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The Most Important Plaintiff eDiscovery Cases of 2014

Posted on November 26th, 2014

The Year in Electronic Discovery: Part I

Because electronically stored information (ESI) is now the main source of evidence in most civil litigation, courts are building case law every day that affects plaintiff trial attorneys. In Part I of our 2014 Year in Review, we highlight the most important recent cases regarding ESI formatting, native files, metadata, search terms disputes, and spoliation regarding electronic discovery.

In Part II of our Year in Review, coming soon, we will review the most influential cases regarding predictive coding, inadvertent disclosure, forensic imaging, and ethical duties regarding electronic discovery.

So what happened in 2014?

ESI Formatting, Native Files, and Metadata Issues

Perea v. Conner and State Farm[1] PDF production format of Plaintiff’s scanned “pain journal” deemed sufficient pursuant to FRCP 34 because Defendant’s initial document request failed to specify ESI formatting requirements and failed to request metadata.

Al-Daiwa, LTD, v. Apparent, Inc., et al.[2] Defendants required to re-produce their ESI production in native format with metadata after failing to do so the first time.

Wellin v. Wellin[3] Non-party witnesses failed to timely object to request for production in native file format with metadata. The court deemed the failure to object a waiver and required the non-party to produce native files.

Dixon v. Experian Information Solutions, Inc. and Green Tree Servicing, LLC[4] Defendant ordered to re-produce documents in native format—as Plaintiff had initially requested—after first producing in PDF file format.

Mancino v. Fingar Insurance Agency[5] Defendant ordered to re-produce its document production in TIFF formatting with metadata (rather than hard copy). Court refused Defendant’s request to shift costs for the reproduction onto Plaintiff and ordered Defendant to pay all costs. See also Brandofino Commications, Inc. v. Augme Technologies, Inc.[6] (similarly ordering Defendant to convert original PDF production into TIFF format with metadata).

Search Terms in ESI

Lewis v. Bay Industries, et al.[7] Court held that simply because a document contains a key-word search term does not mean that it is automatically discoverable; rather, key-words and search terms are tools that can be used to uncover relevant and admissible evidence.

McNabb v. City of Overland Park[8] Court found that Plaintiff did not make a showing that searching for an additional 35 key-word search terms would produce additional relevant evidence, and thus refused Plaintiff’s request that Defendant supplement its production by searching for those terms.

Procaps S.A. v. Patheon, Inc.[9] Plaintiff headquartered in Columbia must craft search terms in close collaboration with Spanish speaking custodians to ensure that search terms are those actually used by the custodians (and not simply direct translations from the English search terms).

Spoliation and Sanctions Regarding ESI

Novick v. AXA Network[10] Court issued an adverse inference jury instruction and imposed monetary sanctions where Defendant failed to search for and properly preserve audio recordings and email. Court rejected Defendant’s unsubstantiated claim of “human error.”

Broadspring, Inc. v. Congoo, LLC[11] Court held that Defendant’s failure to preserve instant messages constituted grossly negligent spoliation (see also Calderon v. Corporacion Puertorrique A De Salud,[12] where the court similarly issued an adverse inference instruction because of spoliated text messages).

The Security National Bank of Sioux City v. Abbott Laboratories[13] Federal judge in Iowa enters an unusual sanction against Defendant’s counsel to reprimand them for obstructionist discovery practices: defendant’s counsel must create and produce an instructional video for its firm’s internal use that demonstrates how to exercise civility during discovery.

Brown v. Tellermate Holdings Ltd.[14] In an employment termination case, court held that Defendant spoliated ESI where Defendant failed to properly implement a document retention policy. The court ordered that, due to the spoliation, Defendant was prohibited from relying upon any evidence that it terminated Plaintiff’s employment for performance-related reasons, either during trial or summary judgment.

YellowBook Inc., v. Heller & Heller and Mark Heller[15] Defendant’s failure to comply with discovery obligations was so egregious that court struck Defendant’s answer in its entirety (contrast with Ingrid & Isabel, LLC v. Baby Be Mine, LLC et al.,[16] where Defendants almost faced issue preclusion as sanction for spoliation but avoided it by providing ESI at the eleventh hour).

Cornelius v. Bae Systems Information Solutions, Inc.[17] Plaintiff’s case dismissed in its entirety and attorney fee sanctions imposed for spoliation after forensic expert testimony concluded that Plaintiff had “wiped” his iPhone of relevant evidence in defiance of a court order. (See also Slep-Tone Entertainment Corporation and Piracy Recovery LLC, et al. v. Grantino et al.,[18] Plaintiff granted summary judgment regarding liability after Court found that Defendant acted willfully and in bad faith by using a specialized computer-wiping software to delete highly relevant data from his computer.)

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[1] No. CIV-13-0697 KG/LAM (D.NM Sept. 26, 2014).

[2] No. C 13-04156 VC (LB) (N.D. Cal. July 28, 2014).

[3] Nos. 2:13-cv-1831-DCN, 2:13-cv-3595-DCN (D. S.D. Jul. 14, 2014).

[4] (N.D. Ind. June 25, 2014).

[5] Docket No. 653754/2012 (Sup. Ct. N.Y. County Jan. 2, 2014).

[6] 2014 NY Slip Op 50077(U).

[7] Case No. 12-C-1204 (E.D.Wis. Sept. 30, 2014).

[8] Case No. 12-CV-2331 CM/TJJ (D. Kans. April 16, 2014).

[9] Case No. 12-24356-CIV-GOODMAN (S.D.Fla. February 28, 2014).

[10] No. 07-CV-7767(AKH)(KNF)(S.D.N.Y. October 22, 2014).

[11] No. 13-CV-1866(JMF) S.D.N.Y. August 20, 2014.

[12] 2014 WL 171599 (D. Puerto Rico).

[13] No. C 11-4017-MWB (N.D. Iowa July 28, 2014).

[14] Case No. 2:11-cv-112 (S.D. Ohio July 1, 2014).

[15] (N.Y. Sup. June 10, 2014).

[16] Case No. 13-cv-01806-JCS (N.D.Cal. April 1, 2014).

[17] Case No. 1:13-cv-00825 AJT/TCB (E.D.Virginia April 24, 2014).

[18] No. CV 12-298 TUC DCB (D.Ariz. January 8, 2014).

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