inadvertently produced putatively privileged documents to challenge the producing party’s assertion of privilege. Earlier in the case, the Court had approved a stipulated FRE 502(d) protective order. The order contained conflicting two conflicting sentences concerning the use of inadvertently produced documents. To reach this result, the Court drew instruction from two earlier decisions (American Express v. Accu-Weather, Inc., 91 Civ. 6485 (RWS), 92 Civ. 705 (RWS), 1996 WL 346388 (S.D.N.Y. June 25, 1996) and Stinson v. City of New York, 10 Civ. 4228, 2014 WL 5090031 (S.D.N.Y. Oct. 10, 2014)) and the 2006 Advisory Committee Notes to FRCP 26(b)(5)(B). The Court noted that “Because no law or rule of professional responsibility prohibits a party from using inadvertently produced material to challenge the assertion of a privilege or other protection, it appears that the Federal Rules of Civil Procedure permit a party that receives an inadvertently produced privileged document to use the content of that document to challenge the assertion of privilege.”
05/02/2019Plaintiffs' motion for case-ending sanctions.Recommendation that sanctions be granted.Abbot Laboratories v. Adelphai Supply USA, 15 CV 5826 (CBA) (LB) (E.D.N.Y. May 2, 2019)
U.S. Magistrate Judge Lois Bloom issued a report and recommendation in response to a motion that “presents a cautionary tale about how not to conduct discovery in federal court.” Finding a fraud upon the Court, the judge used the court’s inherent powers as the basis for recommending that plaintiffs’ motion for sanctions be granted and that a default judgment should be entered against three of the defendants (the H&H defendants). From the beginning of discovery, the H&H proffered serial representations to the Court, many of which have been proven to be false. They repeatedly gave the Court numbers of responsive documents that did not add up; used search terms and ran searches designed to fail; attempted to shift blame to their prior counsel; failed to produce documents in accordance with court order; and intentionally withheld three categories of relevant documents from production. These actions freed two key witnesses to commit perjury at his deposition.
04/26/2019Plaintiff's motion to compel production.Motion granted in part and denied in part.Lawson v. Spirit Aerosystems, Inc., No. 18-1100-EFM-ADM (D. Kan. Apr. 26, 2019)
U.S. Magistrate Judge Angel Mitchell granted in part and denied in part plaintiff’s motion to compel, ordering the parties to comply with a seven-step ESI protocol laid out in the order. Per that protocol, (1) plaintiff is to identify up to seven categories of ESI he seeks, (2) for each category, defendant is to list the three custodians most likely to have relevant ESI and explain why it believes each custodian will have relevant ESI, (3) plaintiff will chose five custodians and propose search terms for each custodian, (4) defendant will search using those terms, sampling and proposed modified search terms as needed, (5) plaintiff and defendant will meet and confer to try to achieve an estimated responsive hit rate of at least 85%, (6) defendant will produce responsive ESI from the first five custodians by a set date, and (7) the parties will move on to the next five custodians.
04/26/2019Appeal of decision that state law does not impose duty on nonparties to preserve evidence based solely on foreseeability of litigation. Affirmed.Shamrock-Shamrock, Inc. v. Remark, No. 5D18-1987 (Fla. Dist. Ct. App. Apr. 26, 2019)
Judge Sasso of the Florida Fifth District Court of Appeal, affirming a summary final judgment, held that Florida law does not impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation. In the underlying action, plaintiff served six deposition notices on an individual who was not a party to the lawsuit. Only with the sixth notice did plaintiff include a document request. After receiving the first notice but before receiving the sixth notice, the individual obtained a new computer, destroyed her old one, did not retain any data from the old computer,a nd did not inform anyone that she was destroying the old computer. She also did not search the old computer for any information relevant to the notices she had received up to the time when she destroyed the machine. Plaintiff subsequently sued the individual. Both plaintiff and the individual brought motions for summary judgment regarding whether the individual had a duty to preserve her computer or its contents. Florida has an independent cause of action for third-party spoliation with six elements, all of which must be proven. The second element requires a legal or contractual duty to preserve relevant to the potential civil action, a duty the court found not to be present.
04/18/2019Defendant PMC's motion for summary judgment. Defendant P's motion for summary judgment. Plaintiff's motion for sanctions for spoliation.Defendants' motions denied. Plaintiff's motion granted in part and denied in part.DriveTime Car Sales Company, LLC v. Pettigrew (S.D. Ohio April 18, 2019)
U.S. District Court Judge George Smith denied plaintiff’s motion seeking a mandatory adverse inference for not preserving text messages. The responding defendant acknowledged that it had a duty to preserve text messages and had failed to take reasonable steps to do so. Plaintiff established that the text messages could not be restored or replaced through additional discovery. The Court found that plaintiff had not established the requisite intent and therefore refused to impose the sought-after sanction. The Court did order a lesser sanction, curative measures under FRPC 37(e)(1). At trial plaintiff may introduce evidence of the litigation hold letter and the responding defendant’s failure to preserve text messages and may argue for whatever inference it hopes the jury will draw. In turn the responding defendant may present its own admissible evidence and argue to the jury that it should not draw any inference from the responding defendant’s conduct. The Court also ruled that the non-responding defendant may move for a jury instruction the he be held harmless from the responding defendant’s failure to preserve text messages.
04/12/2019Plaintiff's motion for sanctions.Motion denied.Neely v. The Boeing Company, Case No. C16-1791-JCC (W.D. Wash. April 23, 2019)
U.S. District Court Judge John Coughenour denied plaintiff’s motion for sanctions. In response to plaintiff’s discovery demands, defendant initially produced some but not all of contents of a PST file – emails from 12/2014 to 3/24/2016. Plaintiff took issue with the production and defendant agreed to produce the remainder of the PST. Defendant gathered emails from various locations, deduplicated them, loaded them into Relativity, and from there produced the entire contents of the PST file. Plaintiff contended that defendant spoliated the email ESI by not producing the entire PST “in whole, untouched, pristine condition” as well as by producing only part of the contents initially and the rest later. The Court rejected these arguments, finding that ” bifurcation of the .PST file does not constitute destruction of the relevant evidence therein sufficient to support Plaintiff’s claim of spoliation” and that “Plaintiff has not established that Defendant acted with a culpable mind when it initially disclosed only part of the .PST file, as Defendant believed it had complied with Plaintiff’s discovery request by producing the relevant part of the .PST file.” Plaintiff also argued that defendant spoliated the PST because some files were still missing after defendant produced the complete PST. The Court rejected that claims on several bases, including that plaintiff had not met and conferred with defendant in this issue, had not established that the files could not be obtained through further discovery, and had not offered evidence that defendant acted with ill intent.
03/27/2019Plaintiff's motion for sanctions for spoliation.Motion denied.Wakefield v. Visalus, Inc., No. 3:15-cv-1857-SI (D. Or. Mar. 27, 2019)
U.S. District Judge Michael H. Simon denied as untimely plaintiff’s motion seeking sanctions for spoliation of ESI. More than two years elapsed between when plaintiff learning about the destruction of the ESI and the date when plaintiff brought her motion. To arrive at this conclusion, the Court looked at five timeliness factors and found plaintiff wanting. The five factors are: (1) how long after close of discovery the spoliation motion is made; (2) the temporal proximity between the spoliation motion and any motions for summary judgment; (3) whether spoliation motions are made on the eve of trial (a bad thing from the POV of those seeking sanctions); (4) whether there were any deadlines in the Rule 16 scheduling order governing filing of spoliation motions; and (5) the merit of the filing party’s explanations for why it did not file earlier.
03/27/2019Plaintiff's motion to compel production of ESI.Motion denied.Lareau v. Nw. Med. Ctr., No. 2:17-cv-81 (D. Vt. Mar. 27, 2019)
U.S. District Judge William K. Sessions III denied plaintiffs motion to compel defendant to produce relevant ESI from an initial population of approximate 24,000 emails, described as a “massive database” of information. Defendant had produced over 3,000 pages of documents. Plaintiffs sought more. The Court previously had ordered the parties to cooperate on this issue; that did not produce a workable solution. The Court found that defendant had tried to comply but that the information sought by plaintiffs was not reasonably accessible. Determining that additional efforts by defendant were unlikely to yield a significant quantity of responsive information, the Court decided that it would not order defendant to engage in further problem-solving.
03/27/2019Plaintiff's appeal of judgment. Judgment vacated and case remanded for new trial.Marshall v. Brown’s IA, LLC, 2019 PA Super 94 (Sup.Ct. of Pa. Mar. 27, 2019)
The Superior Court of Pennsylvania vacated the trial court judgment and remanded the case for a new trial, finding that the trial court errored in refusing to give an adverse inference instruction based on alleged spoliation of videotape evidence. Plaintiff fell in defendant’s store. Surveillance video captured the fall. Plaintiff requested that defendant retain the video for six hours prior to and three hours after the fall. Defendant decided to preserve video only for 37 minutes before and 20 minutes after the fall. At trial plaintiff sought an adverse inference, contending that the missing video would have contained dispositive information. The trial court disagreed, but nonetheless allowed plaintiff to argue to the jury that it should infer from defendant’s decision not to keep the video that the video was damaging to defendant. The appellate court found that plaintiff had placed defendant on notice to preserve arguably relevant video surveillance; defendant chose to preserve only an arbitrary fraction of the video requested; and therefore defendant’s conduct constituted spoliation.
03/20/2019Defendant's motion for sanctions for spoliation.Motion denied.Envy Hawaii LLC v. Volvo Car USA LLC, No. 17-00040 HG-RT (D. Haw. Mar. 20, 2019)
U.S. District Judge Helen Gillmor denied defendant’s motion for spoliation sanctions. Defendant claimed plaintiffs failed to preserve electronic dealer management system records maintained by CDK Drive and deleted emails from Google Enterprise accounts. Plaintiffs responded that any relevant records are available from third parties. As to the management system records, the Court found plaintiff had not subpoenaed records from CDK Drive and had not tried to retrieve the information from any other third parties and had not shown it did not have possession of or access to the information itself. Regarding the email, the Court found plaintiff had not sought any email or discovery directly from Google, had not demonstrated that Google Enterprise no longer had access to any of the deleted emails. Denying defendant’s motion, the Court instead wrote that defendant could have approximately two months during which it may issue subpoenas to obtain records from CDK Drive and/or Google.
03/13/2019Defendant's motion to suppress evidence obtained via subpoena.Motion denied.U.S. v. Therrien, No. 2:18-cr-00085 (D. Vt. Mar. 13, 2019)
U.S. District Judge Christina Reiss denied defendant’s motion to suppress subscriber information (including service uses by the account, the data the account was created, the date of time of last login, and IP addresses associated with the account) the government had obtained from Google by subpoena and without a warrant, allegedly in violation of the 4th Amendment. The Court deemed the information obtained via subpoena to consist of business records maintained by a third party, and therefore concluded that the information was subject to the third-party doctrine and thus not protected by the 4th Amendment.
03/04/2019Defendants' appeal of award of fees and costs including for e-discovery expenses.Award not warranted.Rimini Street, Inc., et al, v. Oracle USA, Inc., et al., 586 U. S. ____ (2019)
After a jury awarded plaintiff damages for copyright infringement, the District Court awarded fees and costs for, among other things, litigation expenses such as expert witnesses, e-discovery, and jury consulting. In making this award, the District Court relied upon the “full costs” language in the Copyright Act. The U.S. Supreme Court found that the award of litigation expenses was not warranted. “Full costs” allowed under the Copyright Act are limited to the costs specified by §§1821 and 1920. Those sections in turn specify the six categories of expenses that courts may award as costs: (1) clerk and marshall fees; (2) fees for certain transcripts; (3) printing and witness fees and disbursements: (4) fees for exemplification and copying costs for certain materials; (5) certain docket fees; and (6) compensation for court appointed experts and interpreters and costs for certain interpretation services. Asserting that none of those categories covers expert witnesses, e-discovery, and jury consulting, The Supreme Court focused on the meaning of “full” in the Copyright Act’s phrase “full costs”, concluding that the “full” in “full costs” does not expand the scope of costs covered and hence that the award of litigation expenses was not warranted.
03/04/2019Plaintiffs' motion for sanctions for spoliation.Motion granted in part and denied in part.Paisley Park Enters. v. Boxill, No. 0:17-cv-01212 (D. Minn., Mar. 5, 2019)
MN Magistrate Judge Tony Leung found discovery misconduct by defendants and ordered monetary sanctions consisting of fees, costs, expenses, and a $10,000 fine. Defendants had a duty to preserve text messages. They did not take reasonable steps to preserve the messages but instead actively destroyed the messages. Finally, the destroyed messages were no longer recoverable.
02/14/2019Plaintiff's motion for production of email from UK citizen. Motion granted.Finjan, Inc. v. Zscaler, Inc., Case No. 17-cv-06946-JST (KAW), 2019 WL 618554 (N.D. Cal. Feb. 14, 2019)
In a patent infringement lawsuit, U.S. Magistrate Judge Kandis Westmore granted plaintiff’s request that defendant produce emails of a United Kingdom citizen who previously had directed plaintiff’s U.K. sales. Defendant had asserted that it could not produce those messages without violating GDPR privacy requirements. In reaching the decision to order production of the email, the Court considered five factors: (1) the importance of the requested documents to the litigation; (2) the degree of specificity of the request; (3) whether the information originated in the U.S.; (4) the availability of alternative means of securing the information; and (5) the extent to which noncompliance would undermine important interests of the U.S. The Court found that each factor favored disclosure: (1) the requested documents are directly relevant; (2) the search terms were limited and targeted; (3) although the individual is located in the U.K., more importantly the defendant is an American company; (4) it i not clear that domestic custodians would have the same information; and (5) there is a strong American interest in protecting American patents, while the U.K. interest in protecting its citizen’s privacy can largely be addressed via the protective order in place. Finally, the Court find that the burden on the defendant did not weigh against disclosure.
02/12/2019Plaintiff's motion to compel return of privileged documents.Motion granted.Vigor Works v. White Skanska, JV, CA 16-02146-BLS1 (Ma. Superior Ct. Feb. 12, 2019)
Massachusetts Superior Court Justice Mitchell Kaplan determined that documents had been produced inadvertently as defined by the clawback agreement entered into by the parties and ruled that the receiving party needed return or destroy them. One document was produced after the litigation support firm assisting the producing party failed to properly execute an agreed-upon search protocol. When the producing party realized the error, it asked for return of the document. The second document consisted of a scanned document apparently accidently added to another document and mistakenly treated for purposes of review as a single document. The Court decided that “the disclosure while arguably preventable with more careful attention was nonetheless inadvertent.”
02/12/2019Defendants' motion for leave to amend counterclaim.Motion denied.DR Distrib., LLC v. 21 Century Smoking, Inc., No. 12 CV 50324 (N.D. Ill. Feb. 12, 2019)
02/07/2019Plaintiffs' motion for sanctions for spoliation.Motion denied.Stovall v. Brykan Legends, LLC, No. 17-2412-JWL (D. Kan. Feb. 7, 2019)
U.S. Magistrate Judge denied plaintiff’s motion for spoliation sanctions on two grounds. First, the Court found that plaintiff failed to meet the third of three requirements of FRCP 37(e). Defendant had a duty to preserve the surveillance video in question. Defendant did not take any steps to preserve the video. Plaintiff did not, however, prove to the Court’s satisfaction that the video could not be replaced or restored. Second, the Court found that even if plaintiff had met all three requirements, plaintiff had not proven defendant’s failure to preserve the video was the result of bad faith.
02/04/2019Defendants' motion to compel production of information and documentation.Motion granted in part and denied in part.Locke v. Swift Transportation Co., 2019 WL 430930 (W.D. Ky. Feb. 4, 2019)
U.S. Magistrate Judge Lanny King granted defendants’ motion to compel production of social networking site content, limiting the scope to plaintiff’s Facebook and other social media accounts from a six-month period regarding physical activities and mental status, and set forth a process for the parties to follow. To arrive at this results, the Court looked to the FRCP 26(b)(1) relevance standard and in the particularity and proportionality requirements of FRCP 34(a-b).
01/25/2019Permissive interlocutory appeal as to whether one qualifies as aggrieved person under Biometric Information Privacy Act.Question of law answered in the affirmative. Judgment of appellate court reversed and cause remanded to circuit court.Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (Jan. 25, 2019)
The Illinois Supreme Court unanimously hold that a plaintiff does not need to allege actual injuries or damages to state a claim under the Illinois Biometric Information Privacy Act.
01/24/2019Defendant's appeal of order denying motion to compel access to plaintiff's devices, email accounts, and social media accounts.Order reversed and motion to compel access granted.Vasquez-Santos v. Mathew, 8210N, 158793/13 (Appellate Division of the Supreme Court of New York, First Department, January 24, 2019)
Reversing a lower court decision, a New York appellate court ruled that private social media information was discoverable and granted defendant’s motion to compel access to plaintiff’s devices, email accounts, and social media accounts to obtain evidence of plaintiff’s activities.
01/16/2019Non-party motion to quash subpoena.Motion denied.Fair v. Commc’ns Unlimited Inc., No. 4:17 CV 2391 RWS (E.D. Mo. Jan. 16, 2019)
FRCP 26(b) proportionality and 45(a) subpoenas – U.S. District Judge denied motion to quash plaintiff’s subpoena seeking information, including application data and email metadata, from a non-party. The Court found that plaintiff had made reasonable efforts to obtain the information from the defendants; was seeking information relevant to liability and damages issues; and could, working with the others involved, adequately address issues relating to personally identifiable, sensitive, or confidential commercial information.
01/08/2019Defendant's motion to compel responses to discovery requests.Motion denied.Santana v. MKA2 Enterprises, Inc., 2019 WL 130286 (D. Kan. 2019)
FRCP 26(b) proportionality – U.S. Magistrate Judge denied defendant’s motion to compel production of all cell phones used by plaintiff during and after his employment with defendant. Instead, the Court ordered plaintiff to produce complete copies of all responsive text messages. The Court found the request for all cell phones to be unduly burdensome and invasive and not proportional to the needs of the case. That contrasted with defendant’s much narrower demand for test messages, which the Court found to be sufficiently narrow and targeted.
01/03/2019Appeal from civil contempt order.Order reversed.Facebook, Inc. v. Wint, No. 18-CO-958 (D.C. App. Jan. 3, 2019)
Stored Communications Act – A panel of District of Columbia Court of Appeals judges reversed a lower court order holding appellant Facebook in civil contempt for refusing to comply with a subpoena duces tecum seeking communications related to certain accounts. According to the Court, on its face the Stored Communications Act prohibits Facebook from complying with the subpoenas. There are nine enumerated exceptions to the Act’s prohibition, but the Court found that none of them applied in this case.
12/28/2018Plaintiff's motion to compel restoration and production.Motion granted. Cost sharing ordered.OptoLum, Inc. v. Cree, Inc., 1:17CV687 (M.D. N.C., Dec. 28, 2018)
FRCP 26(b) proportionality – U.S. District Judge granted plaintiff’s motion to compel restoration and production of e-mail attachments, with the cost of restoration to be split by the parties. During discovery, plaintiff realized that defendant had produced email messages without their attendant attachments; more than 750 attachments appeared not to have been produced. This had happened because when defendant earlier had moved from one email system to another, those attachments had not been moved to the new system. An ESI Order was in place in the matter, which required a requesting party to show good cause before the responding party had to restore data and in those circumstances allowed for cost shifting. The Court found that some of the sought-after attachments appeared likely to be relevant; that the “relatively minimal cost of restoring” the system ($13,500) was proportional; and that the discovery sought is not “unreasonably cumulative” (emphasis in original).
12/06/2018Defendants' motion for protective order. Plaintiff's cross-motion for order compelling production.Motion for protective order denied. Cross-motion to compel granted in part.Miller v. Sauberman, 2018 WL 6413541 (N.Y. 2018)
New York trial court judge denied defendant’s motion for a protective order and granted plaintiff’s cross motion for an order compelling production of, among other things, the audit trail and metadata for plaintiff’s patient care records. The Court was not persuaded by defendant’s assertion that producing the metadata would cost approximately $250,000. Instead, the Court agreed with plaintiff that (a) she was entitled to at least some of the metadata and (b) that metadata likely could be produced at a lower cost than defendant estimated.