Our Insights on eDiscovery

Last October, we covered a case – Commonwealth v. Koch, No. 1669-MDA-2010, 2011 Pa. Super. LEXIS 2716 (Sept. 16, 2011) – where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender’s identity. That case, where Amy N. Koch was originally convicted at trial on drug charges (partially due to text messages found on her cell phone), is now being appealed to the state Supreme Court.

Yesterday, we discussed a case where the court denied a criminal defendant’s attempt to quash a subpoena of his Twitter account information. Now it’s Twitter’s turn to file a motion to quash the court’s order. Filed this past Monday (May 7), the motion seeks to quash the order based on the grounds that the order imposes an undue burden on Twitter for three reasons including the reason that it forces them to “violate federal law”.

In People v. Harris, Criminal Court Judge Matthew A. Sciarrino, Jr. ruled that the defendant lacked standing to move to quash the prosecution’s subpoena served upon Twitter, a third-party in the case, for records of the defendant’s Twitter account. The defendant was a protester arrested during a march on the Brooklyn Bridge as part of the Occupy Wall Street movement, and in prosecuting the case, the prosecution sought his Twitter records for the time period relevant to the defendant’s involvement in the march.

The trend for defendants requesting plaintiffs to be responsible for eDiscovery costs when they lose is continuing. Sometimes that request is granted, at least partially, as in this case and this case. In another case, taxation of eDiscovery costs was initially granted, but then reversed due to the parties’ agreement to split the costs. Then, there’s the case of Race Tires America, Inc. v. Hoosier Racing Tire Corporation. Last May, the winning defendants were awarded $367,000 as reimbursement for eDiscovery costs. (Hoosier Daddy!) But, then in March of this year, an appellate court reversed all but $30,370 of those costs, implementing a narrow interpretation of 28 U.S.C. § 1920(4) for assigning those costs. Now, a new case addresses the issue of taxation of costs once again.

In approving a motion for expedited discovery in United Factory Furniture Corp. v. Alterwitz, Magistrate Judge Cam Ferenbach granted the plaintiff’s motion for a mirror-imaging order after determining the benefit outweighed the burden of the discovery, and it denied as unnecessary the plaintiff’s motion for an order to preserve evidence and a preliminary injunction from spoliation of evidence.