Our Insights on eDiscovery

In Sherman v. Rinchem Co., the plaintiff in a defamation case against his former employer appealed the district court’s denial of both his summary judgment motion and request for an adverse inference jury instruction. The district court had decided the case under Minnesota law, which “provides that ‘even when a breach of the duty to preserve evidence is not done in bad faith, the district court must attempt to remedy any prejudice that occurs as a result of the destruction of the evidence.’” In contrast, as the Eighth Circuit pointed out, in this case where the parties had diversity, and a question remained as to whether state or federal spoliation laws were applicable, federal law requires “a finding of intentional destruction indicating a desire to suppress the truth” in order to impose sanctions.

In Robinson v. Jones Lang LaSalle Americas, Inc., Oregon Magistrate Judge Paul Papak found that social media is just another form of electronically stored information (ESI), stating “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms. I therefore fashion a single order covering all these communications.”

As noted in SiliconBeat and ARN, Judge William Alsup ordered Oracle on Tuesday to pay Google $1 million as reimbursement for Google’s fees for a court-appointed expert in their court battle over intellectual property and Google’s Android software. However, the ruling is only a partial victory for Google, who was seeking $4 million from Oracle in reimbursement of costs associated with the case.

Our 501st post on the blog addresses S2 Automation LLC v. Micron Technology, where New Mexico District Judge James Browning ordered the plaintiff’s attorneys to disclose the search strategy their client used to identify responsive documents, based on Federal Rule 26(g) that requires attorneys to sign discovery responses and certify that they are “complete and correct.”