April 26, 2016 eDiscovery Case Law Update

Florida State Court Decisions

 

Eveland v. State of Florida

            2016 WL 1273264 (Fla. 2nd DCA April 1, 2016)

 

            Trial court’s order revoking a defendant's community control (probation) was reversed because the testimony of the defendant’s parole officer was insufficient to authenticate the electronic records of the defendant’s electronic GPS monitoring device.

 

Maslak v. Wells Fargo Bank, N.A.

             2016 WL 1552803 (Fla. 4th DCA April 6, 2016)

 

            Trial court erred in admitting a “screen shot” of a computer record as evidence of a borrower’s payment history because the witness did not lay a proper foundation describing (i) the loan servicer's procedures for inputting payment information into the loan servicer’s electronic information system and (ii) the manner in which the loan servicer received and processed payments.

 

 

Florida Federal Court Decisions

 

Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd.

             2016 WL 1105297 (S.D. Fla. March 22, 2016)

 

             Party that admitted deletion of text messages after the duty to preserve arose was not sanctioned under amended Rule 37(e), Federal Rules of Civil Procedure, because the Court determined (i) there was no prejudice to the requesting party and (ii) there was no evidence of an “intent to deprive” or bad faith. The Court also held that amended Rule 37(e) does not permit an adverse inference instruction or other severe sanctions against a “relatively unsophisticated party” whose destruction of electronic evidence was negligent rather than willful.

 

Hankinson v. Class Action R.T.G. Furniture Corp.

            2016 WL 1182768 (S.D.Fla. March 28, 2016)

 

            The relevance and proportionality factors in amended Rule 26(b)(1), Federal Rules of Civil Procedure, were considered by the Court in determining whether to grant the plaintiffs’ motion to compel.

 

 

Selected Non-Florida Federal Court Decisions

 

Best Payphones v. The City of New York

             2016 WL 792396 (E.D.N.Y. Feb. 26, 2016)

 

             Amended Rule 37(e), Federal Rules of Civil Procedure, only addresses sanctions for failure to preserve electronically stored information, and not tangible things, including paper documents.

 

Noble Roman’s, Inc. v. Hattenhauer Distrib. Co.

             2016 WL 1162553 (S.D.Ind. March 24, 2016)

 

             A requesting party’s subpoena constituted “discovery run amok,” where the requesting party never attempted to demonstrate that requested information was proportional to the needs of the case, as required by amended Rule 26(b)(1), Federal Rules of Civil Procedure.

 

In re: Subpoena of American Nurses Association

            2016 WL 1381352 (4th Cir., April 7, 2016)

 

            The United States Court of Appeals for the Fourth Circuit determined that a non-party’s attorney’s fees which are “necessary to a discovery proceeding under Rule 45 are expenses that may be shifted to the discovery-seeking party.”  The Court also permitted the non-party’s e-discovery vendor fees to be shifted to the discovery-seeking party. 

March 22, 2016 eDiscovery Case Law Update

Florida State Court Decisions

 

 

Bank of New York Mellon v. Clark

            183 So.3d 1271, 1272 (Fla. 1st DCA 2016)

 

           Trial court’s dismissal of foreclosure claim as a sanction for discovery violations was an abuse of discretion because the trial court did not make explicit written findings pursuant to the six “Kozel” factors.  Specially concurring, however, Judge Bradford (Brad) L. Thomas addressed the issue of discovery abuse and stated:

 

Nevertheless, we cannot and do not countenance actions in which litigants disregard discovery deadlines, file meaningless objections, insert boilerplate responses, and file repeated motions for additional time to respond, only to provide insufficient information or documents.  When legal decisions are unduly delayed because one party refuses to perform their legal obligations to comply with discovery rules, it is entirely appropriate for a trial court to carefully consider sanctions when raised by the non-offending party. It is critical to remember that discovery abuses are not merely private matters between private litigants, but are public abuses that violate citizens' proper expectation that the judiciary will ensure that cases are timely resolved.

 

Civil cases lingering in courts for years without final resolution because of lengthy discovery disputes should not be tolerated in courts of law. All involved, judges and litigants, have a solemn responsibility to ensure that inexcusable delays in civil legal proceedings do not occur, and where such are documented, that the delays are appropriately punished. I commend the trial court for its efforts here, but I concur, as I must, for further proceedings in accordance with Kozel.

 

Restrepo v. Carrera

            2016 WL 231955 (Fla. 3d DCA 2016)

 

            Trial court’s order directing petitioner to “provide cell phone numbers and/or names of providers used during the six (6) hour period before the time of the crash and the six (6) hour period after the crash” violated petitioner’s Fifth Amendment rights and constituted a departure from the law from which petitioner had no adequate remedy on appeal.

 

Prater v. Comprehensive Health Center

            2016 WL 231330 (Fla. 3d DCA 2016)

 

            Trial court’s order striking plaintiff’s pleadings and entering final judgment in favor of the defendants was reversed because the severity of the sanctions were not commensurate with the violation at issue: the disclosure of an electronic copy of a single page of evidence on the eve of the first day of jury selection.  There was also not competent substantial evidence to support the trial court’s conclusion that each of the Kozel factors had been met, including proof that plaintiff’s counsel’s actions were “willful, deliberate or contumacious.”

 

David v. Textor

            2016 WL 64743 (Fla. 4th DCA 2016)

 

            Trial court’s ex parte injunction prohibiting cyberstalking was reversed because the conduct alleged in the petition (emails, online postings and a text message) was not cyberstalking and the injunction was a prior restraint on speech which violated the First Amendment.  

 

Wells Fargo Bank, N.A. v. Balkissoon

           183 So.3d 1272 (Fla. 4th DCA 2016)

 

             Trial court erred in excluding electronic evidence of loan history where proper foundation under business records exception was laid by qualified witness.

 

Bank of N.Y. Mellon v. Johnson

            2016 WL 347355 (Fla. 5th DCA 2016)

 

              Trial court erred in excluding electronic evidence of loan history where proper foundation under business records exception was laid by qualified witness.

 

Florida Federal Decisions

 

 

In re: Takata Airbag Prod. Liab. Litig.

            MDL No. 5-2599 (S.D.Fla. March 1, 2016)

 

            District Court agreed with defendants’ request in a products liability case to redact seven irrelevant categories of commercially sensitive information and to withhold irrelevant and commercially sensitive “parent” documents and other documents from responsive document “families.”  Citing Chief Justice Roberts, the concept of proportionality and amended Federal Rule 26(b)(1), the District Court determined that (i) a party is not entitled to receive every piece of relevant information and (ii) a party is similarly not entitled to receive every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld.   

Florida State Court Decisions

 

 

Bank of New York Mellon v. Clark

            183 So.3d 1271, 1272 (Fla. 1st DCA 2016)

 

           Trial court’s dismissal of foreclosure claim as a sanction for discovery violations was an abuse of discretion because the trial court did not make explicit written findings pursuant to the six “Kozel” factors.  Specially concurring, however, Judge Bradford (Brad) L. Thomas addressed the issue of discovery abuse and stated:

 

Nevertheless, we cannot and do not countenance actions in which litigants disregard discovery deadlines, file meaningless objections, insert boilerplate responses, and file repeated motions for additional time to respond, only to provide insufficient information or documents.  When legal decisions are unduly delayed because one party refuses to perform their legal obligations to comply with discovery rules, it is entirely appropriate for a trial court to carefully consider sanctions when raised by the non-offending party. It is critical to remember that discovery abuses are not merely private matters between private litigants, but are public abuses that violate citizens' proper expectation that the judiciary will ensure that cases are timely resolved.

 

Civil cases lingering in courts for years without final resolution because of lengthy discovery disputes should not be tolerated in courts of law. All involved, judges and litigants, have a solemn responsibility to ensure that inexcusable delays in civil legal proceedings do not occur, and where such are documented, that the delays are appropriately punished. I commend the trial court for its efforts here, but I concur, as I must, for further proceedings in accordance with Kozel.

 

Restrepo v. Carrera

            2016 WL 231955 (Fla. 3d DCA 2016)

 

            Trial court’s order directing petitioner to “provide cell phone numbers and/or names of providers used during the six (6) hour period before the time of the crash and the six (6) hour period after the crash” violated petitioner’s Fifth Amendment rights and constituted a departure from the law from which petitioner had no adequate remedy on appeal.

 

Prater v. Comprehensive Health Center

            2016 WL 231330 (Fla. 3d DCA 2016)

 

            Trial court’s order striking plaintiff’s pleadings and entering final judgment in favor of the defendants was reversed because the severity of the sanctions were not commensurate with the violation at issue: the disclosure of an electronic copy of a single page of evidence on the eve of the first day of jury selection.  There was also not competent substantial evidence to support the trial court’s conclusion that each of the Kozel factors had been met, including proof that plaintiff’s counsel’s actions were “willful, deliberate or contumacious.”

 

David v. Textor

            2016 WL 64743 (Fla. 4th DCA 2016)

 

            Trial court’s ex parte injunction prohibiting cyberstalking was reversed because the conduct alleged in the petition (emails, online postings and a text message) was not cyberstalking and the injunction was a prior restraint on speech which violated the First Amendment.  

 

Wells Fargo Bank, N.A. v. Balkissoon

           183 So.3d 1272 (Fla. 4th DCA 2016)

 

             Trial court erred in excluding electronic evidence of loan history where proper foundation under business records exception was laid by qualified witness.

 

Bank of N.Y. Mellon v. Johnson

            2016 WL 347355 (Fla. 5th DCA 2016)

 

              Trial court erred in excluding electronic evidence of loan history where proper foundation under business records exception was laid by qualified witness.

 

Florida Federal Decisions

 

 

In re: Takata Airbag Prod. Liab. Litig.

            MDL No. 5-2599 (S.D.Fla. March 1, 2016)

 

            District Court agreed with defendants’ request in a products liability case to redact seven irrelevant categories of commercially sensitive information and to withhold irrelevant and commercially sensitive “parent” documents and other documents from responsive document “families.”  Citing Chief Justice Roberts, the concept of proportionality and amended Federal Rule 26(b)(1), the District Court determined that (i) a party is not entitled to receive every piece of relevant information and (ii) a party is similarly not entitled to receive every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld.   

March 7, 2016 eDiscovery Case Law Update

Florida Decisions

 

 

Brown Jordan International v. Carmicle

            2016 WL 815827 (S.D.Fla. March 2, 2016)

           

Adverse inference—rather than dismissal or default—was the appropriate sanction under old and new versions of Federal Rule 37(e), where a party deliberately destroyed (or made inaccessible) ESI stored on iPhones, iPads and laptops.

 

Selected Non-Florida Decisions

 

 

In the Matter of the search of an Apple iPhone seized during the execution of a search warrant

            Case No. ED 15-0451M (C.D.Ca February 16, 2016)

 

            Order granting the government’s request to require Apple to assist law enforcement agents in enabling the search of a digital device seized in the course of a previously issued search warrant related to last year’s mass shooting in San Bernandino, California.    

 

 

In re: Order requiring Apple, Inc. to assist in the execution of a search warrant issued by this Court

            Case No. 1:15-mc-01902-JO (E.D.N.Y. February 29, 2016)

 

            Order denying the government’s request for an order requiring Apple to bypass the passcode security on an Apple device related to a criminal defendant in a Federal drug case.

 

Federal Judges Survey re: E-Discovery Best Practices and Trends

 

             This is a survey of 14 Federal judges and 22 e-discovery attorney’s which covers topics such as attorney e-discovery competency, emerging technology trends and the anticipated impact of the 2015 amendments to the Federal Rules of Civil Procedure.  The survey was conducted by Exterro and can be found HERE

February 1, 2016 eDiscovery Case Law Update

Florida Decisions

 

Lanard Toys, Ltd. v. Dolgencorp, LLC,

Case No. 3:15-cv-849-J-34PDB (M.D. Fla. January 21, 2016)

 

            The 2015 amendment to Rule 26(b)(1) reinforces the obligations of parties to consider the proportionality factors in propounding and responding to discovery requests.  Also, parties that fail to discuss ESI issues at the Rule 26(f) conference may be precluded from later seeking relief from the Court for issues not discussed during the Rule 26(f) conference.

 

Selected Non-Florida Decisions

 

Brinker v. Normandins,

2016 WL 270957 (N.D. Cal. January 22, 2016)

 

            The scope of permissible discovery under Rule 26, as amended in 2015, now requires consideration of relevance and proportionality factors.  Also, the presence of a privileged communication in an email does not extend privileged status to other facts or statements in the same email.

 

Nuvasive v. Madsen Medical, Inc.,

Case No. 13-cv-2077 (S.D. Cal. January 26, 2016)

 

            Adverse inference sanction vacated based on 2015 revisions to Rule 37 (no proof of intentional destruction), but Court still allowed the parties to present evidence to the jury regarding the loss of ESI, and the jury may consider such evidence in making its decision.

 

Gilead Sciences v. Merck,

2016 WL 146574 (N.D. Cal. January 13, 2016)

 

            Party seeking discovery must first show that discovery sought is proportional to the needs of the case.  Requesting party’s motion to compel denied because the request was “precisely the kind of disproportionate discovery that Rule 26 – old or new – was intended to preclude.”

© 2015 by ACEDS Jacksonville

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